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2004 Supreme(MP) 820
2005(1) JLJ 15
(FULL BENCH)
S.S. Jha, A.K. Gohil and Chandresh Bhushan, JJ.
Sushila Bhadoriya (Smt.) and others v. M.P. State Road
Transport Corporation and another
Misc. Appeal No. 385 of 1997; against the award of II Motor
Accidents Claims Tribunal, Gwalior, passed in Claim Case No. 18 of
1996; Decided on 29.10.2004.
R.P. Gupta with A.P. Gupta for appellants;
S.S. Bansal for respondents.
Headnote:(1) Motor Vehicles Act, 1988 -- Ss. 166 and 168 -- claim petition in a case of composite negligence u both the joint tort-feasors are not necessary parties -- it is not possible to apportion ratio of negligence of each tort-feasor -- award can be passed against both or anyone of them.
This case is referred to the larger Bench to settle the question whether apportionment is permissible in case of composite negligence. This Court has decided a number of cases on the question of composite negligence and due to divergent views pertaining to composite negligence, the dispute is referred to the larger Bench. [Para 1
Held: In the cases of joint tort-feasors when the liability is joint and several, it is the choice of the claimant to implead either driver, owner and insurer of both the vehicles, or of one vehicle and recover, the whole amount of compensation from one of the tort-feasors. It is not necessary for him to implead both the tort-feasors.
[Para 23
In the cases of joint tort-feasors, it is difficult to determine the extent of liability of each tort-feasor and it will not be possible to apportion the ratio of negligence of the joint tort-feasors. In the case of composite negligence or in the Cases of joint tort-feasors arising out of the use of motor vehicle, award can be passed against both or anyone of them for the entire amount because the injured is not in a position to quantify or qualify the apportionment of each vehicle. Since he has suffered injury on account of use of motor vehicles, both the motor vehicles will be jointly and severally liable to pay the compensation. It is the choice of the claimant to sue both or may claim compensation from one of the joint tort-feasors as their liability is joint and several. 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 the vehicles appearing in the witness box. Therefore, there cannot be any apportionment of the claim between the joint tort-feasors. 1968 JLJ 189, 1997 ACJ 649, 1995 JLJ 103,2001(2) MPLJ 299, 2000 ACJ 663, 1991 ACJ 198, 1977 ACJ 293,1974 JLJ 40, AIR 1985 Mad. 109, 1973 ACJ 531, AIR 1970 SC 1468, AIR 1934 Nag. 226, (2003) 6 SCC 137, 2004 ACJ 53, AIR 1988 Guj. 13, 1994 ACJ 519, 2000 ACJ 1182, 1996 ACJ 165 and (1997) 8 SCC 683 discussed and explained. [Para 24
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 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. [Para 27
(2) Words and Phrases -- words ‘composite negligence‘ -- as defined is a case where injury is caused by the wrongful act of two parties. [Para 19
¼1½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 166 rFkk 168 && la;qDr mis{kk ds ekeys esa nkok vthZ && nksuksa vid`R;drkZ vko‘;d i{kdkj ugha && izR;ssd vid`R;drkZ dks mis{kk dk vuqikr izHkkftr djuk laHko ugha && vf/kfu.kZ; muesa ls ,d vFkok nksauksa ds fo#) ikfjr fd;k tk ldrk gSA
