The law in the case of an accident arising out of composite
negligence has been considered by a 3 Judges’ bench of this Court in
Khenyei v. New India Assurance Co. Ltd. & Ors. (AIR 2015 SC 2261)
wherein following propositions have been laid down :
“(i) In the case of composite negligence,
plaintiff/claimant is entitled to sue both or any one
of the joint tort feasors and to recover the entire
compensation as liability of joint tort feasors is
joint and several.
(ii) In the case of composite negligence,
apportionment of compensation between two tort
feasors vis a vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them.
(iii) In case all the joint tort feasors have been
impleaded and evidence is sufficient, it is open to
the court/tribunal to determine inter se extent of
composite negligence of the drivers. However,
determination of the extent of negligence between
the joint tort feasors is only for the purpose of their
inter se liability so that one may recover the sum
from the other after making whole of payment to
the plaintiff/claimant to the extent it has satisfied
the liability of the other. In case both of them have
been impleaded and the apportionment/ extent of
their negligence has been determined by the
court/tribunal, in main case one joint tort feasor
can recover the amount from the other in the
execution proceedings.
(iv) It would not be appropriate for the
court/tribunal to determine the extent of composite
negligence of the drivers of two vehicles in the
absence of impleadment of other joint tort feasors.
In such a case, impleaded joint tort feasor should
be left, in case he so desires, to sue the other joint
tort feasor in independent proceedings after
passing of the decree or award.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8879 OF 2015
[Arising out of SLP [C] No.24685/2013]
Kamlesh & Ors. … Appellants
Vs.
Attar Singh & Ors. … Respondents
Dated;October 27, 2015
2. The appeal has been preferred by the claimants aggrieved by
the dismissal of their claim petition and setting aside award passed by
the Motor Accidents Claims Tribunal, Sonepat on 5.8.2005 in Claim
Petition No.217/2002/2004 by the High Court of Punjab & Haryana at
Chandigarh vide judgment and order dated 4.9.2009 in
3. The claimants Kamlesh, widow of deceased Rishi Parkash,
three minor sons and mother of the deceased filed a claim petition as
against the driver, owner and insurer of Maruti Car No.DL4CC -5172
and driver of three-wheeler Tempo No.HRH-3572. The compensation
of Rs.12 lakhs was prayed on account of the death of Rishi Parkash in
the accident dated 8.5.2003 caused due to the collision between
Maruti car and tempo. Maruti car was driven by Rajinder Singh
whereas the tempo was driven by Attar Singh, respondent No.4.
Deceased Rishi Parkash was travelling in the tempo towards village
Naina Tatarpur. As per the claimant Attar Singh was driving the tempo
on his right side at a normal speed in due observance of the traffic
rules. When he reached about 1.5 km. from Barwashni towards
Gohana, Maruti car came from the opposite side and struck the tempo
inbetween near footstep as a result of which Rishi Parkash received
injuries and succumbed to them on the way to the hospital.
Postmortem was conducted. Respondent No.1 Rajinder filed an FIR
No.77 under section 279-304-A IPC against Attar Singh. Deceased
was aged 36 years and was working as a Supervisor in Emkay & Co.
He was receiving a salary of Rs.4,500 per month. Maruti car was
owned by Hukam Chand and insured with Oriental Insurance Co. Ltd.Page 3
3
4. The owner and driver of the Maruti car contended that the
accident was the outcome of rash and negligent driving of Attar Singh,
driver of the tempo. Police had found on due investigation that Attar
Singh was negligent. Chargesheet was also filed against Attar Singh.
The insurer in its separate written statement also contended that the
accident was due to rash and negligent driving of Attar Singh,
respondent No.4.
5. Attar Singh, respondent No.4, in his reply contended that Police
had fabricated the case against him in collusion with Rajinder Singh,
driver of the Maruti car. A criminal complaint has been filed by
respondent No.4 against Rajinder Singh, driver of Maruti Car before
the Additional Chief Judicial Magistrate, Sonepat for rash and
negligent driving.
