PAWAN KUMAR & ANR. ETC.versusM/S HARKISHAN DASS MOHAN LAL & ORS

                      [2014] 4 S.C.R. 1


               PAWAN KUMAR & ANR. ETC.                          A
                              v.
      MIS HARKISHAN DASS MOHAN LAL & ORS.
            (Civil Appeal No. 5906 of 2008)
                     JANUARY 29, 2014
                                                                 B
       [P.SATHASIVAM, CJI.) RANJAN GOGOi AND
               SHIVA KIRTI SINGH, JJ.]

    MOTOR VEHICLES ACT, 1988:
                                                                c
     Fatal accident - Collusion between a truck and a jeep --
Claim petition in respect of victims traveling in jeep - High
Court apportioning the liability of driver/owner of truck at 70%
and that of driver/owner of jeep at 30% -- Held: Since the
victims were third parties, High Court was not correct in
                                                                 0
apportioning the liability for the accident between drivers!
owners of the two vehicles -- Drivers/owners of both the
vehicles are jointly and severally liable to pay compensation
and it is open to claimants to enforce the award against both
or any of them -- Order of High Court modified accordingly.
                                                                E
    Motor accident - Compensation - Principles of composite
and contributory negligence - Explained.

     A jeep owned by respondent No.1 and driven by
respondent No.2 met with an accident with a truck F
resulting into death of two passengers of the jeep and
serious injuries to third one. As the truck involved in the
accident had fled from the spot, the driver/owner and
insurer of the said truck could not be impleaded in any
of the claim petitions filed by the claimants. The High G
Court held that both the truck as well as the jeep were
responsible for the accident and apportioned the liability
of the driver/owner of the truck at 70% and that of the
driver/owner of the jeep at 30%.
                              1                                 H
    2        SUPREME COURT REPORTS              [2014] 4 S.C.R.


A        In the instant appeal filed by the claimants, it was
    contended for the appellants that since the victims were
    third parties traveling in the jeep, the correct principle to
    determine the liability was that of comp'Osite negligence,
    and the High Court committed an error in invoking the
B   principle of contributory negligence and in apportioning
    the liability between the drivers/owners of the two
    vehicles.

        Allowing the appeal, the Court

C      HELD: 1.1 The distinction between the composite
  and the contributory negligence is clear. Where the
  plaintiff/claimant himself is found to be a party to the
  negligence the question of joint and several liability
  cannot arise and the plaintiff's claim to the extent of his
D own negligence, as may be quantified, will have to be
  severed. In such a situation the plaintiff can only be held
  entitled to such part of damages/compensation that is not
  attributable to his own negligence. "Composite
  negligence" refers to the negligence on the part of two
E or more wrong doers. In such a case, each wrongdoer
  is jointly and severally liable to the injured for payment
  of the entire damages and the injured person has the
  choice of proceeding against all or any of them. (para 6-
  7] (6-C; 7-C-G]
F       T. 0. Anthony Vs. Karvaman & Ors. 2008 (2) SCR 291     =
    (2008) 3 sec 748 - relied on.
        Winfield & Jolowicz on Tort (Chapter 21) (15th Edition,
    1998) • referred to.
G        Andhra Pradesh State Road Transport Corporation &
    Anr. Vs. K. Hemlatha & Ors. 2008 (8) SCR 1201 = (2008) 6
    sec 767 - cited.
      1.2 In the instant case, neither the driver/owner nor
H the insurer has filed any appeal or cross objection
  PAWAN KUMAR & ANR. ETC. v. MIS HARKISHAN                 3
          DASS MOHAN LAL & ORS.
against the findings of the High Court that both the           A
vehicles were responsible for the accident. The High
Court was not correct in apportioning the liability for the
accident between drivers/owners of the two vehicles.
[para 8] [8-F-H]
                                                               B
    1.3 This Court, therefore, holds that the drivers/owners
of both the vehicles are jointly and severally liable to pay
compensation and it is open to the claimants to enforce
the award against both or any of them. The order of the
High Court is modified accordingly. [para 9] [9-A-B]
                                                               c
                     Case Law Reference:
    2008 (2) SCR 291         relied on            para 4
    2008 (8) SCR 1201        cited                para 4
                                                               D
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5906 of 2008.

    From the Judgment and Order dated 05,07.2006 of the
High Court of Punjab and Haryana at Chandigarh in F.A.O. No.
407 of 1995.                                                   E

    Rishi Malhotra, Prem Malhotra for the Appellants.

    Dr. Kailash Chand, B.K. Satija for the Respondents.

