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U.P.S.R.T.C. versus SMT. RAJNI & OTHERS

High Court of Judicature at Allahabad

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U.P.S.R.T.C. v. Smt. Rajni & Others - FIRST APPEAL FROM ORDER No. 832 of 1992 [2007] RD-AH 4742 (16 March 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

First Appeal From Order No. 832 of 1992

U.P. State Road Transport Corporation, Ghaziabad........Respondent-

       Appellant.

Versus.

Smt. Rajani and others.. . . . . . . . . . . . . . . . . . . . . . . . . . .Respondents.

-----------

Hon'ble V.M. Sahai, J.

Hon'ble Sabhajeet Yadav, J.

This First Appeal From Order has been filed under section 173 of Motor Vehicle Act 1988 against the judgment and award dated 17.4.1992 passed by Motor Accident Claims Tribuhnal, Bulandshahr in M.A.C. Case No. 149 of 1988 Smt. Rajani and others Vs. U.P. State Road Transport Corporation and others, whereby the claim petition was allowed and a sum of Rs. 2,97,100/- was awarded as compensation along with 6% simple annual interest thereon from the date of filing claim petition to the date of actual payment. While awarding said compensation, although O.P. No. 1 and 3 (before Tribunal) were held liable for payment of compensation to the claimants to the extent of 50% each and were held jointly and severally liable for payment of aforesaid compensation, but it was further held that claimants shall be entitled to recover the said amount of compensation either jointly from O.P. No. 1 and 3 before Tribunal i.e. U.P. State Road Transport Corporation and owner of the car or severally from any one of them, hence this appeal by U.P.S.R.T.C..

2. The facts leading to the case in brief are that the deceased Surendra Kumar Garg was travelling in Car No. DBA 1695, from Aligarh to Delhi on 22.9.1988 and when the car reached Sikandrabad road district Bulandshahr at about 9 A.M. a Bus No. U.G.U. 7164, which was coming from Sikandrabad, dashed against the car due to which Surendra Kumar Garg received serious injuries and died before reaching hospital. The widow of the deceased Smt. Rajani, his son Nitin Garg and daughter Kumari Neha Garg filed a claim petition before the Motor Accident Claim Tribunal, Bulandshahr claiming compensation Rs. 17,24,000/-. The claim petition was not contested by Sri Sarvjit Singh the owner of the Car No. DBA 1695 despite having being impleaded as party in the claim petition. The U.P. Road Transport Corporation filed a written statement that the car had over taken tempo wrongly due to which the driver of the car lost his balance and the accident took place. The driver of the car had hit the bus while it was standing. On the pleadings of the parties the Motor Accident Claim Tribunal framed various issues. One of the issues before the Motor Accident Claim Tribunal was as to whether the accident took place due to rash and negligent driving of the driver of the bus. The finding has been recorded that there was contributory negligence of both the drivers of Car No. DBA 1695 and Bus No. U.G.U. 7164 belonging to U.P. State Road Transport Corporation, therefore, they were held liable to the damage caused to the extent of 50% each. On the question of quantum of compensation the Tribunal had recorded finding that at the time of accident deceased Surendra Kumar Garg was aged 31 years 5 months. In the post mortem report the age of deceased was shown as 30 years. The deceased was working in Bakhtawar Singh Bal Kishan and Company as Accounts Officer and his monthly salary was Rs. 3230/-, which was proved by the widow of the deceased. After deducting 1/3rd expenses of the deceased himself, the Tribunal has found the dependency to be Rs. 2150/- per month. The tribunal had applied a multiplier of 15 and found that the amount of compensation to which claimants were entitled was Rs. 3,87,000/-. Thereafter 20% deduction was made towards the uncertainties of life and tribunal has held that the total compensation payable to the claimant-respondents was Rs. 3,09,600/- and Rs.12,500/- had already been paid to the claimant-respondents under Section 140 of Motor Vehicle Act, therefore, the total amount payable to the claimant-respondents was Rs.2,97,100/-. It appears that the claimants were satisfied with the quantum of compensation, therefore, they did not prefer any appeal for enhancement of such compensation.

3. We have heard Sri Samir Sharma, learned counsel for the appellant and Sri C.S. Chaturvedi, learned counsel appearing for the claimants-respondents No. 1,2 and 3. Respondent no. 4 is proforma respondent. Sri C.B. Yadav appearing for respondent no.5 did not appear though his name was printed in cause list and case was taken in revised list.

4. Sri Samir Sharma, learned counsel for the appellant has submitted that since the tribunal had recorded a finding on the issue that the accident took place due to composite negligence of Car No. DBA 1695 and Bus No. U.G.U. 7164 both, therefore, owners of both the vehicles are liable to pay compensation to the extent of 50% each but while making direction for payment of such compensation the tribunal went wrong and further held that claimants shall be entitled to recover entire amount of compensation either jointly from O.P. No. 1 and 3 before tribunal or from any one of them severally. In this connection learned counsel for the appellant has urged that in given facts and circumstances of the case, the driver of the bus and appellant as the owner of the bus could not be held to be joint tortfeasor so as to become jointly and severally liable for the damage caused instead thereof at the most could be held liable to the extent of negligence contributed to the damage caused severally or separately and further urged that in the wake of express statutory provisions contained in the Motor Vehicle Act (old and new both), the concept of Law of torts and common law stand automatically excluded and have no application at all in given facts and circumstances of the case. In support of his submission learned counsel for appellant has placed strong reliance upon the minority view of Full Bench decision of Karnataka High Court rendered in Ganesh Vs. Syed Munned Ahmad 1999 (3) T.A.C. 367, wherein Hon'ble Justice G.C. Bharuka while delivering minority judgement has placed reliance upon a Division Bench decision of same High Court rendered in Karnataka State Road Transport Corporation Vs. Reny Mammen I.L.R. 1990 Kar. 3181, and held that in case of claim for compensation for death or injury caused by motor accident on account of rash or negligent driving of more than one motor vehicle by drivers of those vehicles the tribunal should award compensation against each set of drivers, owners or insurers separately proportionate to their negligence, after apportioning liability between the drivers, owners or insurers of each of the vehicle involved in the accident. Mr. Sharma urged that the view taken by Hon'ble Mr. Justice Bharuka in the aforesaid decision is quite in consonance of the scheme underlying the statutory provisions of Motor Vehicle Act,  the claims tribunal is under statutory duty to specify the amount which shall be paid by insurers or owners or drivers of the vehicles involved in the accident or by all or any of them as case may be as contemplated by Section 110-B of Old Motor Vehicle Act and corresponding provisions contained under Section 168(1) of New Motor Vehicle Act 1988, whereas learned counsel for the claimant-respondents has vehemently urged that aforesaid Division Bench decision of Karnataka High Court relied upon in the Minority judgement of aforesaid Full Bench has already been overruled by the Full Bench itself in the majority opinion, therefore, no reliance can be placed thereon. However, the decision rendered in Reny Mammen's case does not lay down the correct law and is opposed to the view taken by this court and several other High Courts.

5. Now in view of aforesaid submission of learned counsel for the parties a precise question which falls for our consideration is:

(1) Whether in case of a motor accident caused due to composite negligence of the drivers of two or more vehicles, the person who is injured or legal representatives of the deceased in such an accident are entitled to claim the entire amount of compensation from all or any of the drivers, owners or insurers of the vehicles involved in the accident;

or

Whether in such a case, the injured or legal representatives of the deceased can recover only that part of the compensation from each set of driver, owner or insurer which is proportionate to the quantum of negligence of that driver, which contributed to the accident?  

6. This question has come up for consideration before a Full Bench of Karnataka High Court in Ganesh Vs. Syed Munned Ahmad's case (supra). Hon'ble Justice Mr. G.C. Bharuka has delivered minority judgement, whereas Hon'ble Mr. Justice P. Vishwanatha Shetty has delivered majority judgement with which Hon'ble Mr. Justice V. Gopala Gowda has accorded concurrence, but for the sake of convenience we will first deal with the decision rendered by Hon'ble Justice Mr. G.C. Bharuka (minority judgement) upon which the learned counsel for appellant has laid much emphasis in his arguments.

7. The facts leading to the aforesaid case were that the accident in question took place because of a collusion between two trucks and the appellant was victim who had sustained certain injuries while travelling in one of the aforesaid truck, Tribunal while awarding compensation a sum of Rs. 35,000/- with 6% per annum interest thereon from the date of filing of the petition till the date of deposit directed the owner of truck in which the appellant was travelling to pay 70% compensation and the owner and insurer of another truck to pay remaining 30% compensation after apportioning the negligence of two drivers of respective truck that is why the aforesaid question cropped up before the Full Bench of Karnataka High Court on a reference made by Division Bench of the aforesaid High Court.

