SALLY JOSEPH Vs. JOSE V JOSE

JUDGEMENT

(1.) IN this appeal under S. 110-D of the Motor Vehicles Act, 1939 (in short, the Act), appellants (hereinafter referred to as 'claimants')in respect of a claim under S. 110a of the Act have challenged the judgment of the Motor Accidents Claims Tribunal, Kottayam (in short, the Tribunal) in so far as it relates to apportionment of liability, after recording a finding of composite negligence.

(2.) FACTUAL position is as follows:- Compensation was claimed by claimants on the death of one V. K. Joseph (hereinafter referred to as deceased), who lost his life in an automobile accident on 30. 4. 1987. Two vehicles, bearing registration number KRO 2848 and KLA 340, were involved in the accident. Claimants' case was that KRO 2848 (bus) came at a high speed from behind KLA 340 (car) and while overtaking the same, hit against the deceased, as a result of which, he sustained severe injuries. Before KRO 2848 hit the deceased, KLA 340 dashed against back of deceased, who was thrown away and at that point of time, the other vehicle hit him. Deceased, though taken to hospital, succumbed to injuries sustained on account of the accident. He was aged 34 years and was getting Rs. 1000/- per mensem. A claim of Rs. 2,00,000/-was made against owners of offending vehicles along with New India Assurance co. Ltd. (hereinafter referred to as 'insurer' ). It is to be noted that vehicle kro 2848 was subject matter of insurance and a policy covering the period of accident was issued by insurer. Tribunal on consideration of evidence, held that owners of both the offending vehicles were responsible and liable to pay compensation. An award of Rs. 1,65,000/- together with interest at the rate of 12% from the date of petition, was passed. As the vehicle KLA 340 was not the subject matter of insurance, it was held that owner of the vehicle was to pay compensation. As the insurer had undertaken to indemnify compensation in respect of the other vehicle, it was held that compensation was to be paid equally by the owner of the vehicle and the insurer.

(3.) COMPOSITE negligence is not a term defined or explained. It should ordinarily mean that both acts of negligence operate at the same time so as to form one transaction, which gets so mixed up that it is not possible to separate the same in order to find out the whole fault in question. Principles of composite negligence are, when more than one person are responsible in the commission of the wrong, that the person wronged has a choice of proceeding against all or anyone or more than one of the wrongdoers. Every wrongdoer is liable for the whole damage if it is otherwise made out. Primary distinction between 'contributory negligence' and 'composite negligence' is that in the former an act or omission on the part of the injured or deceased is involved, which has materially contributed to the damage. In the latter, a person is injured or his death occurs without any negligence on his part, but as a result of the combined effect of the negligence of two or more other persons. There is cleavage of opinion on the question whether Tribunal can direct apportionment of the liability. In New India Assurance Co. Ltd. v. Avinash (1988 (1) ACJ 322), National Insurance Co. Ltd. v. Kastoori Devi (1988 (1) ACJ 8), it has been held that in a case of composite negligence, there is no method or indicia to bifurcate or apportion the liability. But in Inder singh v. Haryana State (1987 (1) ACJ 94), Darshani Devi v. Sheo Ram (1987 (2)ACJ 931) and Narinder Pal Singh v. Punjab State (AIR' 1989 P & H 82), a different view has been taken. In. our view, the latter view is in consonance with statutory intent as reflected in S. 110-B of the Act (corresponding to s. 168 of Motor Vehicles Act, 1988 ). It is clear that while awarding the amount in a case of composite negligence, Tribunal can direct payment of the entire compensation jointly and severally, but at the same time would apportion the liability between the two owners for their facility and if both the owners or two insurance companies, as the case may be, pay amounts to the claimant in proportion as awarded by Tribunal, there is no problem for the claimant. But, if one of the parties liable does not want to honour the award of Tribunal, it will be open to claimant to recover the entire amount from the other, leaving such party to claim rateable distribution from the other. Where negligent acts of two or more independent persons have between them caused damage to a third, sufferer is not driver to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set by general rules as to remoteness of damage to sue all or any one 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 cannot recover in the whole more than his whole damage.