KHENYEIversusNEW INDIA ASSURANCE CO. LTD. & ORS.

                         (2015] 5 S.C.R. 158


A                             KHENYEI

                                  v.
            NEW INDIAASSURANCE CO. LTD. & ORS.
B                (Civil Appeal No. 4244of2015 etc.)

                            MAYO?, 2015.

    [H.L.DATTU, CJI., S.A. BOBDE AND ARUN MISHRA,JJ.]
c          ·Torts - Composite negligence - Injuries caused by
    combined wrongful act of joint tort-feasors - Liability to pay
    compensation - Held: In such cases, the liability is joint and
    several - The claimant has the right to recover the entire
o   amount from the easiest target/solvent defendant -
    Apportionment of compensation between the tort-feasors by
    determining their extent of negligence vis-a-vis the claimant
    is not permissible - Determination of the extent of their
    negligence is only for the purpose of their inter-se liability.
E
          Negligence - Contn"butory negligence and composite
    negligence- Difference between.

           Allowing the appeals, the Court
F        HELD: 1.1 In a case of accident caused by
  negligence of joint tort-feasors, all the persons who aid
  or counsel or direct or join in committal of a wrongful
  act, are liable. In such case, the liability is always joint
G and several. The extent of negligence of joint tort-feasors
  in such a case is immaterial for satisfaction of the claim
  of the plaintiff/claimant and need not be determined by
  the court. The liability of each and every joint tort-feasor
  vis-a-vis the plaintiff/claimant cannot be bifurcated as it
H is joint and several liability. In the case of composite
                                 158
    KHENYEI v. NEW INDIAASSURANCE CO. LTD.                159


negligence, apportionment of compensation between A
tort feasors for making payment to the plaintiff is not
permissible as the plaintiff/claimant has the right to
recover the entire amount from the easiest targets/
solvent defendant. [Para 4] [163-G-H; 164-A-C]
                                                            B
       1.2 In case all the joitlt tort-feasors have been
impleaded and evidence is sufficient, it is open to the
court/tribunal to determine inter-se extent of composite
negligence of the drivers. However, determination of the
extent of negligence between the joint tort-feasors is only C
for the purpose of their inter-se liability so that one may
recover the sum from the other after making whole of
payment to the plaintiff/claimant to the extent it has
satisfied the liability of the other. In case both of them
                                                            0
have been impleaded and the apportionment/ extent of
their negligence has been determined by the court/
tribunal, in main case, one joint tort-feasor can recover
the amount from the other in the execution proceedings.
[Para 18] 178-G-H; 179-A-B]                                 E

       1.3 It would not be appropriate for the court/
tribunal to determine the extent of composite negligence
of the drivers of two vehicles in the absence of
impleadment of other joint tort-feasors. In such a case, F
impleaded joint tort-feasor should be left, in case he so
desires, to sue the other joint tort- feasor in independent
proceedings after passing of the decree or award. [Para
18) [179-C]
                                                            G
       1.4 In the instant case, there is determination of
inter-se liability of composite negligence to the extent of
negligence of 2/3rd and 1/3rd of respective drivers. Thus,
the vehicle -trailor-truck which was not insured with the
insurer, was negligent to the extent of 2/3rd. It would be H
160      SUPREME COURT REPORTS                 [2015) 5 S.C.R.


A open to the insurer bf:ing insurer of the bus after making
  payment to claimant to recover from the owner of the
  trailor-truck the amount to the aforesaid extent in the
  execution proceedings. Had there been no
  determination of the inter-se liability for want of evidence
B or other joint tort-feasor had not been impleaded, n: was
  not open to settle such a dispute and to recover the
  amount in execution proceedings, but the remedy would
  be to file another suit or apopriate proceedings in
C accordance with law. [Para 18] [178-B-D]
         l\lational Insurance Co. Ltd. v. Challa Bharathamma
         & Ors. 2004 (8) SCC 517: 2004 (4) Suppl.
          SCR 587; Oriental Insurance Co. Ltd. v. Nanjappan
         & Ors. 2004 (13) sec 224: 2004 (2) SCR 365 -
D
         relied on.

        Karnataka State Road Transport Corporation,
        Bangalore and etc. v. Arun a/iasAravind and etc. etc.
        AIR 2004 Kar. 149; Smt. Sushi/a Bhadoriya & Ors.
E       v. M.P State Road Transport Corpn. &Anr. 2005 (1)
        MPLJ 372 - approved.

