IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH F.A.O. No. 619 of 1994 Date of decision: May 06, 2010 Ramesh Kumar .. Appellant Vs. Jasmer Singh and others .. Respondents F.A.O. No.620 of 1994 Bishamber .. Appellant Vs. Jasmer Singh and others .. Respondents. Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. R.S. Longia, Advocate for the appellant. Mr. R.K. Bashamboo, Advocate for the Insurance Company. A.N. Jindal, J This judgment of mine shall dispose of two connected appeal Nos.619-620 of 1994, having arisen out of the award dated 2.11.1993 passed by the Motor Accident Claims Tribunal, Kurukshetra (herein referred as 'the Tribunal'), whereby the claim petitions filed by Bishamber and Ramesh Kumar for compensation on account of the injuries suffered by them, were accepted. However, the Tribunal while deciding issue No.1 observed that the accident in question took place due to the contributory negligence of the driver of tractor bearing registration No.HR 07 2710 i.e. respondent No.1 and driver of the other truck to the extent of 50% each, therefore, the claimants were awarded compensation to the extent of ½ out of the total compensation awarded because the owner/insurer of the other offending tractor were not made party to the petition. However, while apportioning Bishamber was awarded Rs.3000/- and claimed Ramesh Kumar was awarded to the tune of Rs.55000/- as compensation along with interest @ 12% per annum from the date of filing of the claim petition till F.A.O. No. 619 of 1994 & F.A.O. No. 620 of 1994 -2- realization. The brief resume of facts is that on 17.12.1991, the said two claim petitioners along with Surja and respondent No.1 Jasmer Singh were going to village Beed Mathana after loading cow-dung fertilizer from the diary opposite Neelam Theater, Kurukshetra. The respondent No.1 while driving the tractor No.HR-07-2710 rashly and negligently took it on the wrong side of the road and struck against tractor trolley coming from the opposite side i.e. from Pipli side, driven by its driver rashly and negligently. Consequently, both the tractor trolley collided, as a result of the accident, both the claimants i.e. occupants in the tractor trolley suffered injuries. Ultimately, hand of Ramesh Kumar was amputated. The accident took place due to the rashness and negligence of the respondent No.1 but the police in collusion with him, twisted the facts. Both the claim petitions were contested by the respondents. Ultimately, the Tribunal while holding the composite negligence of both the drivers ordered that the claimants would be entitled to half of the compensation amount from the respondents. The Tribunal while deciding the claim petition used the word “contributory negligence”. Now the questions to be determined in the instant case are as under :- 1. Whether in the case of composite negligence there could be apportionment of the negligence of the joint tort feasors? 2. Whether the owner, driver and insurer of both the vehicles are necessary party in the claim petition. In order to answer the second question, I would have to lay my hands to explain “contributory” and “composite” negligence and what is meant by “joint tort-feasors” and secondly what are the necessary parties. The contributory negligence is what has been suffered by the claimant partly for his fault and party on the part of the respondent where the claimant suffered at the hands of joint tort-feasors within this composite negligence. Pollock in the Law of Torts, Fifteenth Edition has described the composite negligence at page 361 in the following words :- F.A.O. No. 619 of 1994 & F.A.O. No. 620 of 1994 -3- “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 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 would not have happened if B had not been negligent also, therefore, you cannot sue me, or at all events not apart from B. Recent authority is decidedly against allowing such a defence, and in one particular class of case it has been emphatically disallowed. It must, 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 rather than of law (as within the usual limits of a jury's discretion, the question of proximate cause is in all ordinary cases) what respective degrees of connection, in kind and degree, between the damage suffered by Z and the independent negligent conduct of A and B will make it proper to say that Z was injured by the negligence of A alone, or of B alone, or of both A and B. But if this last conclusion be arrived at, it is now quite clear that Z can sue both A and B. At page 362 Pollock again observed as under :- “The strict analysis of the proximate or immediate cause 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 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 F.A.O. No. 619 of 1994 & F.A.O. No. 620 of 1994 -4- any of the negligent persons. 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 in the whole more than his whole damage.” Thus, in simple words, when a person suffers injuries, on colliding of two vehicles, then he is not to find out negligence of one or other and determination of the negligence is a matter between two tort- feasors inter-se who became the cause of death to the third. If on negligence of the two one person suffers, then it could be treated as suffering due to contributory negligence, but, if the third party suffers due to the negligence of the two then that could be termed as composite negligence and defaulters could be said to be joint tort feasors. The question whether both the tort feasors are necessary parties arose in case Gujrat State Road Transport Corporation vs. Union of India, AIR 1988 Gujarat 13 wherein it was observed that in the cases of composite negligence of the drivers of the motor vehicles to some outside agency, the Claims Tribunal can entertain claim against joint tort-feasors also besides claim against motor driver, owner of motor vehicle and its insurer. It was also held that when there are joint tort-feasors, then claim petition under Section 110 (1) of the Motor Vehicles Act cannot be entertained and it is held that when outside agency was also responsible in causing the accident by rash and