IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.7427 of 2010 (O&M) Date of decision:24.12.2010 Mishra Singh and another ....Appellants versus Jarnail Singh and another ...Respondents II. FAO No.7428 of 2010 (O&M) Mishra Singh and another ....Appellants versus Baljit Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Rajesh Bhatheja, Advocate, for the appellants. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The appellants are the owner and the driver of the tractor which ran over a person that died and yet another who was injured. The claims were at the instance of the representatives of the deceased and of the claimant who was injured. The contention by the appellants is that the accident took place when the tractor in which the deceased and the injured were travelling was attempting to overtake the appellants' tractor and at that time, the other tractor capsized and the two persons came under the wheels of the appellants' tractor. At the trial, the evidence was FAO No.7427 of 2010 (O&M) - 2 - that when the other tractor was overtaking the appellants' tractor, the driver of the appellants' tractor did not deliberately give way and suddenly swerved to the right and the other tractor attempted to save a collision and when the other driver attempted to steer his vehicle out of the way, the vehicle capsized and the two persons met with the accident in the manner narrated above. In the manner in which the narration is made, there was certainly rashness and negligence on the part of the appellants' driver. 2. The learned counsel would contend that the accident had taken place only by the negligent act of the driver of the other tractor whose vehicle capsized and if any of the persons travelling in the other other tractor had come under the wheels of the appellants' tractor, the whole of the negligence cannot be placed on the appellants and a large share of responsibility for the accident must be taken by the driver of the other tractor. If it was merely a question of apportionment of liability between two tractors, then as regards two of the persons, who had come by harm, the accident was one of composite negligence and law permits the claimants to file a case against anyone of the joint tort feasors. The entire law on this subject has been considered by this Court in The Oriental Insurance Company Limited Versus Smt. Meena Kumari and others in FAO No.4246 of 2006, decided on 24.08.2010. The claimants were, therefore, entitled to make a case against the appellants and succeed to obtain a right of enforcement of the entire claim against the appellants only. The appellant, who appears to have taken an objection regarding the non-impleadment of the driver and the owner of the other FAO No.7427 of 2010 (O&M) - 3 - tractor could have no relief in this case itself for the issue of apportionment to whatever finding that is given will be meaningless for the driver and the owner who are not impeaded cannot suffer any adverse finding in their absence. The learned counsel wants to record the fact that yet another vehicle also involved in the accident had also contributed to the accident. While making the appellants liable and affirming the award, the appellants shall be at liberty to independently work out the rights seeking for contribution in a civil suit if any proof of negligence for the accident could be attributed to the driver of the other tractor and to make the owner or its insurer liable for such an accident. 3. Subject to these observations, the appeals are dismissed. (K.KANNAN) JUDGE 24.12.2010 sanjeev