        Pa/ghat Coimbatore Transport Co. Ltd. v. Narayanan
        ILR (1939) Mad. 306; National Insurance Co. Ltd.
F       v. PA. Vergis & Ors. 1991(1)ACC226; United India
        Fire & Genl. Ins. Co. Ltd. v. Varghese & Ors. 1989 2
        ACC 483= 1989 ACJ 472; United India Fire &
        General Insurance Co. Ltd. v. U.E. Prasad & Ors. AIR
        1985 Kar. 160; Andhra Marine Exports (P) Ltd. &
G
        Anr. v. P Radhakrishnan & Ors. AIR 1984 Mad. 358;
        Smt. Kundan Bala Vora & Anr. v. State of U.P AIR
        1983 All. 409; Narain Devi & Ors. v. Swaran Singh &
        Ors.19892ACC116(Del.=1989ACJ 1118; Ganesh
H       v. Syed Munned Ahamed &Ors. ILR (1999) Kar. 403;
    KHENYEI v. NEW INDIAASSURANCE CO. LTD.                  161


     Hiraben Bhaga & Ors. v. Gujarat State Road              A
     Transport Corporation 1982ACJ (Supp.) 414 (Guj.)
    - referred to.

     G.N.E.R. v. Hart (2003) EWHC 2450 (QB); Law of
     Torts by Pollock 15th Edn; Performance Cars Ltd.        B
     v. Abraham (1962 (1) QB 33); Baker v. Willoughby
     1970A.C. 467; Mortgage Express Ltd. v. Bowerman
     & Partners 1996 (2) All E.R. 836 etc. - referred to.

     Law of Torts 2nd Edn., 1992 byJusticeG.P. Singh;        c
     Law of Torts by Winfield and Jolowicz 17th Edn.,
     2006; Rogers on Unification of Tort Law: Multiple
     Tortfeasors - referred to.

       2. There is a difference between contributory and o
composite negligence. In the case of contributory
negligence, a person who has himself contributed to the
extent cannot claim compensation for the injuries
sustained by him in the accident to the extent of his own
negligence, whereas in the case of composite E
negligence, a person who has suffered has not
contributed to the accident but the outcome of
combination of negligence of two or more other persons.
[Para 14) (172-F-H]
                                                             F
    T.O. Anthony v. Karvarnan & Ors. 2008 (3) SCC
    748: 2008 (2) SCR 291; Andhra Pradesh State
    Road Transport Corpn. &Anr. v. K Hem/atha & Ors.
    2008 (6) SCC 767: 2008 (8) SCR 1201; Pawan
    Kumar & Anr. v. Harkishan Dass Mohan Lal & Ors.         G
    2014 (3) sec 590          =2014 (4) scR 1;
    Machindranath Kernath Kasar v. D.S. Mylarappa
    & Ors. 2008 (13) sec 198: 2008 (7) scR 83 -
    relied on.
                                                             H
162         SUPREME COURT REPORTS                 [2015] 5 S.C.R.


A                           Case Law Reference

      ILR (1939) Mad. 306            referred to.     Para 8

      1991(1)ACC226                  referred to.     Para 9
B     1989ACJ 472                    referred to.     Para 9

      AIR 1985 Kar. 160              referred to.     Para 9

      AIR 1984 Mad. 358              referred to.     Para 9
c     AIR 1983 All. 409              referred to.     Para 9

      1989 ACJ 1118                  referred to.     Para 9

      AIR 2004 Kar.149               approved.        Para 10
D
      ILR (1999) Kar. 403            referred to.     Para 10

      1982 ACJ (Supp.) 414 (Guj.)    referred to.     Para 11

      2005 ('I) MPLJ 372             approved.        Para 12
E
    2008 (2) SCR 291                 relied on.       Para 14

    2008 (8) SCR 1201                relied on.       Para 15

    2014 (4) SCR 1                   relied on.       Para 16
F
    2008 (7) SCR 83                  relied on.       Para 16

    2004 (4) Suppl. SCR 587          relied on.       Para 16

G 2004 (2) SCR 365                   relied on.      -Para 17

          CIVILAPPELLATE JURISDICTION: Civil Appeal No.
    4244 of 2015

          From the Judgment and Order dated 22.02.2010 of the
H
    High Court of Gauhati at Kohima Bench in MAC Appeal Nos.
     KHENYEI v. NEWINDIAASSURANCECO. LTD.                        163


42(k) of 2007                                                      A

           WITH
                           •

     Civil Appeal Nos. 4245, 4246, 4247, 4248, 4249 and
4250 of 2015
                                                                   B
     Anupam Lal Das, Arunabh Chowdhury, Gainlung
Panmei,Aniruth Sing, Karma Dorjee, fortheAppellant.

       M. K. Dua, for the Respondent.
                                                                   c
       The Judgment of the Court was delivered by

       ARUN MISHRA, J. 1. Leave granted.