    The Judgment of the Court was delivered by                 F

     RANJAN GOGOi, J. 1. The appellants were the claimants
in the proceedings instituted for award of compensation under
the Motor Vehicles Act, 1988 (hereinafter referred to as "the
Act"). They are aggrieved by the decision of the High Court of G
Punjab & Haryana at Chandigarh in F.A.O. Nos. 695, 407 and
408of1995 dated 05.07.2006 by which, though their claim for
compensation has been upheld, the liability to pay the same
has been apportioned betwl'!en the drivers/owners of the two
vehicles involved in the motor accident. The appellants contend H
    4        SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A   that as they were third parties to the claim, the High Court ought
    to have made the drivers/owners of the vehicles jointly and
    severally liable to pay compensation in view of their composite
    negligence instead of apportioning their liability by invoking the
    principle of contributory negligence.
B
        2. The brief facts that will be required to be noticed may
    now be set out:

          Deceased Yogesh (12 years) and Parshotam D. Gupta
    and injured Salochna were travelling in Jeep No.PB-03-6848
C   from Sirsa, Haryana to Vaishno Devi on 19.06.1993. The jeep
    which is owned by the respondent No.1 and driven by the
    respondent No.2 met with an accident with a truck coming from
    the opposite direction as a result of which Parshotam D. Gupta
    and Yogesh died on the spot whereas Salochna received
D   serious injuries. Claim petitions were filed by the parents of
    Yogesh and the legal heirs of deceased Parshotam Dass
    including Salochna who is his wife. The injured Salochna also
    filed a separate claim petition in respect of the injuries
    sustained by her in the same accident. As the truck involved in
E   the accident had fled from the spot, the driver/owner and insurer
    of the said truck could not be impleaded in any of the claim
    petitions filed by the claimants.

          The Motor Accident Claims Tribunal (for short "the Tribunal)
    by its award dated 07 .11.1994 held that the truck alone was
F   responsible for the accident and in the absence of the driver/
    owner or the insurer of the said vehicle, no compensation can
    be awarded to any of the claimants. Aggrieved, the matter was
    carried in appeal. The High Court by its order dated
    05.07.2006 held that both the truck as well as the jeep, in which
G   the deceased and the injured were travelling, were responsible
    for the accident. The High Court further held that the liability of
    the driver/owner of the truck should be estimated at 70% and
    that of the driver/owner of the jeep at 30%. Accordingly, the
    High Court held that in respect of the death of Yogesh,
H
     PAWAN KUMAR & ANR. ETC. v. MIS HARKISHAN                    5
     DASS MOHAN LAL & ORS. [RANJAN GOGOi, J.]

compensation of Rs.2,00,000/- would be the just and fair              A
compensation payable to the legal heirs. 30% thereof i.e.
Rs.60,000/- was held to be payable by the driver/owner/insurer
of the jeep. In respect of deceased Parshotam, the High Court
held that the amount of compensation payable would be
Rs.5,76,000/- and accordingly made the respondent Nos.1, 2            B
and 3 (insurer) liable to pay 30% of the said compensation
which comes to Rs.1,72,800/-. Insofar as the injuries sustained
by Salochna is concerned, the High Court computed the amount
of compensation payable at Rs.2,00,000/- and made the
respondent Nos. 1, 2 and 3 liable for compensation to the extent      C
of 30% of the said amount i.e. Rs.60,000/-. Aggrieved by the
said order, the appellants/claimants have filed the present
appeal.

      3. We have heard the learned counsels for the parties.
                                                                      D
     4. Learned counsel for the appellants has contended that
though the High Court has rightly held both the vehicles to be
responsible for the accident it has committed a glaring error in
invoking the principle of contributory negligence in the present
case and in apportioning the liability between the drivers/owners     E
of the two vehicles. Relying on the decision of this Court in T. 0.
Anthony Vs. Karvarnan & Ors. 1 which has been followed in a
subsequent decision in Andhra Pradesh State Road Transport
Corporation & Anr. Vs. K. Hemlatha & Ors. 2, learned counsel
has urged that in a case where the claimant is a third party (other   F
than the driver/owner of the vehicles involved in the accident)
the correct principle for determination of the liability is that of
composite negligence which would make the drivers/owners of
the two vehicles jointly and severally liable. The principle of
contributory negligence so as to apportion the liability between      G
the drivers/owners would be relevant only if the claim for
compensation is by one of the drivers himself or by his legal
heirs, as the case may be. It is, therefore, contended that the
1.   (2008) 3 sec 748.
2. c2oos) s sec 1s1.                                                  H
    6        SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A   apportionment made by the High Court is against the settled
    principles of law laid down by this Court.

