AMARSI JUGHABHAI DRIVER Vs. VIJAYABEN HEMANTLAL DHULIA

JUDGEMENT

(1.) So far as Civil Appeal No. 1914 of 1984, which arises out of Claim Case No. 154 of 1982 is concerned, it was submitted by Mr. K. F. Dalal, learned Counsel for the appellants that the appellant No. 1-truck driver and deceased Hemantlal, who is found to be 25% negligent in the accident, were joint tort-feasors and the claimants in Claim Case No. 154 of 1982 having not impleaded either the heirs of deceased Hemantlal who was driver-cum-owner of car bearing registration No. GTQ-7064 or the Insurance Company with which the said car was insured, the appellants would be liable to satisfy the claim of the claimants only to the extent of 75% and the entire amount of compensation awarded cannot be recovered from the appellants. It was submitted that in a case of composite negligence, in the absence of all the joint tort-feasors, the entire amount cannot be realised from the joint tort-feasor who is sued because the joint tort-feasor who is sued would not be in a position to realise the amount from the other joint tort-feasor, who is not a party before the Court, in case it is made liable to pay the entire amount. The learned Counsel further submitted that in the written statement it was specifically contended that the driver-cum-owner of the car bearing registration No. GTQ-7064 and in the alternative his heirs and Insurance Company with which the said car was insured were necessary parties and no action having been taken by the claimants in Claim Case No. 154 of 1982 to implead the owner-cum-driver of car bearing registration No. GTQ-7064 and the Insurance Company with which it was insured as parties to the proceedings, the appellants cannot be made to pay the entire amount to the claimants and suitable deduction should be made from the amount of compensation which is awarded to the claimants. The learned Counsel also submitted that the negligence having been apportioned by this Court, the claimants should be directed to recover 25% of the amount of compensation from the driver-cum-owner of car bearing registration No. GTQ-7064 and/or his heirs and the Insurance Company with which the said car was insured, but the appellants should not be made to pay the entire amount in question. In support of his submission, learned Counsel placed reliance on the decisions rendered in the case of (1) Bhajan Lal Bishnoi v. Rajasthan State Road Transport Corporation, 1991 ACJ 651 and (2) Bakhtawar Singh and Anr. v. Gurbachan Singh and Ors., 1991 ACJ 362.

(2.) Mr. Mehta, learned Advocate for the claimants submitted that in a case of composite negligence, it is for the claimants to choose any of the joint tort-feasors and claim the entire amount from him irrespective of the fact whether the other joint tort-feasors have contributed to the accident by their negligence or not and therefore, the appellants would be liable to satisfy the entire claim of the claimants. According to the learned Counsel, it was for the appellants as joint tort-feasors to recover the proportionate amount due from the other joint tort-feasors by initiating appropriate proceedings, but the claimants would be entitled to recover the whole amount awarded from the appellants and, therefore, there is no merit in the submission of the learned Counsel for the appellants. In support of his submission, Mr. Mehta, placed reliance on the decisions rendered in the cases of (1) Hiraben Bhaga v. G.S.R.T. Corporation, reported in 1982(1) GLR 190, (2) Life Insurance Corporation of India and Anr. v. Heirs and Legal Representatives of deceased Naranbhai Munjabhai Vadhia and Ors., 1972 GLR 920 and (3) Gujarat State Road Transport Corporation v. Gurunath Shahu and Ors., 1989 ACJ 314.

(3.) It is well settled that where two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required for each tort-feasor is liable for damage which he caused. Persons are not joint tort-feasors merely because their independent wrongful acts have resulted in one damnum. Where damage is caused as the result of torts committed by two or more tort-feasors, the tort-feasors may be (i) joint tort-feasors, (ii) several tort-feasors causing the same damage or (iii) several tort-feasors causing different damage. Who, then, are joint tort-feasors ? One way of answering the question is to see whether the cause of action against each tort-feasor is the same. If the same evidence would support an action against each, they are joint tort-feasors. Wrong-doers are deemed to be joint tort-feasors where cause of action against each of them is same, viz., that the same evidence would support action against them individually. They will be jointly liable for a tort which they both commit or for the commission of which they are both responsible and not for a tort where each is responsible for a different injuria and the two injuria happen to produce the same damnum. All persons who aid or counsel, direct or join in committal of a wrongful act, are joint tort-feasors. Normally, joint liability arises under three circumstances : (i) Agency, when one person employs another to do an act which turns out to be a tort, (ii) Vicarious liability, i.e., the liability arising from relationship such as master and servant, principal and agent, guardian and ward etc. and (iii) Joint action where two or more persons combine together to commit an act which amounts to a tort. Persons are said to be joint tort-feasors when their separate shares in the commission of an act are done in furtherance of a common design. Joint tort-feasors are jointly and severally liable for the whole damage resulting from the tort. They may be sued jointly or severally. If sued jointly, damage may be levied from all or either. Where a person is injured without any negligence on his part but as a result of the combined negligence of two drivers of the colliding vehicles, it is not a case of contributory negligence but a case of what has been described by Pallock as "injury by composite negligence." In a suit for "composite negligence" meaning thereby negligence of two or more persons other than the victim of the negligence, 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, he 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 in the whole more than his whole damage. He has a right to recover the full amount of damage from any of the joint tort-feasors. Those who are sued cannot insist on having the others being joined as defendants because the liability of the joint tort-feasors is joint and several.