        2. In the appeals, the main question which arises for
                                                                0
consideration is, whether it is open to a claimant to recover
entire compensation from one of the joint tort feasors,
particularly when in accident caused by composite negligence
of drivers of trailor-truck and bus has been found to 2/3'd and
1/3rd extent respectively.                                      E

         3. In the instant cases the injuries were sustained by
the claimants when two vehicles- bus and trailor-truck collided
with each other. The New India Assurance Co. Ltd. is admittedly
the insurer of the bus. However, on the basis of additional F
evidence adduced the High Court has come to the conclusion
thatthe New India Assurance Co. Ltd. is not the insurer of the
trailor-truck, hence is not liable to satisfy 2/3rd of the award.

         4. It is a case of composite negligence where injuries G
have been caused to the claimants by combined wrongful act
of joint tort feasors. In a case of accident caused by negligence
of joint tort feasors, all the persons who aid or counsel or direct
or join in committal of a wrongful act, are liable. In such case,
the liability is always joint and several. The extent of negligence H
164        SUPREME COURT REPORTS                    [2015) 5 S.C.R.


A of joint tort feasors in such a case is immaterial for satisfaction
  of the claim of the plaintiff/claimant and need not be determined
  by the court. However, in case all the joint tort feasors are
  before the court, it may determine the extent of their liability for
  the purpose of adjusting inter-se equities between them at
B appropriate stage. The liability of each and every joint tort
  feasor vis a vis to plaintiff/claimant cannot be bifurcated as it
  is joint and several liability. In the case of composite negligence,
  apportionment of compensation between tort feasors for
C making payment to the plaintiff is not permissible as the plaintiff/
  claimant has the right to recover the entire amount from the
  easiest targets/solvent defendant.

          5. In Law of Torts, 2nd Edn., 1992 by Justice G.P. Singh,
  it ha\:> been observed that in composite negligence,
0
  apportionment of compensation between two tort feasors is
  not permissible.

          6. In Law of Torts by Winfield and Jolowicz, 171h Edn.,
  2006, the author has referred to Performance Cars Ltd. v.
E Abraham [1962 (1) QB 33), Bakerv. Willoughby 1970 A.C.
  467, Rogers on Unification of Tort Law: Multiple Tortfeasors;
  GN.E.R. v. Hart [2003] EWHC 2450 (QB), Mortgage Express
  Ltd. v. Bowerman & Partners 1996 (2) All E. R. 836 etc. and
F observed thus :

       "WHERE two or more people by their independent
       breaches of duty to the claimant cause him to suffer
       distinct injuries, no special rules are required, for each
       tortfeasor is liable for the damage which he caused and
G
       only for that damage. Where, however, two or more
       breaches of duty by different persons cause the claimant
       to suffer a single, indivisible injury the position is more
       complicated. The law in such a case is thatthe claimant
H      is entitled to sue all or any of them for the full amount of
   KHENYEI v. NEW INDIAASSURANCE CO. LTD.                           165
               [ARUN MISHRA, J.]

 his loss, and each is said to be jointly and severally liable       A
 for it. If the claimant sues defendantA but not Band C, it
 is open to A to seek "contribution" from B and C in respect
 of their relative responsibility but this is a matter among
 A, B and C and does not affect the claimant. This means
that special rules are necessary to deal with the                    B
 possibilities of successive actions in respect of that loss
 and of claims for contribution or indemnity by one
tortfeasor against the others. It may be greatly to the
claimant's advantage to show that he has suffered the
same, indivisible harm at the hands of a number of
                                                                     c
defendants fof he thereby avoids the risk, inherent in
cases where there are different injuries, of finding that
one defendant is insolvent (or uninsured) and being
 unable to execute judgment against him. Even where all              D
 participants are solvent, a system which enabled the
claimant to sue each one only for a proportionate part of
the damage would require him to launch multiple
proceedings, some of which might involve complex
issues of liability, causation and proof. As the law now             E
stands, the claimant may simply launch proceedings
against the "easiest target". The same picture is not, of
course, so attractive from the point of view of the solvent
defendant, who may end up carrying full responsibility
for a loss in the causing of which he played only a partial,         F
even secondary role. Thus a solicitor may be liable in full
for failing to point out to his client that there is reason to
believe that a valuation on which the client proposes to
lend is suspect, the valuer being insolvent; and an auditor
                                                                    G
will be likely to carry sole responsibility for negligent failure
to discover fraud during a company audit. A sustained
campaign against the rule of joint and several liability
has been mounted in this country by certain professional
bodies, who have argued instead for a regime of                     H
166         SUPREME COURT REPORTS                    [2015] 5 S.C.R.