8. Hon'ble Justice Mr. G.C. Bharuka after having noticed some authorities on the question in issue has also discussed the proposition of law contained in various authoritative books of law of torts in para 16,17,18,19 and 20 of the decision as under:

"16. In the Law of Torts by Ratanlal and Dhirajlal, 21st Edition 1987 which is one of the authorities cited in Reny Mammen's case at page 455 the position of law in a case of composite negligence is stated as hereunder:

".....Where injury is caused by the wrongful act of two parties, 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, the plaintiff 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 on the whole more than his whole damage. He has a right to recover the full amount of damages from any of the defendants."

17. In Charlesworth on Negligence by R.A. Percy, which is the other authority cited in the above Reny Mammen's case at page 889 the position of law where several independent tort-feasors cause the same damage to the plaintiff, has been dealt with as hereunder:  

"Situations can arise where two or more wrong doers have committed torts which have caused damage to a plaintiff and these are : (1) Where the wrong-doers are joint tort-feasors, (2) where they are several independent tort-feasors causing the same damage to him, and (3) Where they are several independent tort-feasors but cause different damage to him. In this latter instance, each wrong-doer is liable only for that part of the damage caused by him, whilst if one of a number of joint tort-feasors or one of the several tort-feasors causing the same damage is sued alone, then subject to any right he may have to contribution from the other tort-feasors, he is liable for the whole of the damage, even though he may have been responsible merely for just a small part of it."

18. It has further been noticed by the Division Bench that in Reny Mammen's case only a portion under the heading ''Joint Tort-feasors' in Winfield and Jolowies on Tort has been quoted, but in the same book dealing with the law relating to joint tort-feasors and several tort-feasors at page 581 it has been stated as under:-

"....Where two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries no special ruled are required, for each tort-feasors is liable for the damage which he has caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury, the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, which means that special rules are necessary to deal with the possibilities of successive actions in respect of the loss and the claims for contribution or indemnity by one tort-feasor against the others. It is greatly to the plaintiff's advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. The question of whether there is one injury seems to be approached in a fairy pragmatic way. The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous. Thus if D1 driving too fast in icy conditions causes his lorry to "jack-knife" across the motor way and D2 also driving too fast, later comes along and trying to avoid the obstruction runs down P assisting at the scene, both D1 and D2 are liable for P's injuries. If however P's car had been damaged by a collision with D1's lorry before the arrival of D2 on the scene then D1 alone would be responsible for that loss. By statute, though not at common law, one defendant may recover a contribution or indemnity from any other defendant liable in respect of the same damage, but that is a matter between the defendants and does not affect the plaintiff who remains entitled to recover his whole loss from whichever defendant he chooses."

19. In Clerk and Lindsell on Torts, 14th Edition at page 112 under the heading ''Joint and Several Torts' I find the following statement of law :

"Where damage is caused as the result of torts committed by two or more tort-feasors the tort-feasors may be (1) joint tort-feasors, (2) several tort-feasors causing the same damage, or (3) several tort-feasors causing different damage. If one of a number of joint tort-feasors, for of several tort-feasors causing the same damage, is sued alone he is liable for the whole damage, though he did but a small part of it. In the case of several tort-feasors causing different damage. On the other hand, each is liable only for the damage which he has caused."

20. In Salmond on Torts, 15th Edition at page 593, it is stated as hereunder:

".....If a number of persons jointly participate in the commission of a tort, each is responsible, jointly with each and all of the others, and also severally, for the whole amount of the damage caused by the tort, irrespective of the extent of his participation". That is to say, the person injured may sue any one of them separately for the full amount of the loss; or he may sue all of hem jointly in the same action, and even in this latter case, the judgment so obtained against all of them may be executed in full against any one of them. If the tort-feasors where independent or separate "the person damnified might sue them one by one and recover from one alone or from such as he chose to execute judgment against, provided that he did not recover more than the greatest sum awarded or against any defendant, more than was awarded in the action against him."

9. In para 24 of the decision His Lordship Mr. Bharuka (J) has traced out source of Common Law from Black's Law Dictionary as under:

"24. In Black's Law Dictionary (5th edition), the source and import of Common Law has been traced as under :-

Common Law--As distinguished from law created by the enactment of Legislatures, the common law comprises the body of those principles and rules of action, relating to the Government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the Courts recognizing, affirming and enforcing such usages and customs; and in this sense, particularly the ancient unwritten Law of England."

10. In para 27 and 28 of the decision His Lordship Mr. Justice Bharuka has quoted two authorities of the Hon'ble Apex Court wherein the Apex Court has held that application of English Common Law shall be selective in India and came to be applied wherever they are called upon to award damage or compensation for civil wrongs committed by the defendants in the suits, unless particular statute expressly or by necessary implication or intendment excludes, the common law rule, the latter must prevail, therefore, it is necessary to examine the Act and the Rules to ascertain whether there is any indication therein that the intention of Legislature is to exclude the common law rule.

11. The observations of Hon'ble Apex Court extracted in para 27 and 28 of the decision are as under :

"27. In the case of Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and another, AIR 1987 SC 1690 Para 4, it has been held by the Supreme Court as well that:--

"On account of the close association which came to be established between India and Great Britain owing to the British rule which lasted for over two centuries, in the High Courts established in India the English Common Law which was based on principles of justice, equity and good conscience came to be applied wherever they were called upon to award damage or compensation for civil wrongs committed by the defendants in the suits. The application of the English Common Law however, had to conform to Indian circumstances and conditions which necessarily involved a selective application of the English Law in India."

28. In the case of Commissioner of Agricultural Income Tax, West Bengal V. Keshab Chandra Mandal, AIR 1950 SC 265 Para 14 it has been held that:--

   "There is no doubt that the true rule as laid down in judicial decisions and indeed as recognised by the High Court in the case before us is that unless a particular statute expressly or by necessary implication or intendment excludes, the common law rule, the latter must prevail. It is, therefore, necessary in this case to examine the Act and the rules to ascertain whether there is any indication therein that the intention of the Legislature is to exclude the common law rule."

12. Thereafter Hon'ble Mr. Bharuka (J) has examined the provisions of  Sections 110 to 110-F of Old Motor Vehicle Act and Rules framed by State Government of Karnataka under Section 111-A of Act in para 38 and 39 of the decision as under:

" 38. From the above provisions, it is clear that for adjudication of the claim for compensation, either all the claimants should join hands or they should be impleaded as respondents. This provision has been obviously made to avoid multiplicity of proceedings concerning the same death or bodily injury or damage to the some property. The provisions further show that the Parliament has not left it open to the applicant/claimant to implead one or the other tort-feasor may be joint, several or composite and to keep others away from the adjudicating process. Because, even in the case of accident involving more than one vehicle, he has to necessarily disclose the registration number of all such vehicles as also the names of owners and insurers thereof. Further, on receipt of application in Form 82 referred to above, as required under Rule 346 of the ''State Rules', it will be the duty of the Tribunal to send a notice on the date on which it will hear the application affording them an opportunity to adduce evidence in support of their defence. This is further clear from Section 110-C of the Act in sub-section (2-A) whereof it has been made mandatory on the part of the Tribunal to necessarily implead insurer in case it finds collusion between the person making claim and the person against whom the claim is made or in case the latter abstains from contesting the claim.

39. Therefore, a bare reading of the present statutory provisions clearly demonstrates that the same has been articulated by the Legislature itself in such a manner that the claimant, even if he so wants and at the detriment of one or the other tort-feasor, cannot be permitted to wield the sword of his discretion to proceed against a particular tort-feasor to suit his convenience or connivance. Consequently, it has to be held that for adjudicating the claim for compensation under the provisions of the Act, all claimants and all the tort-feasors including their insurers, have to be necessarily made parties before the Claims Tribunal for determination of their respective rights and liabilities. If, despite notice one opts to keep away, he will be doing so at his own peril, risking an adverse order against him. This view has been taken by me on a pure interpretation of statutory provisions, the scheme inherent therein and the governing public policy namely avoidance of multiple litigation/proceedings for the same cause and expeditious disposal of compensation claims in presence of all concerned. "

13. In para 43, 44, 45, 46 and 47 of the decision Hon'ble Justice Bharuka proceeded to deal with the provisions of Section 110-B of Old Motor Vehicle Act as under:

"43.  Next coming to the powers and duties of the Tribunal as embodied under Section 110-B of the Act, the same becomes glaring on reading of the said section itself which is to the following effect--

110-B. Award of the Claims Tribunal--On receipt of an application for compensation made under Section 110-A, the Claims Tribunal shall after giving the parties an opportunity of being heard hold an inquiry into the claim or, as the case may be, each of the claims and subject to the provisions of Section 109-B, may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.

