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2016 Supreme(Tri) 309
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Smt. Durga Dey W/o Late Mangal Dey – Appellant
Versus
Sri Ratan Sabdakar S/o Amaresh Sabdakar – Respondent
MAC APP. No. 10 of 2014
Decided On : 21-09-2016
For the Petitioner: Mr. S.K. Dutta.
For the Respondent: Mr. P. Gautam.
The liability of joint tortfeasors is joint and several, and claimants can recover the entire compensation from any of them in case of composite negligence.
Headnote:
Motor Vehicles Act - Severance of Liability - Khenyei vs. New India Assurance Co. Ltd., 2015 ACJ 1441; Challa Bharathamma, 2004 ACJ 2094 (SC); Nanjappan, 2004 ACJ 721 (SC); Asha Verman and Others vs. Maharaj Singh and Others, 2015 ACJ 1286 - Section 173 of the Motor Vehicles Act
Fact of the Case:
The appeal under Section 173 of the Motor Vehicles Act challenged the judgment and award delivered by the Motor Accident Claims Tribunal, Court No. 2, West Tripura, Agartala. The claimant-appellants objected to the severance of liability and the inadequacy of compensation awarded.
Finding of the Court:
The court found that the liability of joint tortfeasors is joint and several, and the claimants can recover the entire compensation from any of them in case of composite negligence. The court also observed that the tribunal's determination of liability and compensation was against the law as decided by the apex court.
Issues: Severance of liability, adequacy of compensation, determination of non-pecuniary damages
Ratio Decidendi: The liability of joint tortfeasors is joint and several, and claimants can recover the entire compensation from any of them in case of composite negligence. The determination of non-pecuniary damages should follow the guidelines laid down by the apex court.
Final Decision: The appeal was partly allowed, and the respondent No. 2 was directed to pay the entire award to the claimant-appellants. The court also adjusted the compensation amounts based on the principles laid down by the apex court.
1. Heard Mr. S.K. Dutta, learned counsel appearing for the claimant-appellants as well as Mr. P. Gautam, learned counsel appearing for the respondent No. 2, Oriental Insurance Company Ltd. Despite due notice from this court none appears for the respondent No. 1 when the matter was taken up for hearing.
2. By means of this appeal under Section 173 of the Motor Vehicles Act, the judgment and award dated 23.12.2013 delivered in T.S. (MAC) No. 271 of 2009 by the Motor Accident Claims Tribunal, Court No. 2, West Tripura, Agartala has been called in question.
3. The foremost ground of objection as advanced by Mr. S.K. Dutta, learned counsel appearing for the claimant-appellants can be cataloged as under:
(i) Severance of the liability and direction to the respondent No. 2 to pay only 50% of the total award is entirely erroneous and misconceived.
(ii) The consortium and the loss of estate as granted to the claimants are not only inadequate but entirely unreasonable. That apart the monthly income of the deceased as assessed by the tribunal is without any evidence. The claimants asserted that the deceased used to earn Rs. 3,900/- per month whereas the tribunal has determined his monthly income at Rs. 3000/-.
4. Mr. Dutta, learned counsel appearing for the appellants has relied on a decision of the apex court in Khenyei vs. New India Assurance Co. Ltd. and Others, 2015 ACJ 1441. In that report, the apex court has dilated over the composite negligence, liability of the Joint tortfeasors and apportion of inter se liability. The apex court has held by enunciating the law in this regard as follows:
"18. This court in Challa Bharathamma, 2004 ACJ 2094 (SC) and Nanjappan, 2004 ACJ 721 (SC), 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 as 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 insurer. The same analogy can be applied to the instant cases as the liability of the joint tortfeasor 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 trailer-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 trailer-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 tortfeasor 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 tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tortfeasors 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 tortfeasors 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 tortfeasors 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