A       "proportionate liability" whereby, as against the claimant,
        and not merely among defendants as a group, each
        defendant would bear only his share of the liability. While
        it has not been suggested here that such a change should
        be extended to personal injury claims, this has occurred
8       in some American jurisdictions, whether by statute or by
        judicial decision. However, an investigation of the issue
        by the Law Commission on behalf of the Dept of trade
        and Industry in 1996 led to the conclusion that the present
        law was preferable to the various forms of proportionate
c       liability."

             7. Pollock in Law of Torts, 151h Edn. has discussed the
      concept of composite negligence. The relevant portion at page
      361 is extracted below:
D
               "Another kind of question arises where a person
        is injured without any fault of his own, but by the combined
        effects of the negligence of two persons of whom the
        one is not responsible for the other. It has been supposed
E       that A could avail himself, as against Z who has been
        injured without any want of due care on his own part, of
        the so-called contributory negligence of a third person
        B. It is true you were injured by my negligence, but it
F       would not have happened if 8 had not been negligent
        also, therefore, you can not sue me, or at all events not
        apart from 8. Recent authority is decidedly against
        allowing such a defence, and in one particular class of
        cases it has been emphatically disallowed. It must,
G       however, be open to A to answer to Z: You were not
        injured by my negligence at all, but only and wholly by
        B's. It seems to be a question of fact ratherthan of law
        (as, within the usual limits of a jury's discretion, the
        question of proximate cause is in all ordinary cases) what
H
     KHENYEI v. NEW INDIAASSURANCE CO. LTD.                     167
                 [ARUN MISHRA, J.]

  respective degrees of connection, in kind and degree,          A
  between the damage suffered by Zand the independent
  negligent conduct of A and 8 will make it proper to say
  that Z was injured by the negligence of A alone, or of 8
  alone, or of both A and 8,. But if this last conclusion be
  arrived at, it is now quite clear that Z can sue both A and    8
  8.

  At page 362Author has observed as:-

  'The strict analysis of the proximate or immediate cause       c
  of the event: the inquiry who could last have prevented
  the mischief by the exercise of due care, is relevant only
  where the defendant says that the plaintiff suffered by
  his own negligence. Where negligent acts of two or more
  independent persons have between them caused                   D
  damage to a third, the sufferer is not driven to apply any
  such analysis to find out whom he can sue. He is entitled-
  of course, within the limits set by the general rules as to
  remoteness of damage- to sue all or any of the negligent
  persons. It is no concern of his whether there is any duty     E
  of contribution or indemnity as between those persons,
  though in any case he can not recover in the whole more
  than his whole damage."

         8. In Pa/ghat Coimbatore Transport Co. Ltd. v. F
Narayanan, [ILR (1939) Mad. 306], it has been held that where
injury is caused by the wrongful act of two parties, the plaintiff
is not bound to a strict analysis of the proximate or immediate
cause of the event to find out whom he can sue. Subject to the G
rules as to remoteness of damage, the plaintiff is entitled to
sue all or any of the negligent persons and it is no concern of
his whether there is any duty of contribution or indemnity as
between those persons, though in any case he cannot recover
on the whole more than his whole damage. He has a right to H
168        SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A recover the full amount of damages from any of the defendants.

             9. In National Insurance Co. Ltd. v. PA. Vergis & Ors.
    [1991 (1) ACC 226], it has been observed that the case of
    composite negligence is one when accident occurs and
B   resulting injuries and damages flow without any negligence on
    the pa~ of the claimant but as a result of the negligence on the
    part of two or more persons. In such a case, the Tribunal should
    pass a composite decree against owners of both vehicles. In
    United India Fire & Genl. Ins. Co. Ltd. v. Varghese & Ors.
C   [19892ACC 483=1989ACJ 472], it has been observed that
    in a case of composite negligence, the injured has option to
    proceed against all or any of the joint tortfeasors. Therefore,
    the insurer cannot take a defence that action is not sustainable
    as the other joint tort feasors have not been made parties.
D   Similar is the view taken in United India Fire & General
    Insurance Co. Ltd. v. U.E. Prasad & Ors. [AIR 1985 Kar. 160].
    In Andhra Marine Exports (P) Ltd. &Anr. v. P Radhakrishnan
    & Ors. [AIR 1984 Mad. 358], it has been held that every wrong
E   doer is liable for whole damages in the case of composite
    negligence if it is otherwise made out.