***   *** ***

44. Section 110-B as quoted above, mandates the Tribunal for making an award which should contain the following :--

(i) the amount of compensation which appears to it to be just;

(ii) specification of person/persons to whom compensation has to be paid; and

(iii) specification of the amounts which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or anyh of them as the case may be.

45. The aforesaid specification have to be made by the Tribunal as provided in Section 110-B of the Act, after giving all the parties an opportunity of hearing by issuing notice to them in terms of Rule 346 of the "State Rules".

46. So far as the determination of the amount of compensation is concerned, the same has to be determined on the basis of the issues framed by the Tribunal under Rule 356 of the State rules. Similarly, the Tribunal has to necessarily specify the person or persons to whom the compensation will be payable, which will include the quantification of amounts payable to them.

47. Now, I come to the third mandate against the Tribunal in making the award which is more material for the present purpose. This requirement (in case of more than one tort-feasor) mandates the Tribunal to specify the amount which will have to be paid by the insurers or owners or drivers of the vehicles involved in the accident or by all or any of them as the case may be. The provision has been made by the Legislature keeping in mind that any accident involving more than one vehicle, either the drivers of the vehicles and consequently their owners may be found liable for compensation and therefore insurers subject to existence of insurance policy and the conditions embodied therein may or may not be liable and if liable what will be the extent of liability."

14. Ultimately His Lordship Mr. Justice Bharuka has analysed the provisions of Sections 110-E and 110-F of the Act and given his concluded opinion in para 49, 50, 51 and 52 of the decision as under:

"49. Section 110-F of the Act as noticed above clearly provides that after constitution of the Claims Tribunal under Section 110 of the Act, no Civil Court has jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Tribunal. Under Section 110-B of the Act as discussed above, the Tribunal while disposing of an application for compensation filed by a claimant has a duty to specify the amount which shall be paid by the insurer, owner or driver of the vehicle involved in the accident either jointly or severally depending on the facts found by the Tribunal on the basis of the evidence brought before it. Therefore, the extent of liability of the insurer, driver or owner of the each vehicle has to be determined and specified by the Tribunal. For specification of respective liability of the tort-feasors, the Tribunal has to frame an issue and decide the same after hearing the claimant as well as the respective tort-feasor. That being so, the decision on this aspect will be a question relating to any claim for compensation which the Tribunal will be duty-bound to adjudicate upon. As such, no action for ascertainment of contribution of the respective tort-feasors or for recovery of their share of compensation can be brought before the Civil Court.

50. Apart from above the separate tort-feasors cannot even at a subsequent stage file any application before the Tribunal for apportioning the compensation amongst them based on their contribution to the damage caused or for recovery thereof from any of them. The irresistible conclusion therefor is that all the questions regarding quantification of compensation to which the claimant is entitled and in case of more than one tort-feasor, may be joint/several/composite, the extent of their liability, based on the extent of their negligence in contributing to common damage, has to be adjudicated and decided by the Tribunal in the same proceeding initiated on the basis of the application filed under Section 110-A of the Act.

51. Now, coming to the right of recovery of the claim, Section 110-E as extracted above clearly provides that in case a person is held liable to pay any part of the compensation, then the claimant, to the extent of his entitlement, can make an application for issuance of certificate for recovery of the amount to the Collector so that it can be recovered as arrears of land revenue. Therefore, under the scheme of the Act, claimant can proceed to recover from any person only that amount in terms of money as has been determined to be payable by him and falling due for recovery from him. The law does not permit the claimant to recover the entire amount of compensation at his option and choose from any of particular tort-feasor, out of several tort-feasors, despite the fact that the Tribunal does not hold them jointly and severally liable.

52. For the aforesaid reasons, I find myself in absolute agreement with the view taken by the Division Bench of this Court in Reny Mammen's case (supra) and hold that in the case of a motor vehicle accident caused due to composite negligence of the drivers of two or more vehicles, the person who is injured or the legal representatives of a deceased can recover only that part of compensation from each set of driver, owner or insurer which is proportionate to the quantum of negligence of that driver, who contributed to the accident."

 

15. Now coming to the majority judgement delivered by Hon'ble Justice Mr. P. Vishwanath Shetty with which Hon'ble Mr. Justice V. Gopala Gowda has concurred, it appears that after referring and having discussed several decisions of same and other High Courts and analysing the porposition of law of torts under common law in para 14 of the decision observed as under:

"14. .......The Law of Torts under common law stated by various Authors referred to above, makes it clear that in case, an accident is caused on account of the negligence of the drivers of two vehicles or in other words, in case of joint tort-feasors, the liability of the said joint tort-feasors is both joint and several and it is open to the victim of the accident or the legal representative of the victim of the accident in the case of death, to proceed against any one of the joint tort-feasors or against both of them. The view taken by the Division Bench of this Court in Reny Mammen's case (supra) that in a case where an accident is caused on account of the negligence of the drivers of two vehicles, it must be treated as a case of several tort-feasors and therefore, it is not permissible for the claimant to proceed against them either jointly or severally, to my mind, does not appear to be the correct view to be taken in a matter like this. It is well settled that in a civil remedy claiming damages, the intention of the parties for causing damage is not relevant. The fact that a driver of a vehicle drives the vehicle in a rash and negligent manner itself is sufficient to take a view that he is expected to know the consequences of his rash and negligent driving of the vehicle and the injury or the harm which he is likely to cause to the others who use the highway or happen to be close to the highway. Under these circumstances, if the drivers of both the vehicles, on account of their rash and negligent driving, are the cause for the accident and as a result of it, damage is caused to a third-party, the liability of each of the joint tort-feasors cannot be limited insofar as the victim of the accident is concerned on the ground that they must be treated as several tort-feasors and their liability must be limited tothe proportionate or to the extent of negligence. In Reny Mammen's case (supra), the Division Bench of this Court, to come to its conclusion, strongly relied upon the decision of the Single Judge of the Assam High Court in the case of Drupad Kumar Barua V. Assam State Transport Corporation and others, 1980 ACJ 46 wherein the Assam High Court explained the law relating to tort-feasors as follows:

"The law relating to joint tort-feasors may thus be explained by stating that except in case of agency or vicarious liability or imposition of joint duty, the tort-feasors must act in furtherance of common design or concerted action to a common end to be regarded as joint tort-feasor would be one who acts as stated in Section 34, Indian Penal Code in furtherance of the common intention or in prosecution of the common object of which mention has been made in Section 149, Indian Panel Code.

In the present case, none of the aforesaid elements is present. Two drivers cannot, therefore, be regarded as joint tort-feasors but they are in law several tort-feasors. So far as the acts of one, the other cannot be held liable jointly or severally."

After noticing the said observations, the Division Bench in Reny Mammen's case has observed thus:

"As held in the above judgment, in order to make two or more persons joint tort-feasors, what is necessary is that they should have acted in a concerned (concerted?) manner or in co-operation which resulted in a common dammum. It is true, intention on the part of them to cause damage to another is unnecessary, for, in such a case, it would become an offence under the Panel Code and for a tort, i.e., a civil wrong, intention is irrelevant. Intention to act in a particular manner on the part of more than one person, resulting in an unintended injury to a third-party makes all of them joint tort-feasor. Instead if by mere coincidence of independent acts or negligence of more than one person damage is caused to a third person, they are several tort-feasor and their liability to third person is several in proportion to their fault."