c`gÙkj U;k;ihB dks bl ekeys dk funsZ‘k bl iz‘u ds fofuf‘p;u ds fy, fd;k x;k gS fd D;k la;qDr mis{kk ds ekeys esa izHkktu vuqKs; gSA bl U;k;ky; us la;qDr mis{kk ds iz‘u ij cgqla[;d ekeys fofuf‘pr fd, gS rFkk la;qDr mis{kk ds fo"k; esa fHkUu erksa ds dkj.k fookn dk funsZ‘k c`gÙkj U;k;ihB dks fd;k x;k gSA ¿ iSjk 1À
vfHkfu/kkZfjr % ,sls vid`R;drkZvksa ds ekeys esa tgk¡ nkf;Ro la;qDr vkSj i`Fkd~ gS] nksukasa ;kuksa ds vFkok ,d ;ku ds pkyd] Lokeh vkSj chekdrkZ dks i{kdkj cukuk rFkk izfrdj dh laiw.kZ jde ,d vid`R;drkZ ls olwy djuk nkosnkj dh ilan ij fuHkZj djrk gSa mlds fy, vid`R;drkZ dks i{kdkj cukuk vko‘;d ughaA ¿ iSjk 23À
la;qDr vid`R;drkZ ds ekeyksa esa izR;sd vid`R;drkZ ds nkf;Ro dh lhek vo/kkfjr djuk dfBu gS rFkk la;qDr vid`R;drkZ dks mis{kk dk vuqikr izHkkftr djuk laHko ugha gksxkA eksVj ;ku ds mi;ksx la;qDr mis{kk ds ekeyksa esa vFkok la;qDr vid`R;drkZ ds ekeyksa esa] laiw.kZ jde ds fy, vf/kfu.kZ; nksuksa vFkok muesa ls fdlh Hkh ,d ds fo#) ikfjr fd;k tk ldrk gS D;ksfd {kfrxzLr O;fDr izR;sd ;ku dk izHkktu ifjekf.kr djus ;k crkus dh fLFkfr esa ugha gksrkA D;kasfd mls {kfr eksVj ;ku ds mi;ksx ds dkj.k igq¡ph gksrh gS] nksuksa ;ku la;qDr rFkk i`Fkd~ :i ls izfrdj lanÙk djus ds fy, nk;h gksxsaA ;g nkosnkj dh ilan ij fuHkZj gS fd og nksuksa ij okn yk, vFkok la;qDr vid`R;drkZvksa es ls ,d ls izfrdj dk nkok djs] D;kasfd mudk nkf;Ro la;qDr vkSj i`Fkd~ gksrk gSA ,d ckj mis{kk vkSj izfrdj dk vo/kkj.k gks tk, rc mu nksuksa ds e/; izfrdj izHkkftr djuk vuqKs; ugha gS D;ksafd ;kuksa ds pkydksa ds lk{kh dB?kjs esa mifLFkr ugha gksus ij izHkktu vo/kkfjr djuk dfBu gSA vr%] la;qDr vid`R;drkZvksa ds e/; nkos dk izHkktu ugha gks ldrkA 1968 ts ,y ts 189] 1997 , lh ts 649] 1995 ts ,y ts] 103] 2001¼2½ ,e ih ,y ts 299] 2000 ,e lh ts 633] 1991 , lh ts 198] 1977 ,l lh ts 293] 1974 ts ,y ts 40] , vkb vkj 1985 enzkl 109] 1973 , lh ts 531] , vkb vkj 1970 ,l lh 1468] , vkb vkj 1934 ukx- 226] ¼2003½6 ,l lh lh 137] 2004 ,l lh ts 53] , vkb vkj 1988 xqat] 13] 1994 , lh ts 519] 2000 ,l lh ts 1182] 1996 ,l lh ts 165 rFkk ¼1997½8 ,l lh lh 683 foosfpr rFkk Li"Vhd`rA ¿ iSjk 24À
lkjka‘k esa] ge fuEukuqlkj vfHkfu/kkZfjr djrs gS %
;kuksa esa ls ,d ;ku ds Lokeh] pkyd vkSj chekdrkZ ij okn yk;k tk ldrk gS rFkk nksuksa ;kuksa ds Lokeh] pkyd vkSj chekdrkZ ij okn ykuk vko‘;d ugha gSA nkosnkj nksuksa ;kuksa ds vFkok nksuksa esa ls fdlh ,d ;ku ds Lokeh] pkyd vkSj chekdrkZ dks i{kdkj cuk ldrs gSA
la;qDr vid`R;drkZvksa ds nkf;Ro dk izHkktu ugha gks ldrkA ;fn nksuksa la;qDr vid`R;drkZ i{kdkj cuk, x, gksa rFkk ;fn vfHkys[k ij i;kZIr lkexzh gS rc nkok vf/kdj.k }kjk izHkktu ds iz‘u ij fopkj fd;k tk ldrk gSA rFkkfi] fof/k ds lk/kkj.k fl)karks ds vuqlkj] la;qDr vid`R;drkZvksa ds ,d&nwljs ds eqdkcys ds nkf;Ro dk izHkktu vko‘;d ugha gSA ¿ iSjk 27À
¼2½ ‘‘kCn rFkk okD; && ‘‘kCn *la;qDr vis{kk* && ifjHkk"kk ds vuqlkj ,slk ekeyk gS tgk¡ {kfr nks nyksa ds nks"kiw.kZ dk;Z ls dkfjr gqbZ gksA ¿ iSjk 19À
Jha, J. -- 1. This case is referred to the larger Bench to settle the question whether apportionment is permissible in case of composite negligence. This Court has decided a number of cases on the question of composite negligence and due to divergent views pertaining to composite negligence., the dispute is referred to the larger Bench.