          Similar is the view taken in Smt. Kundan Bala Vora &
  Anr. v. State of U.P [AIR 1983 All. 409], where a collision
F between bus and car took place. Negligence of both the drivers
  was found. It was held that they would be jointly and severally
  liable to pay the whole damages. In Narain Devi & Ors. v.
  Swaran Singh & Ors. [1989 2 ACC 116 (Del.)= 1989 ACJ
  1118] there was a case of composite negligence by drivers of
G two trucks involved in an accident which hit the tempo from
  two sides. The proportion in which the two vehicles
  misconducted or offended was not decided. It was held by the
  High Court that the Tribunal was right in holding the liability of
  tort feasors as joint and several.
H
     KHENYEI v. NEW INDIAASSURANCE CO. LTD.                             169
                 [ARUN MISHRA, :.!.]

        10. A Full Bench of the High Court of Karnataka at A
Bangalore in Karnataka State Road Transport Corporation,
Bangalore and etc. v. Arun aliasAravind and etc. etc. [AIR 2004
Kar. 149] has affirmed the decision of another Full Bench of
the same High Court in Ganesh v. Syed Munned Ahamed &
Ors. [ILR (1999) Kar. 403]. A.Division Bench referred the B
decision in Ganesh's case (supra) on following two questions
to the larger Bench :

  "1. If the proceedings are finally determined with an award
  made by the Tribunal and disposed of in some cases by                  c
  the appeal against the same by the High Court, does the
  Tribunal not become functus officio for making any further
  proceedings like impleading the tort feasor or initiating
  action against him legally impermissible?
                                                                         D
   2. What is the remedy of a tort feasor who has satisfied
   the award, but who does not know the particulars of the
   vehicle which was responsible for the accident?"

          11. A Full Bench in KSRTC v. Arun@Aravind (supra)              E
while answering aforesaid questions has observed that it was
a case of composite negligence and the liability of tort feasors
was joint and several. Hence, even if there is non-impleadment
of one of tort feasors, the claimant W!lS entitled to full
compensation quantified by the Tribunal. The Full Bench                  F
referred to the decision of a Division Bench of the Gujarat High
Court in Hiraben Bhaga & Ors. v. Gujarat State Road
Transport Corporation[1982ACJ (Supp.) 414 (Guj.)] in which
it has been laid down that it is entirely the choice of the claimant     G
whether to imp lead both the jointtort feasors or either of them.
On failure of the claimant to imp lead one of the joint tort feasors,
contributory liability cannot be fastened upon the claimant to
the extent of the negligence of non-imp leaded joint tort feasors.
It is for the joint tort feasors made liable to pay compensation         H
170        SUPREME COURT REPORTS                     [2015) 5 S.C.R.


A to take proceedings to settle the equities as against other joint
  tort feasors who had not been impleaded. It is open to the
  imp leaded joint tort feasor to sue the other wrong doer after
  the decree or award is given to realize to the extent of others'
  liability. It has been laid down that the law in Ganesh's case
B (supra) has been rightly laid down and it is not necessary to
  implead all joint tort feasors and due to failure of impleadment
  of all joint tort feasors, compensation cannot be reduced to
  the extent of negligence of non-impleaded tort feasors. Non-
e impleadment of one of the joint tort feasors is not a defence to
  reduce the compensation payable to the claimant. In our
  opinion, the law appears to have been correctly stated in
  KSRTC v. Arun @Aravind (supra).

          12. A Full Bench of Madhya Pradesh High Court in Smt.
D Sushi/a Bhadoriya & Ors. v. M.P. State Road Transport Corpn.
   &Anr. [2005 (1) MPLJ 372] has al.so laid down that in case of
   composite negligence, the liability is joint and several and it is
  open to implead the driver, owner and the insurer one of the
E vehicles to recover the whole amount from one of the joint tort
  feasors. As to apportionment also, it has been observed that
  both the vehicles will be jointly and severally liable to pay the
  compensation. Once the negligence and compensation is
  determined, it is not permissible to apportion the compensation
F between the two as it is difficult to determine the apportionment
  in the absence of the drivers of both the vehicles appearing in
  the witness box. Therefore, there cannot be apportionment of
  the claim between the joint tort feasors. The relevant portion
  of decision of Full Bench is extracted hereunder:
G
      "When injury is caused as a result of negligence of two
      joint tort-feasors, claimant is not required to lay his finger
      on the exact person regarding his proportion of liability.
      In the absence of any evidence enabling the Court to
H
  KHENYEI v. NEW INDIAASSURANCE CO. LTD.                        171
              [ARUN MISHRA, J.]