With great respect to the Hon'ble Judges, I am unable to subscribe to the said view. In a simple case, where the accident is caused on account of the rash and negligent driving on the part of the drivers of two vehicles, they cannot be treated as several tort-feasor only on the ground that the accident in question though is the result of combined action of driving the vehicles by both the drivers in a rash and negligent manner, since they did not act in furtherance of common design or concerted action to a common end, which is the requirement of criminal law to treat certain persons as joint tort-feasor. In my view, the requirement of criminal law to treat such persons as joint tort-feasors, cannot be made as the basis or a principle underlying to come to the conclusion that the drivers of two vehicles, who have caused the accident on account of their rash and negligent driving, are not joint tort-feasor, but they must be treated as only several tort-feasor and, therefore, their liability to third person is several in proportionate their fault. In my considered opinion, while the liability of the joint tort-feasor inter se amongst them must be held to be proportionate to the extent of their negligence, insofar as the claimant who is the victim of the accident or the legal representatives of the deceased in an accident is concerned, it is joint and several. Further, in addition to the two Division Bench decisions in the case of Shivarudrappa (supra) and in the case of Ram Bai (supra), referred to by me above, the view I have expressed above is also supported by the Division Bench decisions of this court in the case of Lakshamamma and others V. C. Das and others, 1985 ACJ 199 and the case of United India Fire and General Insurance Company V. U.E. Prasad and others, 1985 ACJ 280 and also in the case of K. Narayana Karanth V. Shankar Vittal Motor Company Limited and others (supra). The Division Bench of this Court (Sabhajit and Rajashekhara Murthy,JJ) in the cases Lakshmamma (supra) and U.E. Prasad (supra) and the learned Single Judge (Tukoi,J) in the case of K. Narayana Karanth (supra) have taken the view that if the accident is caused on account of the negligence of the drivers of two vehicles, such an accident is a result of composite negligence of drivers of both the vehicles and in such circumstances, the claimant can proceed against any joint tort-feasor or against all. In the case of U.E. Prasad (supra), at paragraph-2, the Division Bench has observed thus :

"The learned Counsel appearing for the appellant submitted that since the Tribunal held that both the drivers of the auto and car were responsible for causing the accident, the Tribunal ought to have apportioned the liability between the two vehicles. He contended that the Insurance Company of the auto could not be liable to pay the entire compensation jointly and severally along with the other respondents. This submission was repelled by the learned Counsel appearing for the claimant. He submitted that the accident was the result of composite negligence and not contributory negligence. The person who was injured was a person in the auto. The evidence of the petitioner shows that both the vehicles were being driven at a very fast speed and that is the cause of the accident. That being so, it is true that the accident was the result of composite negligence of both the drivers of the auto of the car. In the case of composite negligence the claimant can proceed against any joint tort-feasors or against all of them as they are jointly and severally liable. The Tribunal has given joint and several liability, which, in our opinion, is just and proper."

I am also supported by the Division Bench decisions of the Allahabad High Court in case of Raghib Nasim and another V. Naseem Ahmad and others, 1986 ACJ 405 and in the case of U.P. State Road Transport Corporationand another V. Bittan Devi and others, 1988 ACJ 291, the Division Bench decision of the Kerala High Court in the case of United India Insurance Company Limited V. Premakumaran and others, 1988 ACJ 597 and in the case of United India Fire and General Insurance Company Limited V. Varghese and others, 1989 ACJ 472,  the Division Bench decision of the High Court of Punjab and Haryana in the case of Secretary, Ministry of Communications, Government of India, New Delhi V. Amar Kaur and others, 1989 ACJ 82, the Division Bench decision of the Rajasthan High Court in the case of National Insurance Company Limited and others V. Kastoori Devi and others, 1988 ACJ 8  and in the case of Sampat Kunwar Bai and another V. Gurmeet Singh and another, 1988 ACJ 342, the decision of Orissa High Court in the case of Bhuban Chandra Dutta Gupta V. G.M., Orissa State Road Transport Corporation and others, 1985 ACJ 228 also support the view I have expressed above."

16. Thereafter in para 16 of the judgement His Lordship Mr. Justice Shetty has formulated a question and in para 17 of the decision the said question was answered as under:

"16. Now, the only other question that requires to be considered in the light of the view expressed by this Court in the case of Reny Mammen's case (supra), is whether the statutory provisions contained in paragraph-7 of the Act more particularly, Sections 110-A, 110-B and 110-F and the Rules have in any manner modified or altered the common law doctrine relating to the liability of joint tort-feasors to answer the claim of the third parties?

It is well settled that if the statutory provision has the effect of modifying or altering the common law principle, the statutory provision will prevail and will have to be given effect to and required to be followed by Courts while adjudicating the rights of the parties. In this connection, it may be useful to refer to the decision of the Supreme Court inthe case of the Commissioner of Agricultural Income Tax, West Bengal V. Kehsab Chandra Mandal, AIR 1950 SC 265 wherein at paragraph-14, the Supreme Court has observed:--quoted already in preceding part of the judgment.

Therefore, as noticed by me earlier, the question that would really arise for consideration is whether the statutory provision in the Act and the Rules framed thereunder, over-ride the common law liability of joint tort-feasors who have caused an accident on account of their composite negligence, and as such; they are liable only to the proportion or to an extent of their negligence while paying compensation to the victim of the accident or the legal representatives of the deceased in an accident in the case of death.  

17. Having carefully considered the Division Bench decision of this Court in Reny Mammen's case (supra) and the judgment of my learned Brother Justice Bharuka; and also in the light of the language employed in the various statutory provisions of the Act and the Rules framed thereunder, referred to above, I am unable to subscribe to the view that the statutory provisions contained in the Act and the Rules framed thereunder, have in any manner modified or altered the Law of Torts under common law relating to composite negligence."

17. Aforesaid conclusion drawn by Hon'ble Mr. Justice Shetty has been supported by reasons given in para 18 and 19 of the decision as under :

"18. Section 110 of the Act (Section 165 of the 1988 Act) provides for the constitution of the Motor Accidents Claims Tribunal, Section 110-A of the Act (Section 166 of the 1988 Act) provides for an application being filed claiming compensation arising out of an accident of the nature specified in Section 110 of the Act before the Tribunal. Section 110-B of the Act (Section 168(1) of the 1988 Act) provides for two parts. The first part provides that after following certain procedures, the Tribunal shall "make an award, determine the amount of compensation which appears to be just, and specify the person or persons to whom compensation shall be paid". The second part of Section 110-B provides for specification of the amount payable by the insurer or the owner or driver of the vehicle involved in the accident or by all or any one of them, as the case may be Section 110-F of the Act (which is incorporated in Section 175 of the Act of 1988) bars the jurisdiction of the Civil Court to entertain any question relating to any claim for compensation, it may be adjudicated upon by the Claims Tribunal. The combined reading of Sections 110 and 110-F of the Act makes it clear that subsequent to coming into force of the Act, it is only the Tribunals which are constituted under Section 110 of the Act, which are conferred with the jurisdiction of settling the disputes relating to claim for compensation on account of the injuries sustained by the claimant or the compensation for the death of a victim of the motor accident, by his legal representatives. From a reading of the several provisions in Chapter VIII of the Act, it is clear that one of the objects of the Act among other things, is to provide for speedy and efficacious remedy through the Tribunal and to ensure payment of compensation to the victims of the accident. This is clear from Section 94 of the Act which provides that no person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless that vehicle is covered by a policy of insurance. In this background, the provisions contained in Section 110-B of the Act and Rule 345 of the Rules, relied upon by the Division Bench in the case of Reny Mammen (supra) have to be examined to consider whether the said provisions have the effect of taking away or in any manner modify the common law principle relating to Law of Torts with regard to the right of a victim of a motor accident in respect of the accident on account of the composite negligence by the drivers of two or more vehicles. A reading of Section 110-B of the Act, to my mind, appears that the said Section is a provision made for providing procedure to be followed by the Tribunals which we required to be followed on the applications being filed by the claimants seeking compensation. Sub-section (1) of Section 110-B referred to in Reny Mammen's case (supra) to come to the conclusion that the victim of a motor accident in the case of composite negligence can claim compensation only to the proportion of the negligence of the drivers, no doubt, provides that the Tribunal while making the award is required to specify the amount which is required to be paid by the Insurer, owner or the driver of the vehicle involved in the accident or by all or any one of them, as the case may be. The mandate contained in sub-section (1) of Section 110-B requiring the Tribunal to specify the amount which is required to be paid by the Insurer, owner or driver of the vehicle involved in the accident, or by all or any of them, as the case may be, cannot be understood or interpreted to mean that the right of the claimant to proceed against one of the joint tort-feasors in the case of composite negligence is taken away or in any manner modified or altered. The purport of the said provision, to my mind, it appears, is an obligation imposed on the Tribunal while passing the award depending upon the facts and circumstances of the case and availability of the joint tort-feasors, and the joint tort-feasors having been made as a party to the proceeding, to fix the liability with reference to the proportion of the negligence contributed by them for the accident. The said provision, in my view, is only intended to the extent possible, to avoid multiplicity of proceedings inter se between the drivers, owners and insurers of the two vehicles and to the extent possible to give a finality to their liability. That does not mean that the said provisions should be understood as taking away the common law rights, which have been hitherto enjoined by the victims of motor accidents and which are being followed by various Courts in the country. Insofar as the victim of the accident, who is injured or the legal representatives of a victim of an accident, who dies in an accident, is concerned, it is not possible to assess the gravity of the injury caused or the contribution made by one of the joint tort-feasors either for the injury caused or for the death of a victim of an accident though the Court can assess the percentage of the negligence on the part of each of the joint tort-feasors which has caused the accident. The assessment of the percentage of negligence which has caused the accident by each of the joint tort-feasors is quite distinct and separate from the assessment of the percentage of the gravity of the impact or the contribution made for the injury suffered by a victim of the accident or for the death cased in the accident. As observed by me earlier, the gravity or impact of the vehicle to a third party, who sustains an injury in the accident or on account of such injury, who succumbs to death, cannot be assessed. The percentage of negligence of the drivers is a matter inter se between the drivers, owners and insurers of the two vehicles."

