2008 Supreme(SC) 161

2008(7) Supreme 243
SUPREME COURT OF INDIA
K.G. Balakrishnan, CJI., R.V. Raveendran, J.
T. O. Anthony — Appellant
versus
Karvarnan and Others — Respondents
Appeal (civil) 1082 of 2008
Decided on : 01-02-08

IMPORTANT POINT
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.

Headnote:Motor vehicular accident – Head-on collusion between a KSRTC bus driven by appellant and a private bus driven by respondent 1 – Appellant sustained injuries including fracture of right femur – Claim petition – Tribunal held that accident occurred due to contributory and composite negligence of the drivers of both the vehicles, the liability should be fifty – fifty – Appeal – High Court allowing appeal in part not disturbed the finding regarding negligence- It however increased the compensation and directed payment of an additional compensation of Rs.39,900/- to the appellant with interest at 9% P.A. – Appeal – Plea of appellant that Tribunal and High Court ought to have held that the respondent 1 was solely responsible for the accident – Tribunal assumed that the extent of negligence of the appellant and the first respondent was fifty : fifty because it was a case of composite negligence – Tribunal, fell into a common error committed by several Tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same – 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 had 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 – Even High Court failed to correct the said error – No dispute that appellant was on right side of the road and the private bus came partly to the wrong side of the road – But the fact that there was a head-on collision could not be ignored – Evidence showed that appellant was not diligent, as he neither slowed down the bus nor swerved to his left, on seeing the oncoming bus – In view of facts and circumstances held that appellant was also partly responsible for the accident and responsibility was fixed at 25% on the appellant and 75% on respondent1 – Appeal allowed in part. (Paras 5, 7, 8)

        Composite negligence and contributory negligence – Distinction between – ‘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. (Para 6)

       Facts of the Case :

        1. In a Head-on collusion between a KSRTC bus driven by appellant and a private bus driven by respondent 1, Appellant sustained injuries including fracture of right femur. On Claim petition,Tribunal held that accident occurred due to contributory and composite negligence of the drivers of both the vehicles and that liability should be fifty-fifty. Appeal there against was allowed in part by High Court. High Court not disturbed the finding regarding negligence. It however increased the compensation and directed payment of an additional compensation of Rs.39,900/- to the appellant with interest at 9% P.A

        2. Aggrieved by said findings of Tribunal and High Court, appellant has preferred present appeal.

       Findings of the Court :

        Tribunal assumed that the extent of negligence of the appellant and the first respondent was fifty:fifty because it was a case of composite Negligence. Tribunal, fell into a common error committed by several Tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same. 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 had 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. Even High Court failed to correct the said error. In view of facts and circumstances held that appellant was also partly responsible for the accident and responsibility was fixed at 25% on the appellant and 75% on respondent 1.

       Result : Appeal allowed in part.