distinguish the act of each joint tort-feasor, liability can     A
be fastened on both the tort-feasors jointly and in case
only one of the joint tort-feasors is impleaded as party,
then entire liability can be fastened upon one of the joint
tort-feasors. If both the joint tort-feasors are before the
Court and there is sufficient evidence regarding the act         B
of each tort-feasors and it is possible for the Court to
apportion the claim considering the exact nature of
negligence by both the joint tort-feasors, it may apportion
the claim. However, it is not necessary to apportion the
claim when it is not possible to determine the ratio of
                                                                 c
negligence of joint tort-feasors. In such cases, joint tort-
feasors will be jointly and severally liable to pay the
compensation.
                                                                 D
On the same principle, in the case of joint tort- feasors
where the liability is joint and several, it is the choice of
the claimant to claim damages from the owner and driver
and insurer of both the vehicles or any one of them. If
claim is made against one of them, entire amount of              E
compensation on account of injury or death can be
imposed against the owner, driver and insurer of that
vehicle as their liability is joint and several and the
claimant can recover the amount from any one of them.
There can not be apportionment of claim of each tort-            F
feasors in the absence of proper and cogent evidence
on record and it is not necessary to apportion the claim.

To sum up, we hold as under:-
                                                                 G
(i) Owner, driver and insurer of one of the vehicles can
be sued and it is not necessary to sue owner, driver and
insurer of both the vehicles. Claimant may implead the
owner, driver and insurer of both the vehicles or anyone
of them.                                                         H
172        SUPREME COURT REPORTS                       [2015] 5 S.C.R.


A      (ii) There can not be apportionment of the liability of joint
       tort-feasors. In case both the joint tort-feasors are
       imp leaded as party and if there is sufficient material on
       record, then the question of apportionment can be
       considered by the Claims Tribunal. However, on general
B      principles of Jaw, there is no necessity to apportion the
       inter se liability of joint tort-feasors.

       Reference is answered accordingly. Appeal be placed
       before appropriate Bench for hearing."
c
          13. In our opinion, the law laid down by the Madhya
  Pradesh High Court in Smt. Sushi/a Bhadoriya (supra) is also
  in tune with the decisions of the High Court of Karnataka in
  Ganesh (supra) and Arun@Aravind (supra). However, at the
D same time, suffice it to clarify that even if all the joint tort feasors
  am impleaded and both the drivers have entered the witness
  box and the tribunal or the court is able to determine the extent
  of negligence of each of the driver that is for the purpose of
E inter se liability between the joint tort feasors but their liability
  would remain joint and several so as to satisfy the plaintiff/
  claimant.

         14. There is a difference between contributory and
  composite negligence. In the case of contributory negligence,
F a person who has himself contributed to the extent cannot claim
  compensation for the injuries sustained by him in the accident
  to the extent of his own negligence; whereas in the case of
  composite negligence, a person who has suffered has not
G contributed to the accident but the outcome of combination of
  negligence of two or more other persons. This Court in T. 0.
  Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held
  that in case of contributory negligence, injured need not
  establish the extent of responsibility of each wrong doer
H separately, nor is it necessary for the court to determine the
     KHENYEI v. NEW INDIAASSURANCE CO. LTD.                       173
                 [ARUN MISHRA, J.]

extent of liability of each wrong doer separately. It is only in the A
case of contributory negligence that the injured himself has
contributed by his negligence in the accident. Extent of his
negligence is required to be determined as damages
recoverable by, him in respect of the injuries have to be reduced
in proportion to.his contributory negligence. The relevant portion B
is extracted hereunder :

  "6. 'Composite negligence' refers to the negligence on
  the part of two or more persons. Where a person is injured
  as a result of negligence on the part of two or more wrong        c
  doers, it is said that the person was injured on account
  of the composite negligence of those wrong-doers. In
  such a case, each wrong doer, is jointly and severally
  liable to the injured for payment of the entire damages
                                                                    D
  and the injured person has the choice of proceeding
  against all or any of them. In such a case, the injured
  need not establish the extent of responsibility of each
  wrong-doer separately, nor is it necessary for the court
  to determine the extent of liability of each wrong-doer           E
  separately. On the other hand where a person suffers
  injury, partly due to the negligence on the part of another
  person or persons, and partly as a result of his own
  negligence, then the negligence of the part of the injured
  which contributed to the accident is referred to as his           F
  contributory negligence. Where the injured is guilty of
  some negligence, his claim for damages is not defeated
  merely by reason of the negligence on his part but the
  damages recoverable by him in respect of the injuries
  stands reduced in proportion to his contributory                  G
  negligence.

  7. Therefore, when two vehicles are involved in an
  accident, and one of the drivers claims compensation
                                                                    H
174       SUPREME COURT REPORTS                      (2015) 5 S.C.R.