2. First case decided on this question is of Manjula Devi Bhuta v. Manjusri Raha and others 1968 JLJ 189 = 1968 ACJ 1 MP). In this case, the Court considered types of negligence including composite negligence and contributory negligence and after considering the difference between contributory negligence and composite negligence, it is held that when the victim has suffered injuries or death is caused on account of act of two vehicles without his fault, then the claimant is free to choose any of the joint tort-feasors and claim compensation from him. While considering this aspect, it is held that in our view where as a result of collision between two motor vehicles, a person other than their driver, is injured, the Tribunal will not fix contribution as between persons liable (apart from specifying the liability of the insurer).
3. In the case of Gujrat State Road Transport Corporation v. Shardabai and others (1997 ACJ 649), Division Bench of this Court while interpreting the judgment in the case of Manjula Devi Bhuta (supra) has held that the claimant has right to recover whole amount of the compensation from the owner of one vehicle without impleading the owner and driver and insurance company of the other vehicle.
4. In the case of Virnla Gangotiya v. National Insurance Co. Ltd. and others (1995 JLJ 103 = 1995 ACJ 53), it is held that it is proper to appor1ion the inter se liability and specify the amount payable by the two tort-feasors, while interpreting the judgment in the case of Manjula Devi Bhuta (supra).
5. In the case of National Insurance Co. Ltd. v. Chand Ratan [2001(2) MPLJ 299] it is held that in composite negligence, both tort-feasurs are severally and jointly liable to pay the compensation to the claimant. It is the discretion of the claimant to proceed against both the tort-feasors or against one. The remedy of the tort-feasors who is proceeded against is to recover the amount from the other tort-feasor. The liability of inter-se tort-feasors can be decided to avoid the multirariousness of the proceedings. However, while considering the case of Manjula Devi Bhuta (supra) it is held in para 6-A of the judgment that while referring to the decision of this Court in Manjula Devi Bhuta and also on the observations made in law of Torts second edition 1992 by Justice G.P. Singh that in composite negligence, apportionment of compensation between two tort-feasors is not permissible. While referring to the judgment in the case of Kirti and another v. Rajendra and others (2000 ACJ 663), wherein it is held that in composite negligence, the amount of compensation cannot be apportioned and the claimants cannot be directed to proceed to recover the apportioned amount from each vehicle. After referring to this judgment, it is held that liability of tort-feasors inter se can be decided.
6. In the case of Hullanbai and others v. Jagdish Prasad and others (1991 ACJ 198), Division Bench of this Court has held that apportionment of inter se liability is permissible and liability was apportioned. While deciding the composite negligence, it is held that every wrongdoer is liable and it does not lie in the mouth of one wrongdoer to say that though I am also responsible, yet the other man was also equally responsible for the wrong and on this basis, he cannot avoid the liability. It is further held that normally in the case of composite negligence, it is not possible to fix the liability among the different drivers but both are jointly and severally liable to the claimant because they are joint tort-feasors. However, in para 17, it is held that the liability for payment of the amount of the award of t
