caselaws
Supreme Court of India
Khenyei vs New India Assurnace Co.Ltd.& Ors on 7 May, 2015Author: A Mishra
Bench: H.L. Dattu, S.A. Bobde, Arun Mishra
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4244 OF 2015
[Arising out of SLP (C) No.14015/2010]
Khenyei … Appellant
Vs.
New India Assurance Co. Ltd. & Ors. … Respondents
With CA No.4245/2015 @ SLP [C] No.14699/2010; CA No.4246/2015 @ SLP [C]
No.14700/2010; CA No.4247/2015 @ SLP [C] No.14701/2010; CA No.4248/2015 @
SLP [C] No.14743/2010; CA No.4249/2015 @ SLP [C] No.14847/2010; and CA
No.4250/2015 @ SLP [C] No.14865/2010.
J U D G M E N T
ARUN MISHRA, J.
1. Leave granted.
2. In the appeals, the main question which arises for
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 2/3rd and 1/3rd extent respectively.
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 evidence adduced the High Court
has come to the conclusion that the 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 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 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 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 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 has
been observed that in composite negligence, apportionment of compensation
between two tort feasors is not permissible.
6. In Law of Torts by Winfield and Jolowicz, 17th Edn., 2006, the
author has referred to Performance Cars Ltd. v. Abraham [1962 (1) QB 33],
Baker v. Willoughby 1970 A.C. 467, Rogers on Unification of Tort Law:
Multiple Tortfeasors; G.N.E.R. v. Hart [2003] EWHC 2450 (QB), Mortgage
Express Ltd. v. Bowerman & Partners 1996 (2) All E.R. 836 etc. and 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
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 that the
claimant is entitled to sue all or any of them for the full amount of his
loss, and each is said to be jointly and severally liable for it. If the
claimant sues defendant A but not B and 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 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 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. Even where all 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 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,
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 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 “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 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
liability.”
7. Pollock in Law of Torts, 15th Edn. has discussed the concept of
composite negligence. The relevant portion at page 361 is extracted below :
“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 can not 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 cases 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 Author has observed as :-
“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 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 can not recover in the whole
more than his whole damage.”
8. In Palghat Coimbatore Transport Co. Ltd. v. 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 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 recover the full amount of damages
from any of the defendants.
9. In National Insurance Co. Ltd. v. P.A. Vergis & Ors. [1991 (1)
ACC 226], it has been observed that the case of composite negligence is one
when accident occurs and resulting injuries and damages flow without any
negligence on the part 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. [1989 2 ACC 483 = 1989 ACJ 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. 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
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 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 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.
10. A Full Bench of the High Court of Karnataka at Bangalore in
Karnataka State Road Transport Corporation, Bangalore and etc. v. Arun
alias Aravind 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 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 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 ?
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) 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 was entitled
to full compensation quantified by the Tribunal. The Full Bench referred
to the decision of a Division Bench of the Gujarat High Court in Hiraben
Bhaga & Ors. v. Gujarat State Road Transport Corporation [1982 ACJ (Supp.)
414 (Guj.)] in which it has been laid down that it is entirely the choice
of the claimant whether to implead both the joint tort feasors or either of
them. On failure of the claimant to implead one of the joint tort feasors,
contributory liability cannot be fastened upon the claimant to the extent
of the negligence of non-impleaded joint tort feasors. It is for the joint
tort feasors made liable to pay compensation to take proceedings to settle
the equities as against other joint tort feasors who had not been
impleaded. It is open to the impleaded 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
(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-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. Sushila
Bhadoriya & Ors. v. M.P. State Road Transport Corpn. & Anr. [2005 (1) MPLJ
372] has also 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 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 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 :
“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 distinguish the act of each joint tort-feasor, liability can 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 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 negligence of joint
tort-feasors. In such cases, joint tort-feasors will be jointly and
severally liable to pay the compensation.
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
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- 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:-
(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.
(ii) There can not 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 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.”
13. In our opinion, the law laid down by the Madhya Pradesh High
Court in Smt. Sushila 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 same time, suffice it to clarify that even if all
the joint tort feasors are 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 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, 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 contributed to the accident but the outcome of combination
of negligence of two or more other persons. This Court in T.O. 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 separately, nor is it necessary for the court to determine the
extent of liability of each wrong doer separately. It is only in the 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 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 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 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 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
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 negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the
drivers claims compensation 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
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 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 contributory negligence. The High Court
has failed to correct the said error.”
15. The decision in T.O. Anthony v. Karvarnan & Ors. (supra) has
been relied upon in Andhra Pradesh State Road 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 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, 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 Kasar v. D.S. Mylarappa & Ors. [2008
(13) SCC 198] and also as to joint tort feasors. This Court has referred
to Charlesworth & Percy on negligence as to cause of action in regard to
joint tort feasors thus:
“42. Joint tortfeasors, as per 10th Edn. of Charlesworth & Percy on
Negligence, have been described as under :
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,
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) 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 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 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
negligence. However, in case when both the tort feasors are before the
court/tribunal, 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 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 :
“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 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 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 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 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 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.”
17. In Oriental Insurance Co. Ltd. v. Nanjappan & Ors. [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 Baljit Kaur’s case [2004 (2) SCC 1]
that the insurer shall pay the quantum of compensation fixed by the
Tribunal, about which there was no 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 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 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 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 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 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 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 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 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 would be to file another
suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(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.
(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.
(iii) In case all the joint 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 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
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.
(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 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 and order
passed by the High Court is hereby set aside. Parties to bear the costs as
incurred.
………………………CJI
(H.L. Dattu)
…………………………..J. (S.A. Bobde)
New Delhi; ………………………….J.
May 07, 2015. (Arun Mishra)
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