19. In my view, the same is the position from the reading of Rule 345 of the rules, referred to in Reny Mammen's case (supra). Rule 343 of the rules, extracted above, only provides for filing of the application in Form No. 82 appended to the Rules and requires to be accompanied by the Court fee and the application has to be presented before the Tribunal. No doubt, Columns 14, 15 and 16 of Form No. 82 require the claimants to mention the Registration Number and the type of the vehicle involved in the accident; name and address of the owner of the vehicle and the name and address of the Insurer of the vehicle. From that alone, it is not possible to come to the conclusion that the drivers of the two vehicles were either several tort-feasors as observed by the Division Bench of this Court in Reny Mammen's case (supra) or the liability of the joint tort-feasors is required to be apportioned by the Tribunal proportionate to the percentage of the negligence contributed by each of the tort-feasors and the claimant is entitled to claim compensation only to the extent of contribution of negligence by each of the joint tort-feasors, who have caused the accident."

18. In para 20 of the decision His Lordship Mr. Justice Shetty has referred the decision of Hon'ble Apex Court rendered in Karnataka State Road Transport Corporation Vs. K.V. Sakeena and others, 1996 (3) SCC 446 and held that the decision has no bearing to the question in controversy involved in the said appeal. For ready reference para 20 of the decision is reproduced as under :

"20. Now, the only other aspect of the matter which may have to be referred to is whether the observations made by the Supreme Court in the case of Karnatak State Road Transport Corporation V. K.V. Sakeena and others, 1996(3) SCC 446 would in any manner indicate that the liability of the joint tort-feasors in a composite negligence is only proportionate to the extent of their negligence insofar as the claimant is concerned. In my view, in the said case, the Supreme Court did not consider the question whether the liability of the joint tort-feasors in a case of composite negligence is either joint and several or only limited to the proportion to the extent of their negligence. The only question that was considered by the Supreme Court in that case was whether the driver of the Truck-Trailer was also negligent or not? The Supreme Court, after analysing the evidence on record, had come to the conclusion that the driver of the Truck-Trailer was also negligent and the proportion of the negligence of the driver of the bus and the driver of the Truck-Trailer was determined at 60% and 40% respectively, and in the light of that conclusion, the Supreme Court has held that the owner, driver and insurer of the Truck-Trailer are liable jointly and severally, to pay 40% of the compensation. Therefore, I am of the view that the decision of the Supreme Court in the case of Karnataka State Road Transport Corporation Vs. K.V. Sakeena and others has no bearing to decide the question which arises for consideration in this appeal."

19. In para 21 of the decision His Lordship Mr. Justice Shetty has given further reasons for disagreement with Hon'ble Mr. Justice Bharuka and in para 22 of the decision overruled Reny Mammen's case and approved other two decisions of Karnataka High Court mentioned therein as under:

"21. Before concluding, it is useful to refer to one other reason given by this Court in Reny Mammen's case (supra) to take the view that the liability of the owners, drivers and insurer of the two vehicles must be limited to the proportion to the extent of their negligence, is that otherwise there is scope for the claimant conniving with one of the private owners of the vehicle, who was responsible for the cause of the accident and leaving him out from his liability to pay compensation. With great respect, I find it unable to subscribe to this view. It is not possible to assume that all the claimants are dishonest and likely to connive with one of the joint feasors. The exceptions cannot be taken cognizance of while deciding the legal position. If the said reasoning has to be put against the claimants, the same reasoning can be put against the owners, drivers and insurers of the vehicle, who may also connive with and show the finger of negligence at the person who has no capacity to reimburse the liability of the claimant. In this context, it is also necessary to point out that most of the victims of the motor accidents generally belong to lower state (strata?) of the society, who are either poor, illiterate or agricultural labourers, who are either pedestrains on the road or Cyclists or passenger, who travel in the transport services or the labourers, who travel in the goods vehicles accompanying goods etc. In this background, if their claim is to be considered it is needless to observe that they are very much handicapped and unevenly placed as against the owners of the vehicles and their insurers. It is also necessary to notice that in a case of death, the legal heirs of the deceased, on many occasions, are at a great disadvantage. The information of the material they secure may only point out in the case of composite negligence that the driver of one of the vehicles was only negligent and on that basis they may institute proceedings in good faith only against such driver, The owner and also the insurer of the said vehicle. Under these circumstances, no motives can be imputed to such claimants for not making (liable) the drivers, owners or insurers of both the vehicles. In such situation, if it is the case of the driver, owner and insurer of the vehicle, who is sued that he is either not negligent or the accident in question had occurred on account of the negligence on the part of the drivers of both the vehicles, to seek for impleading of the driver, owner and insurer of such other vehicle. The driver, owner and insurer of a vehicle, whether it be a transport vehicle or a private cab, they are certainly better placed and have better facilities and financial support to take effective steps to furnish the name and address and details regarding the contributory negligence on the part of the driver of such vehicle. If such a request is made, the Tribunal, in the light of the mandate contained in Section 110-B of the Act, which provides for inquiry being held into the claim made by a claimant and determination of quantum of compensation which appears to be just, and also which provides for specification of the quantum of compensation payable by the drivers, owners and insurers of the vehicles and also in terms of Rule 346 of the rules, will have to issue notice to such a joint tort-feasor and implead him as a party to the proceedings and dispose of the matter. In this situation, there is absolutely no injustice caused to any one and more so, to one of the joint tort-feasors. If what I have indicated above is followed, the would not be any scope for multiplicity of proceedings as the rights of the parties will be settled once for all in one proceedings itself. Further, since Section 110-F of the Act takes away the jurisdiction of the Civil Court to entertain any question relating to any claim for compensation, which may be adjudicated upon by the Claims Tribunal, once the liability of the joint tort-feasors is fixed proportionate to the extent of negligence caused by each of the joint tort-feasors, it is open to the joint tort-feasors, who satisfy the award when their liability is made joint and several to proceed against the other joint tort-feasors to recover the balance amount in terms of the award passed in the same proceedings. It is open to the Tribunal while passing the award, to make the said position clear when both the joint tort-feasors are made as parties to the proceedings. In cases where both the joint tort-feasors are not made as parties to the proceedings, such of the joint tort-feasor, i.e., driver, owner and insurer of the vehicle, who satisfies the award, can continue the same proceedings by impleading the driver, owner and insurer of the other vehicle, which has caused the accident on account of the negligence of the driver of the said vehicle. This procedure, in my view, is permissible in proper understanding of Section 110-F of the Act and it would also observe the very object of Chapter VIII of the Act which intends to give expeditious and effective relief to the victims of the motor accidents or the legal representatives of the persons who are killed in such accidents.

22. In the light of the discussion made above, I am of the view that the Division Bench decision of this Court in the case of Karnataka State Road Transport Corporation Vs. Reny Mammen's (supra) does not lay down the correct law. The decisions of this Court in the case A. Shivarudrappa Vs. General Manager, Mysore Road Transport Corporation and the case of Ram Bai Vs. Mukunda Kamath and also in the case of K. Narayana Karanth Vs. Shankar Vittal Motor Company Limited and others lay down the correct law. I am in respectful agreement with the view expressed by this Court in the case of Shivarudrappa (supra) and also in the said decisions.

