IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.319 of 2004 (O&M) Date of decision:13.07.2010 The New India Assurance Company Limited ....Appellant versus Rajesh Kumar and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. N.K.Khosla, Advocate, for the appellant. None for the respondents. ---- 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. 1. The appeal is by the insurer of a bus which faced the claim for compensation for injuries by a pedestrian on a road. The accident as narrated by the petitioner was that the accident took place on 19.02.2000 when a scooterist by name Krishan Kumar son of Mangtu Ram was carrying cotton seeds in his scooter which fell on the claimant and by the impact he fell down. The ongoing bus belonging to the 2nd respondent and driven by the 1st respondent before the Tribunal, hit the claimant and he suffered injuries. The Tribunal found that it was a case of composite negligence and directed both the respondents to be jointly and severally liable, further determining compensation of Rs.1,89,756/-. 2. The contention of the learned counsel appearing on behalf of the petitioner is that the insurer of the scooter has not been made as a party. The Tribunal ought to have apportioned the liability and could not FAO No.319 of 2004 (O&M) - 2 - have directed the amount to be paid by one person only. Since the entitlement of the claimant to recover against anyone of the tort feasors is too well settled a proposition of law that it could be enforced against anyone of them, I hold that the joint and several liability as awarded by the Tribunal is correct. However, in the case where the drivers of both the vehicles had been impleaded in the proceedings, the Tribunal ought to have determined the extent of liability of both the vehicles. The case was instituted in 2002 and I do not find any purpose in remitting the matter only for such consideration. From the narration of facts, the initial impact was by the load carried by the scooterist. It was by the fall on the claimant and due to such impact that the claimant fell in the first place. The bus also hit the claimant and caused injuries. The bus driver was equally negligent in not applying caution to prevent being hitting the pedestrian. I would apportion the liability between the driver of the bus and the scooterist as 40:60 respectively. If the amount has been claimed against the appellant-Insurance Company, the same may be recovered to the extent of 60% by execution proceeding against the 4th respondent and his insurer which is said to be the Oriental Insurance Company through independent proceeding. 3. The appeal is, therefore, confirmed as regards the joint and several liability cast by the Tribunal but I would provide to the appellant a right of recovery to the extent of 60% of the whole amount against the 4th respondent and his insurer in the manner referred above. (K.KANNAN) 13 .07.2010 JUDGE sanjeev