A     from the other driver alleging negligence, and the other
      driver denies negligence or claims that the injured
      claimant himself was negligent, then it becomes
      necessary to consider whether the injured claimant was
      negligent and if so, whether he was solely or partly
B     responsible for the accident and the extent of his
      responsibility, that is his contributory negligence.
      Therefore where the injured is himself partly liable, the
      principle of 'composite negligence' will not apply nor can
      there be an automatic inference that the negligence was
c
      50:50 as has been assumed in this case. The Tribunal
      ought to have examined the extent of contributory
      negligence of the appellant and thereby avoided
      confusion between composite negligence and
D     contributory negligence. The High Court has failed to
      correct the said error."

         15. The decision in T. 0. Anthony v. Karvarnan & Ors.
  (supra) has been relied upon in Andhra Pradesh State Road
E Transport Corpn. &Anr. v. K Hemlatha & Ors. (2008 (6) SCC
  767).

           16. In Pawan Kumar & Anr. v. Harkishan Dass
      Mohan Lal & Ors. (2014 (3) SCC 590), the decisions in
F     T.O. Anthony (supra) and Hemlatha (supra) have been
      affirmed, and this Court has laid down that where plaintiff/
      claimant himself is found to be negligent jointly and
      severally, liability cannot arise and the plaintiff's claim to
      the extent of his own negligence, as may be quantified,
G     will have to be severed. He is entitled to damages not
      attributable to his own negligence. The law/distinction with
      respect to contributory as well as composite negligence
      has been considered by this Court in Machindranath
      Kernath Kasarv. D.S. Mylarappa & Ors. (2008 (13) SCC
H
    KHENYEI v. NEW INDIAASSURANCE CO. LTD.                           175
                [ARUN MISHRA, J.]

  198] and also as to joint tort feasors. This Court has              A
  referred to Charlesworth & Percy on negligence as to
  cause of action in regard to joint tort feasors thus:

  "42. Joint tortfeasors, as per 1Qth Edn. of Charlesworth &
  Percy on Negligence, have been described as under:                  B

       Wrongdoers are deemed to be joint tortfeasors,
  within the meaning of the rule, where the cause of action
  against each of them is the same, namely, that the same
  evidence would support an action against them,                      c
  individually..... Accordingly, they will be jointly liable for a
  tort which they both commit or for which they are
  responsible because the law imputes the commission
  of the same wrongful act to two or more persons at the
  same time. This occurs in cases of (a) agency; (b)                  D
  vicarious liability; and (c) where a tort is committed in the
  course of a joint act, whilst pursuing a common purpose
  agreed between them."

   The question also arises as to the remedies available to E
one of the joint tort feasors from whom compensation has been
recovered. When the other joint tort feasor has not been
impleaded, obviously question of negligence of non-
impleaded driver could not be decided apportionment of
composite negligence cannot be made in the absence of F
impleadment of joint tort feasor. Thus, it would be open to the
impleaded joint tort feasors after making payment of
compensation, so as to sue the other joint tort feasor and to
recover from him the contribution to the extent of his G
negligence. However, in case when both the tort feasors are
before the courUtribunal, if evidence is sufficient, it may
determine the extent of their negligence so that one joint tort
feasor can recover the amount so determined from the other
joint tort feasor in the execution proceedings, whereas the H
176       SUPREME COURT REPORTS                      [2015] 5 S.C.R.


A claimant has right to recover the compensation from both or
  any one of them. This Court in National Insurance Co. Ltd. v.
  Challa Bharathamma & Ors. [2004 (8) SCC 517] with respect
  to mode of recovery has laid down thus :

B      "13. The residual question is what would be the
       appropriate direction. Considering the beneficial object
       of the Act, it would be proper for the insurer to satisfy the
       award, though in law it has no liability. In some cases the
       insurer has been given the option and liberty to recover
c      the amount from the insured. For the purpose of
       recovering the amount paid from the owner, the insurer
       shall not be required to file a suit. It may initiate a
       proceeding before the concerned Executive Court as if
      the dispute between the insurer and the owner was the
D
      subject matter of determination before the Tribunal and
      the issue is decided against the owner and in favour of
      the insurer. Before release of the amount to the claimants,
      owner of the offending vehicle shall furnish security for
E     the entire amount which the insurer will pay to the
      claimants. The offending vehicle shall be attached, as a
      part of the security. If necessity arises the Executive Court
      shall take assistance of the concerned Regional
      Transport Authority. The Executing Court shall pass
F     appropriate orders in accordance with law as to the
      manner in which the owner of the vehicle shall make
      payment to the insurer. In case there is any default it shall
      be open to the Executing Court to direct realization by
      disposal of the securities to be furnished or from any other
G     property or properties of the owner of the vehicle i.e. the
      insured. In the instant case considering the quantum
      involved we leave it to the discretion of the insurer to
      decide whether it would take steps for recovery of the
      amount from the insured.".
H
                     .
      KHENYEI v. NEW INDIAASSURANCE CO. LTD.                                 177
                  [ARUN MISHRA, J.]