negligent use of motor vehicle, then outside agency can be treated as joint tort-feasors. Claims Tribunal can pass award only against one of the joint tort-feasors i.e. driver of the motor vehicles along with its owner and insurer as the case may be, so far as other tort-feasors are concerned, the claimant must be driven to Civil Court for establishing his claim against other joint tort-feasors, it is likely to result into conflicting decisions of two component forums in connection with the same accident based on the same set of facts. It is further held that when the tort-feasor is the driver of the motor vehicle, either sole or joint, with any one else, so far as inter se liability of the driver of the offending vehicle and the insurer is concerned, it is to be specified by the Tribunal so that their respective shares in the contribution of compensation can be clearly demarcated. F.A.O. No. 619 of 1994 & F.A.O. No. 620 of 1994 -5- The Apex Court while examining all pros and cons in cases of composite negligence was of the view that the claimant was not required to choose as to against whom he was to proceed out of two and to determine their extent of liability. It was observed in case Andhra Pradesh State Road Transport Corporation and another vs. K. Hamalatha and others, 2008 ACJ 2170, in para No.10, which reads as under :- “10. '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 account of the composite negligence of those wrongdoers. In such a case, each wrongdoerd, 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 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 negligence on the part of another person or persons, and 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 negligence on his part but the damages recoverable by him in respect of the injuries shall stand reduced in proportion to his contributory negligence.” The judgment is clear enough to convey the distinction between the composite negligence and contributory negligence and the rights of the injured to proceed against the two joint tort-feasors. The Apex Court in K. Hemalaltha's case (supra) laid down the following fundamentals :- 1. In case of composite negligence, each wrongdoer is jointly and severally liable to the injured for payment of entire damages. F.A.O. No. 619 of 1994 & F.A.O. No. 620 of 1994 -6- 2. The injured was at liberty to proceed against all or any of them. 3. The injured is not required to establish the extent of responsibility of each wrongdoer separately. 4. It is not necessary for the court to determine the extent of liability of each wrongdoer separately. 5. In case of contributory negligence, the injured would be responsible to suffer for extent of negligence he has committed. Similar question arose before the Madhya Pradesh High Court in case Sushila Bhadoriya and others vs. M.P. State Road Transport Corporation, 2005 (2) RCR (Civil) 177, wherein the Full Bench summed up the following principles :- (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 any one of them. (ii) There cannot be apportionment of the liability of joint tort-feasors. In case both the joint tort-feasors are impleaded 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 principles of law, there is no necessity to apportion the inter se liability of joint tort-feasors.” Thus, on conspectus of the aforesaid discussions, posers set up by this Court are answered as under :- “In case of composite negligence, owners, drivers and insurer of both the vehicles are not necessary parties and the court is not required to make apportionment of the liability of the joint tort feasors as they are jointly and severally liable to pay the compensation.” F.A.O. No. 619 of 1994 & F.A.O. No. 620 of 1994 -7- The Tribunal fell in error while treating the present case to be that of contributory negligence, whereas it was a case of composite negligence as to apportioning the liability to pay compensation. As such, the observations made by the Tribunal, in this regard, qua issue No.1 are set aside to the extent that the respondents would be jointly and severally responsible to pay compensation. Now coming to the quantum of compensation, the claimant has not pressed for enhancing the compensation as awarded by the Tribunal to Bishamber. However, learned counsel has urged qua Ramesh Kumar claimant that he was 16 years old and 1/3rd of his right forearm was amputated. The doctor declared his disability to the extent of 70%, whereas, the court awarded compensation as under :- Permanent disability : Rs.80,000/- Medical treatment : Rs.7000/- Actual loss of earning : Rs.3000/- Pain and suffering : Rs.20,000/- Total : Rs.1,10,000/- On scrutiny of the aforesaid observations, it transpires that the compensation awarded by the Tribunal is not adequate. Learned counsel has urged that nothing was awarded on account of special diet, attendant, loss of enjoyment and transportation. He has claimed Rs.2000/-, Rs.3000/-, Rs.3000/- and Rs.2000/- respectively, in respect of these heads. Having pondered over the argument, I agree with the contention and award compensation as urged by the learned counsel, wherein he has claimed Rs.10000/- over and above the award amount. Even while examining the case from another angle, the income of the injured was assessed at Rs.864/- per month and Rs.10,368/- per annum and while applying the multiplier of 16, which was prevalent at that time, the total compensation which the injured could earn comes to Rs.1,65,888/-. While considering the disability of 70%, the total loss comes to Rs.1,16,121/-, as such, while adding Rs.10,000/- more towards the aforesaid heads, the total loss for which the claimant could be compensated comes to Rs.1,20,000/-. F.A.O. No. 619 of 1994 & F.A.O. No. 620 of 1994 -8- Resultantly, I partly accept the appeal (FAO No.619 of 1994) filed by Ramesh Kumar, modify the impugned award and order that the respondents would be jointly and severally liable to pay compensation to the tune of Rs.1,20,000/- along with interest @ 12% per annum. Parties would bear their own costs. The appeal (FAO No.620 of 1994) filed by Bishamber stands dismissed. May 06, 2010 (A.N. Jindal) deepak Judge