20. In para 23 of the decision His Lordship Mr. Justice Shetty has answered the question referred by Division Bench as under :

"23. Therefore, in conclusion, insofar as the first question referred to the Full Bench by the Division Bench is concerned, my answer is that in the case of a motor vehicle accident caused due to the composite negligence of the drives of two or more vehicles, the person who is injured or the legal representatives of a person who is killed in such an accident, are entitled to claim the entire compensation from all or any of the drivers, owners and insurers of the vehicle."

21. We have carefully examined the Full Bench decision of Karnataka High Court in Ganesh's Case (supra). We find that majority view taken by Hon'ble Justice P. Vishwanath Shetty and Hon'ble Justice V. Gopala Gowada, that where an accident caused on account of negligence of drivers of two vehicles or in other words in case of joint tort-feasors the liability of said joint tort-feasors is both joint and several and it is always open to the victim of accident or the legal representative of the victim of the accident in case of death to proceed against any one of joint tort-feasors for whole damage or against both of them, is quite in consonance with the law of torts, under common law stated by various authors and is also supported by several decisions of aforesaid High Court and other High Courts including this court as indicated in para 14 and 15 of the decision. Therefore, it would be useful to refer some of the aforesaid decisions hereinafter.

22. In the case of United India Insurance Company Limited Vs. Premakumaran, 1988 ACJ 597, the Kerala High Court has at paragraphs 41 and 42 observed thus:

"We have found that the accident happened as a result of the negligence of the driver of the bus and also due to the failure of the Railway administration to give protection and precaution at the railway level crossing. This is a case where the incident happened as a result of the composite negligence of the driver of the bus and the Railway administration. In such circumstances, the claimants are entitled to recover the entire amount from any of the joint tort-feasors and there could be one decree against all of them. This view has been expressed by some of the authors on the Law of Torts. In Anand & Sastri's Law of Torts, 4th Edition, at page 727, it is said that where an injury has been occasioned by the wrongful act of two parties, the plaintiff is not required to strictly analyse proximate or immediate cause of the event so as to find out whom he could sue. The plaintiff may 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."

23. In the case of Raghib Nasim and another Vs. Naseem Ahmad and others, 1986 ACJ 405, at paragraph-11, the Allahabad High Court has observed thus:

"When a person is injured without any negligence on his part but as a result of negligence on the part of another person or due to the combined negligence of two persons, it is not a case of contributory negligence. The question of ''contributory negligence' arises in a case where the injured or the deceased had contributed to the accident. In a case of composite negligence, the person wronged has a choice of proceeding against all or any one or more than one of the wrong-doers. Every wrong-doer is liable for the whole damages if it is otherwise made out. The law in this regard has been laid down by Pollock in Torts, Fifteenth Edition, as under:

Where negligent acts of two or more independent persons have between them caused damage to a third-party, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled of course, within the limits set out of the 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 these persons though in any case he cannot recover in the whole more than his whole damage."

24. The Allahabad High Court in the case of U.P. State Road Transport Corporation and another Vs. Bittan Devi and others, 1988 ACJ 291 at paragraphs 12,13 and 14 has observed thus:

"Counsel for the Corporation argued that the accident was the result of the composite negligence of the truck driver and the driver of the bus..... when the accident occurs and the injuries flow without any negligence on the part of the claimant, but as a result of the negligence on the part of the two persons it is case which is described as a case of composite negligence.

"Where negligence Acts of two or more independent persons have between them caused damage to a third-party, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set out by the general rules as to remoteness of damages 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 these persons though in any case he cannot recover on the whole more than his whole damage."

Since this was a case of composite negligence, the respondents had a right under the law to sue the Corporation for the compensation for what had been suffered by them. The liability of the truck and the bus was joint and several. This being the position, the respondents could choose either of the two or prefer claim against both. In this view of the matter, although we have differed from the finding of the Claims Tribunal that the accident took place due to the sole negligence of the bus driver but that does not make out any case to reverse its judgment. The accident even it was due to the negligence of both, the liability of the Corporation would not vanish, extinguish or diminish."

25. The Rajasthan High Court in the case of National Insurance Company LImited and others Vs. Kastoori Devi and others, 1988 ACJ 8 at paragraphs 13 and 14, has observed thus:

"It was contended by the learned Counsel for both the Insurance Companies that apportionment should be made in the liability of both the Insurance Companies according to the proportion of negligence of the two vehicles. It has been further submitted that when the liability is imposed jointly and severally, it remains in the discretion of the claimants to realise the amount from any of the Insurance Companies and this causes a prejudice to that Insurance Company from which the entire amount of compensation is raised.

We see no force in this contention. It has been laid down in plethora of cases of this Court as well as other High Courts that in a case of composite negligence, there is no method or indicia to bifurcate or apportion the liability and the only course open in such cases can be to make them both liable as jointly or severally. So far as the claimants are concerned, they can realise the amount from any one of the Insurance Companies and then the Insurance Company, which pays the entire amount, can take steps for recovering half of the amount from the other Insurance Company."

26. In case of United India Fire and General Insurance Company Limited Vs. Varghese and others, 1989 ACJ 472 at paragraph 6, the Kerala High Court has observed as hereunder:

"In a case of composite negligence, the injured has the option to proceed against all or any one of the joint tort-feasor. He can, therefore, enforce his claim for compensation impleading only one of the joint tort-feasor. It cannot be a defence, in such an action, for the defendant to contend that the other joint tort-feasors have not been made parties and therefore the action is not sustainable. He may have the right to seek contribution from the other joint tort-feasors have not been made parties and therefore the action is not sustainable. He may have the right to seek contribution from the other joint tort-feasor for any amount which he pays in excess of his liability. The liability of the joint tort-feasor being joint and several, the action against one of the many cannot be effectively resisted as unsustainable. The injured may sue against all or any of the negligent persons. It is not the concern of his whether there is any duty of contribution or indemnity as between those persons though he may not be able to recover, on the whole, more than his own damage by successive actions against different tort-feasor. The principle is well settled that "if one of the number of joint tort-feasor or of several tort-feasor causing the same damage is alone sued, he is liable for the whole damage, though he did but a small part of it." The recovery of damages against one of a number of tort-feasor may operate as a bar to any further action against the other even if the judgment remained unsatisfied."

27. Thus in view of aforestated legal position, we respectfully agree with the majority view taken by Full Bench of Karnataka High Court in Ganesh's case (supra) and hold that when a person is injured without any negligence on his part but as a result of negligence on the part of another person or due to the combined negligence of two persons, it is not case of contributory negligence. The question of contributory negligence arises in a case where the injured or deceased had contributed to the accident. In case of composite negligence, the person wronged has a choice of proceeding against all or any one or more than one of the wrong doers, every wrong doer is liable for the whole damage if it is otherwise made out. Where negligent acts of two or more independent persons have caused a damage to a third party, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set out by general rules as to remoteness of damage to sue all or any one of the negligent person. It is no concern of his whether there is any duty of contribution or indemnity as between these persons though in any case he can not recover in the whole more than his whole damage as held by this court in Raghib Nasim's case (supra) and Bittan Devi's case (supra).

28. Now coming to another question whether the statutory provisions contained in Sections 110-A, 110-B and 110-F under Old Motor Vehicle Act and Rules framed thereunder, have in any manner modified or altered the common law doctrine relating to liability of joint tort-feasors to answer the claim of third parties, we are in full agreement with the view taken by majority Judges of Full Bench in Ganesh's case (supra) holding that in a case of motor vehicle accident caused due to composite negligence of drivers of two or more vehicles, the person who is injured or the legal representative of the person who is killed in such an accident are entitled to claim entire compensation from all or any of the drivers, owners or insurers of the motor vehicle irrespective of the aforesaid statutory provisions contained under Old Motor Vehicle Act and such provisions contained under Sections 166, 168(1) and 175 of New Motor Vehicle Act. In our opinion, the aforesaid statutory provisions have no effect of altering, modifying or excluding the common law doctrine relating to the liability of joint tort-feasors contained in law of torts for the aforestated reasons.