         5. Learned counsel appearing for the responct.ent No.1
    has argued that even if the view taken by the High Court that
    both the vehicles were responsible for the accident is to be
8
    accepted, the liability of the joint tortfeasors has to be
    apportioned which has been so done by the High Court. It is
    also submitted that in the absence of any specific material the
    apportionment of compensation, as determined by the High
    Court, ought not to be disturbed.
c
        6. The distinction between the principles of composite and
    contributory negligence has been dealt with in Winfield &
    Jolowicz on Tort (Chapter 21) P5th Edition, 1998). It would be
    appropriate to notice the following passage from the said
D   work:-

        "WHERE two or more people by their independent
        breaches of duty to the plaintiff cause· him to suffer distinct
        injuries, no special rules are required. for each tortfeasor
        is liable for the damage which he caused and only for that
E
        damage. Where, however, two or more breaches of duty
        by different persons cause the plaintiff to suffer a single
        injury the position is more complicated. The law in such a
        case is that the plaintiff is entitled to sue all or any of them
        for the full amount of his loss, and each is said to be jointly
F       and severally liable for it. This means that special rules are
        necessary to deal with the possibilities of successive
        actions in respect of that loss and of claims for contribution
        or indemnity by one tortfeasor against the others. It is
        greatly to the plaintiffs advantage to show that that he has
G       suffered the same, indivisible harm at the hands of a
        number of defendants for 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. The same
H       picture is not, of course, so attractive from th~ point of view
  PAWAN KUMAR & ANR. ETC. v. M/S HARKISHAN                        7
  DASS MOHAN LAL & ORS. [RANJAN GOGOi, J.]
     of the solvent defendant, who may end up carrying full            A
     responsibility for a loss in the causing of which he played
     only a partial, even secondary role.



     The question of whether there is one injury can be a difficult    B
     one. The simplest case is that of two virtually simultaneous
     acts of negligence, as where two drivers behave
     negligently and collide, injuring a passenger in one of the
     cars or a pedestrian, but there is no requirement that the
     acts be simultaneous .................. "·                        C

     7. Where the plaintiff/claimant himself is found to be a party
to the negligence the question of joint and several liability cannot
arise and the plaintiffs claim to the extent of his own negligence,
as may be quantified, will have to be severed. In such a               0
situation the plaintiff can only be held entitled to such part of
damages/compensation that is not attributable to his own
negligence. The above principle has been explained in T. 0.
Anthony (supra) followed in K. Hemlatha & Ors. (supra). Paras
6 and '7 of T. 0. Anthony (supra) which are relevant may be
                                                                       E
extracted hereinbelow:

    "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
    wrongdoers, it is said that the person was injured on              F
    account of the composite negligence of those wrongdoers.
    In such a case, each wrongdoer is jointly and severally
    liable to the injured for payment of the entire damages and
    the injured person has the choice of proceeding against
    all or any of them. In such a case, the injured need not           G
    establish the extent of responsibility of each wrongdoer
    separately, nor is it necessary for the court to determine
    the extent of liability of each wrongdoer separately. On the
    other hand where a person suffers injury, partly due to the
    negligence on the part of another person or persons, and           H
    8       SUPREME COURT REPORTS                 [2014] 4 S.C.R.


A       partly as a result of his own negligence, then the negligence
        on the part of the injured which contributed to the accident
        is referred to as his contributory negligence. Where the
        injured is guilty of some negligence, his claim for
        damages is not defeated merely by reason of the
B       negligence on his part but the damages recoverable by
        him in respect of the injuries stand reduced in proportion
        to his contributory negligence.

        7. Therefore, when two vehicles are involved in. an
        accident, and one of the drivers claims compensation from
c       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 responsible for the
D       accident and the extent of his responsibility, that is, his
        contributory negligence. Therefore where the injured is
        himself partly liable, the principle of "composite
        neg,ligence" will not apply nor can there be an automatic
        inference that the negligence was 50:50 as has been
E       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 contributory negligence. The High Court has failed to
        correct the said error."
F
        8. In the present case, neither the driver/owner nor the
  insurer has filed any appeal or cross objection against the
  findings of the High Court that both the vehicles were
  responsible for the accident. In the absence of any challenge
  to the aforesaid part of the order of the High Court, we ought
G to proceed in the matter by accepting the said finding of the
  High Court. From the discussions that have preceded, it is
  clear that the High Court was not correct in apportioning the
  liability for the accident between drivers/owners of the two
  vehicles.
H
  PAWAN KUMAR & ANR. ETC. v. M/S HARKISHAN                      9
  DASS MOHAN LAL & ORS. [RANJAN GOGOi, J.]

      9. We, accordingly, hold that the drivers/owners of both the   A
vehicles are jointly and severally liable to pay compensation and
it is open to the claimants to enforce the award against both
or any of t11em. The order of the High Court dated 05.07.2006
is modified to the extent indicated above and the appeal is
allowed.                                                             B

R.P.                                            Appeal allowed.