       17. In Oriental Insurance Co. Ltd. v. Nanjappan & Ors.                 A
[2004 (13) SCC 224] also, this Court has laid down thus:
"8. Therefore, while setting aside the judgment of the High court
we direct in terms of what has been stated in Ba/jit Kaur's case
[2004 (2) sec 1] that the insurer shall pay the quantum of
compensation fixed by the Tribunal, about which there was no                  B
dispute raised, to the respondents-claimants within three months
from today. The for the purpose of recovering the same from the
insured, the insurer shall not be required to file a suit. It may initiate
a proceeding before the concerned Executing Court as if the                   C
dispute between the insurer and the owner was the subject matter
of determination before the Tribunal and the issue is decided
against the owner and in favour of the insurer. Before release of
the amount to the insured, owner of the vehicle shall be issued a
notice and he shall be required to furnish security for the entire            o
amount which the insurer will pay to the claimants. The offending
vehicle shall be attached, as a part of the security. If necessity
arises the Executing Court shall take assistance of the concerned
Regional Transport authority. The Executing Court shall pass
appropriate orders in accordance with law as to the manner in                 E
which the insured, owner of the vehicle shall make payment to
the insurer. In case there is any. default it shall be open to the
Executing Court to direct realization by disposal of the securities
to be furnished or from any other property or properties of the
owner of the vehicle, the insured. The appeal is disposed of in the           F
aforesaid terms, with no order as to costs."

       18. This Court in Challa Bharathamma & Nanjappan
(supra) has dealt with the breach of policy conditions by the
owner when the insurer was asked to pay the compensation G
fixed by the tribunal and the right to recover the same was
given to the insurer in the executing court concerned if the
dispute between the insurer and the owner was the subject-
matter of determination for the tribunal and the issue has been H
178        SUPREME COURT REPORTS                       [2015] 5 S.C.R.


A decided in favour of the insured. The same analogy can be
   applied to the instant cases as the liability of the joint tort feasor
   is joint and several. In the instant case, there is determination
  of inter se liability of composite negligence to the extent of
  negligence of 2/3rd and 1/3rd of respective drivers. Thus, the
B vehicle-trailor-truck which was not insured with the insurer,
  was negligent to the extent of 2/3rd. It would be open to the
  insurer being insurer of the bus after making payment to
  claimant to recover from the owner of the trailor-truck the
C amount to the aforesaid extent in the execution proceedings.
  Had there been no determination of the inter se liability for
  want of evidence or other joint tort feasor had not been
  impleaded, it was not open to settle such a dispute and to
  recover the amount in execution proceedings but the remedy
o would be to file another suit or appropriate proceedings in
  accordance with law.

           What emerges from the aforesaid discussion is as
    follows:

E (i) In the case of composite negligence, plaintiff/claimant is
  entitled to sue both or any one of the joint tort feasors and to
  recover the entire compensation as liability of joint tort feasors
  is joint and several.

F (ii) In the case of composite negligence, apportionment of
  compensation between two tort feasors vis a vis the plaintiff/
  claimant is not permissible. He can recover at his option whole
  damages from any of them.

G (iii) In case all the joint tort feasors have been imp leaded and
  evidence is sufficient, it is open to the court/tribunal to determine
  inter se extent of composite negligence of the drivers. However,
  determination of the extent of negligence between the joint tort
H feasors is only for the purpose of their inter se liability so that
      KHENYEI v. NEW INDIAASSURANCE CO. LTD.                        179
                  [ARUN MISHRA, J.]

one may recover the sum from the other after making whole of A
payment to the plaintiff/claimant to the extent it has satisfied
the liability of the other. In case both of them have been
impleaded and the apportionment/ extent of their negligence
has been determined by the court/tribunal, in main case one
joint tort feasor can recover the amount from the other in the B
execution proceedings.

(iv) It would not be appropriate for the court/tribunal to determine
the extent of composite negligence of the drivers of two vehicles
in the absence of impleadment of other joint tort feasors. In C
such a case, impleaded joint tort feasor should be left, in case
he so desires, to sue the other joint tort feasor in independent
proceedings after passing of the decree or award.

       19. Resultantly, the appeals are allowed. The judgment D
and order passed by the High Court is hereby set aside. Parties
to bear the costs as incurred.

Kalpana K. Tripathy                              Appeals allowed.
                                                                     E