29. The majority view taken by aforesaid Full Bench of Karnataka High Court in Ganesh's case (supra) further fortified by another subsequent Full Bench of same High Court in Karnataka State Road Transport Corporation Vs. Arun 2004 A.C.J. 249, wherein a reference was made before the Full Bench while doubting the correctness of decision in Ganesh Vs. Syed Munned Ahmad's case that the Full Bench did not consider certain questions formulated in para 3 of the decision as under:

"3. When these appeals along with connected appeals were posted for hearing, the Division Bench referred the matter on 18.7.2003 as it felt that the Full Bench decision of this court in Ganesh Vs. Syed Munned Ahamed, 2000 ACJ 1463 (Karnataka), did not consider the following questions:

"(1) If the proceedings are finally determined with an award made by the Tribunal and disposed of in some cases by the appeal against the same by the High Court, does the Tribunal not become functus officio for making any further proceedings like impleading the tort-feasor or initiating action against him legally impermissible?

(2) What is the remedy of a tortfeasor who has satisfied the award, but who does not know the particulars of the vehicle which was responsible for the accident?"

In the instant case, the particulars of lorry that was partly responsible for the accident causing injuries are known neither to the appellant Corporation nor to the injured-claimant and hence, the Division Bench referred the question for consideration whether in the case of an accident arising out of composite negligence causing death or physical injury to the third party, the amount determined by the Tribunal can be recovered from any one of the joint tort-feasors; if so, whether the tortfeasor who satisfies the award has any remedy in law against the other tortfeasor and whether such remedy becomes extinct if the other tortfeasor is unknown. Accordingly, as stated these appeal are before this Bench."

30. While dealing with the aforesaid questions the Hon'ble Full Bench of Karnataka High Court in Arun's case after having placed reliance upon some decisions of different High Courts in para 10,11 and 12 of the decision held as under:

"10. The question as to whether claimant is liable to implead both joint tortfeasors where he has suffered injury due to composite negligence of two vehicles had come up for consideration of this court in A Shivarudrappa Vs. General Manager, Mysore Road Trans. Corpn., 1973 ACJ 302 (Mysore). In the said case, as in the present case, a passenger travelling in bus sustained injury due to collision of bus with a lorry and claim petition was filed against Mysore State Road Transport Corporation only and driver, owner and insurer were not impleaded. The Tribunal held that there was no negligence on the part of the driver of bus and driver and owner of the lorry were not parties to the petition and hence, the claimant was not entitled to compensation quantified at Rs. 2,000 in the said case. In appeal by claimant, a Division Bench of this court reversed the order of the learned Tribunal by holding that the accident occurred due to negligent driving of both the vehicles and it was a case of composite negligence and liability of tort-feasors was joint and several and hence notwithstanding none-impleading of driver and owner of lorry, the claimant was entitled to full compensation quantified by the Tribunal. Same view has been taken by Division Bench of Gujarat High Court in Hiraben Bhaga Vs. Gujarat State Road Trans. Corpn., 1982 ACJ (Supp) 414 (Gujarat), on similar facts and it is observed as follows:

"(4) The second error which the Tribunal committed is of deducting 50 percent for the contributory negligence of the jeep driver which he assessed at 50 percent, that is to say to an equal extent. It passes one's understanding as to how could a passenger's compensation be deducted on account of the contributory negligence of the driver of a vehicle. It is entirely the choice of the claimants whether to implead both the joint tort-feasors or either of them. The claimants cannot be saddled with the liability for contributory negligence of one of the joint tortfeasors, if they fail to implead him as one of the opponents, in their claim petition. It would be for the impleaded joint tortfeasors to take proceedings to get the other joint tortfeasors impleaded in the claim petition, or for that matter such an impleaded joint tortfeasor may select to sue the other one after the decree or award is given and the other joint tortfeasor is held liable therein."

The above view has been reiterated by Division Bench decision of Delhi High Court in Om Wati (since deceased) through L.Rs. Vs. MOhd. Din, 2002 ACJ 868(Delhi).

11. In view of the aforesaid reasoning and decisions of Supreme Court, we have no hesitation to hold that where a claim petition is filed by the injured or the legal representatives of the deceased due to injury or death arising out of use of motor vehicles due to composite negligence of drivers of the two vehicles, the claimant can recover compensation from any one of the joint tortfeasors and the just compensation to which he is entitled cannot be reduced for non-impleading of the other joint tortfeasors and, therefore, the decision of the Full Bench in Ganesh's case, 2000 ACJ 1463 (Karnataka), in this behalf does not require any reconsideration.

12. The next point to be considered is about the rights and remedy of the joint tortfeasor who satisfies the award. It is clear from the provisions of Section 175 of the Act that where Claims Tribunal has been established for any area, no civil court shall have jurisdiction to entertain any question which may be adjudicated upon by the Tribunal. Section 168 of the Act enables the Tribunal to make an award determining the amount of compensation which appears to it to be just and to specify the person or persons to whom compensation shall be paid and in making the award Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Section 174 of the Act provides that where any amount is due from any person under an award, Claims Tribunal may on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner, as arrears of land revenue. In view of our finding that the claimant can proceed against either or both of the joint tortfeasors where both the joint tortfeasors are parties, if the claimant proceeds against any one of the joint tort-feasors, one joint tortfeasor having satisfied the award, can proceed to recover the amount held to be payable by the other tortfeasor under the same award in accordance with Section 174 of the Act. However, where the claimant has filed a petition against one of the joint tortfeasors without impleading the other tortfeasor, to do which he is entitled to, the joint tortfeasor is bound to satisfy the award and negligence of the other tortfeasor, cannot be a defence to reduce compensation payable to the claimant. So far as the claimant is concerned, his claim cannot be defeated or reduced due to non-impleading of other tortfeasor. The apportionment of negligence or blameworthiness between two joint tortfeasors would arise only when both are parties to the petition. If other joint tortfeasor is not made a party, it is always open to the impleaded respondents to get impleaded other joint tortfeasors so that their respective blameworthiness can be apportioned so as to enable them to claim contribution from the other if the claimant chooses to proceed to recover the amount awarded from one of them only. It is well settled that in the absence of both the joint tortfeasors, it would not be appropriate to apportion negligence or blameworthiness as the said finding would not be binding on the other joint tortfeasor, who is not a party to the proceedings and courts and Tribunals should not pass judgment or order, which cannot be executed. However, the only joint tortfeasor, who is made a party to the petition and satisfies the award cannot be said to be without any remedy. It is open to him to claim contribution from the other joint tortfeasor to the extent of his blameworthiness. The Full Bench in Ganesh's case, 2000 ACJ 1463 (Karnataka), has suggested as follows:

"......In cases where both the joint tort-feasors are not made as parties to the proceedings, such of the joint tortfeasor, i.e., driver, owner and insurer of the vehicle, who satisfies the award, can continue the same proceedings by impleading the driver, owner and insurer of the other vehicle, which has caused the accident on account of the negligence of the driver of the said vehicle. This procedure, in my view, is permissible in proper understanding of Section 110-F of the Act, and it would also subserve the very object of Chapter VIII of the Act which intends to give expeditious and effective relief to the victims of the motor accidents or the legal representatives of the persons who are killed in such accidents."

31. Thereafter aforesaid Full Bench of Karnataka High Court has placed reliance upon the decision of Hon'ble Apex Court rendered in United India Insurance Co. Ltd. Vs. Lehru and others, 2003 ACJ 611 (SC) = A.I.R. 2003 S.C. 1292 and found out object behind establishment of claims tribunal and compulsory insurance of motor vehicles in para 13 of decision and ultimately given its concluded opinion in para 14 of the decision as under :

"14. In view of the above discussion, we answer the referred question by holding that the Full Bench decision in Ganesh's case, 2000 ACJ 1463 (Karnataka), does not require any reconsideration. It is seen that in an accident case, generally the insurance company is liable to pay compensation as per the terms of the policy. But, when the accident is on account of composite negligence of two or more vehicles, the claimant is entitled to proceed against any of the tortfeasors for full compensation for the injuries suffered or the death caused, as the liability is joint and several. The question of apportionment does not arise, if the other joint tortfeasor has not been impleaded as party. However, after ascertaining and impleading the other joint tortfeasor as a party, the tortfeasor can exercise his right of contribution in accordance with law. In other words, when the other joint tortfeasor is not a party, the Tribunal should refrain from giving any finding about apportionment of negligence, in the absence of other tortfeasor, to avoid any exercise in futility and leave the said question of liability of joint tortfeasors to be adjudicated, if the joint tortfeasor who satisfies the award is able to find out the name of the other joint tortfeasor and seeks to exercise right of contribution in accordance with law."

32. In view of aforesaid discussions, there can be no scope for doubt to hold that when an accident takes place on account of composite negligence of two or more motor vehicles, the claimant is entitled to proceed against all or any of the joint tort-feasors for full compensation for the injuries suffered or death caused as the liability of joint tort-feasors is joint and several. The question of apportionment of negligence and liability to pay compensation does not arise if other joint tort-feasor has not been impleaded as party. However after ascertaining other joint tort-feasor and impleading as a party the tort-feasor who satisfied the award can exercise his right of contribution in accordance with law. In other words when other joint tort-feasor is not a party, the tribunal should refrain from giving any finding about apportionment of negligence in absence of other tort-feasor to avoid any exercise in futility and leave the said question of liability of joint tort-feasors to be adjudicated, if the joint tort-feasor, who satisfied the award is able to find out the name and address of other joint tort-feasor and seek to exercise his right of contribution in accordance with law. In a case, where all the joint tort-feasors have been brought on record, it is needless to say that tribunal is under statutory duty to specify the amount which shall be paid by driver or owner or insurer of the vehicles involved in the accident. As per Section 13 (2) of the General Clauses Act 1897 in all Central Acts including Rules framed thereunder, the words in singular shall include the plural and vice-versa. Therefore, the words and expression, namely, vehicle, driver, claimant and insurer used in Sections 110 to 110-F of Old Act and the Rules and corresponding provisions of Sections 165 to 175 contained in Chapter XII of New Act, will in case of accident involving more than one vehicle has to be read as vehicles, claimants, drivers, owners and insurers. The apportionment of liability amongst the individual joint tort-feasors has to be done by tribunal to the extent of their negligence contributed to the damage caused to the victim of the accident thus in case of insurers to the extent of their liability covered by insurance policy or under statute. The said provision, in our view, is only intended to the extent possible, to avoid multiplicity of proceedings inter se between the drivers, owners and insurers of the two vehicles and to the extent possible to give a finality to their liability. That does not mean that the said provisions should be understood as taking away the common law rights, which have been enjoined by the victims of motor accidents and which are being followed by various Courts in the country and stood at the test of time. Insofar as the victim of the accident, who is injured or the legal representatives of a victim of an accident, who dies in an accident, is concerned, in the words Hon'ble Shetty (J) in Ganesh's case (supra), it is not possible to assess the gravity of the injury caused or the contribution made by one of the joint tort-feasors either for the injury caused or for the death of a victim of an accident though the Court can assess the percentage of the negligence on the part of each of the joint tort-feasors which has caused the accident. The assessment of the percentage of negligence which has caused the accident by each of the joint tort-feasors is quite distinct and separate from the assessment of the percentage of the gravity of the impact or the contribution made for the injury suffered by a victim of the accident or for the death cased in the accident. We are also of the opinion that the gravity of impact of the vehicle to a third party, who sustains an injury in the accident or on account of such injury, who succumbs to death, cannot be assessed. The percentage of negligence of the drivers is a matter inter se between the drivers, owners and insurers of the two vehicles.

33. Besides this, such duty to apportionment of individual liability of joint tort-feasors under the provisions of Section 110-B of Old Motor Vehicle Act and Section 168(1) of New Motor Vehicle Act does not necessarily lead to a conclusion that tribunal cannot direct any one of such joint tort-feasors to satisfy entire award by making payment to the claimants and thereafter realise the amount excess paid by him over and above from his liability from the other joint tort-feasors, to the extent of their liability determined by the tribunal, thus in case of an accident caused by composite negligence of two motor vehicles, where one vehicle is insured and another is not covered by valid insurance policy and both are impleaded as party and also heard, it is open to the tribunal after specifying their respective liability to the extent of damage contributed, direct the owner or insurer of vehicle insured to pay entire amount of award to the claimants and recover the excess amount so paid over and above his or its liability from the owner or driver of the another vehicle involved in such accident. The other view contrary to it expressed in minority judgement by Hon'ble Justice Bharuka in Ganesh's case (supra) would be too technical and pedantic. Therefore, having regard to the aims and object of the Act behind the establishment of tribunals and compulsory insurance of the Motor Vehicles, the view taken by us would be more plausible and pragmatic suiting to the condition of our society, even if the view taken by Hon'ble Bharuka (J) is also to be one of the possible view in the matter.

34. The view taken by us also finds support from the recent pronouncement of the Hon'ble Apex Court in United India Insurance Co. Ltd. Vs. Lehru's case (supra) wherein in para 13 of the decision while interpreting the provisions of Section 94 of Old Motor Vehicle Act Hon'ble Apex Court has observed that the provision has been inserted in order to protect the members of community travelling in vehicles or using the roads from the risk attendant upon the user of the motor vehicles on the roads, the law may provides for the compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependants of victim of fatal accident, however such protection would remain on paper unless there is guarantee that compensation awarded by the courts would be recoverable from the persons held liable for the consequences of the accident. A court can only pass an award or decree. It cannot insure that such an award or decree results in the amount awarded being actually recovered from the person held liable who may not have resources. The exercise undertaken by the law courts would then be an exercise in futility and the out come of legal proceeding which by very nature of the things involve the time cost and money cost invested from the scarce resources of the community would make mockery of the injured victims or the dependant of the deceased victim of an accident, who themselves are obliged to incur in considerable expenditure of time, money and energy in litigation. To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. The Hon'ble Apex Court has observed that the obligation has not been imposed in order to promote the business of the insurers engaged in the business of automobile insurance. Such benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles notwithstanding the attendant hazards has become an inescapable fact of life, has to be interpreted in a meaningful manner which serve rather than defeats the purpose of legislation. In para 14 of the said decision Hon'ble Apex Court has further observed that when option is between opting for a view which will relieve the distress and misery of the victim of accident or their dependants on one hand and the equally plausible view which will reduce the profitability of the insurers in the business undertaken by them, there is hardly any choice. The court cannot but opt for the former view. In para 15 of the decision Hon'ble Apex Court went on saying that it need not be pointed out that whole concept of getting vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants otherwise in normal course they had to peruse their claim against the owner from one forum to the other and ultimately to execute the order of the accident claims tribunal for realization of such amount by sale of the properties of the owner of the vehicle. The procedure of execution of decree is well known.

35. Thus in view of the aforesaid discussions, it is categorically clear that very purpose and object behind the establishment of claims tribunal is to determine just compensation to the victims or legal representatives of deceased in Motor Vehicle Accident and to provide speedy and expeditious forum to the claimants for adjudication of their claims. And whole purpose of compulsory insurance of motor vehicle in respect of third party risk, under Section 94 of the Old Motor Vehicle Act and corresponding provisions of Section 146 of New Motor Vehicle Act is to ensure an easy mode for payment of compensation to the victims of motor accidents. It is not meant to promote the business of insurers engaged in the business of insurance of motor vehicles. Therefore, we have no hesitation to hold that while directing the payment of compensation to the victims or legal representatives of deceased of motor accident arise out of composite negligence of two motor vehicles it is duty of claims tribunal to apportion and specify the respective liability of owners or drivers or insurers of vehicles involved in the accident to extent of damage contributed by them provided they are impleaded and heard by tribunal and further to explore the feasibility as to how the easy payment of such compensation can be made to the victims or legal representative of deceased victims of motor accident. In this connection it is needless to say that the vehicles covered by valid insurance policy or owned by Government or Corporation like U.P.S.R.T.C. can be directed to make payment of entire amount of compensation and thereafter realise from owner of another vehicle involved in the accident caused due to composite negligence of two vehicles.

36. In such facts and circumstances of the case, we find no error in judgment and order of tribunal whereby after specifying the liability of making payment of compensation to the extent of 50% each between the owners of car and bus of U.P.S.R.T.C., the tribunal has further held that it is open for the claimants either recover entire amount of compensation jointly from O.P. No. 1 and 3 before claims tribunal or from any one of them. Therefore, such findings of claims tribunal cannot be found faulty rather we are in full agreement to the aforesaid view taken by tribunal. In given facts and circumstances of the case, tribunal ought to have directed the corporation to make payment of entire amount of compensation to the claimants, and thereafter realise such excess payment over and above from its liability from the owner of car involved in aforesaid accident. It is needless to say that payment of entire amount of said compensation to the claimants who are legal representative of deceased victim of motor accident could easily be made by the corporation, as the name of insurer of the car involved in the accident could not be ascertained and owner of car despite having being impleaded as party did not contest before the tribunal and award against him was made ex-parte. Accordingly appeal is liable to be dismissed.

37. Thus the instant appeal stands dismissed.

Dt.16.3.07

LJ/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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