6. Claims Tribunal came to the conclusion that Ram Parshad,
Claimant Witness PW-2 has admitted that after investigation Police
has found Attar Singh to be negligent and he was chargesheeted. Attar
Singh examined himself and his statement has not been relied upon
mainly on the ground that as he has admitted that he was facing
criminal trial. The Claims Tribunal found that Attar Singh driver of
the tempo, was negligent, determined the quantum of compensation atPage 4
4
Rs.5,81,000/- with interest at the rate of 6% per annum from the date
of filing application, liability to pay the same has been fastened upon
Attar Singh.
7. Aggrieved thereby Attar Singh preferred appeal before the High
Court. The High Court on the ground that in the claim petition the
negligence of Attar Singh has not been pleaded and the claimants have
relied upon the evidence of Ram Parshad PW2 and Devender PW3 to
prove the negligence of the driver of the Maruti car; whereas Rajinder
driver of the Maruti car had lodged the first information report. As the
claimants have not set up the case of negligence against Attar Singh.
As such the High Court has allowed the appeal filed by Attar Singh
driver of the tempo and has dismissed the claim petition. Aggrieved
thereby the appeal has been preferred by the claimants.
8. We have heard learned counsel for the parties and perused,
inter alia, the evidence on record of Ram Parshad PW2 and Devender
PW.3. The method and manner in which the accident has taken place
leaves no room for doubt that it was a case of composite negligence of
drivers of both the vehicles, that is the driver of Maruti car and driver
of tempo. Though Police has registered a case against driver of the
tempo Attar Singh and has filed a chargesheet but the same cannot be
said to be conclusive. Though, Attar Singh has stated that it was in
order to oblige the driver of the Maruti car, a case was registered
against him. Be that as it may. It appears both the drivers have tried
to save their liability. In such circumstances, the version of eyewitnesses,
PW.2 and PW.3 assumes significance. The fact remains that
car had dashed the tempo on the middle portion near footstep. Thus
the method and manner in which the accident has taken place leaves
no room for doubt that both the drivers were negligent. Man may lie
but the circumstances do not is the cardinal principle of evaluation of
evidence. No effort has been made by the High Court to appreciate the
evidence and method and manner in which the accident has taken
place. Both the aforesaid witnesses have stated Maruti Car was in
excessive speed. However, it appears driver of tempo also could not
remove his vehicle from the way of Maruti Car. Thus, both the
drivers were clearly negligent. It appears from the facts and
circumstances that both the drivers were equally responsible for the
accident. Thus, it was a case of composite negligence. Both the
drivers were joint ‘tort-feasors’, thus, liable to make payment of
compensation.
9. The law in the case of an accident arising out of composite
negligence has been considered by a 3 Judges’ bench of this Court in
Khenyei v. New India Assurance Co. Ltd. & Ors. (AIR 2015 SC 2261)
wherein following propositions have been laid down :
“(i) In the case of composite negligence,
plaintiff/claimant is entitled to sue both or any one
of the joint tort feasors and to recover the entire
compensation as liability of joint tort feasors is
joint and several.
(ii) In the case of composite negligence,
apportionment of compensation between two tort
feasors vis a vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them.
(iii) In case all the joint tort feasors have been
impleaded and evidence is sufficient, it is open to
the court/tribunal to determine inter se extent of
composite negligence of the drivers. However,
determination of the extent of negligence between
the joint tort feasors is only for the purpose of their
inter se liability so that one may recover the sum
from the other after making whole of payment to
the plaintiff/claimant to the extent it has satisfied
the liability of the other. In case both of them have
been impleaded and the apportionment/ extent of
their negligence has been determined by the
court/tribunal, in main case one joint tort feasor
can recover the amount from the other in the
execution proceedings.
(iv) It would not be appropriate for the
court/tribunal to determine the extent of composite
negligence of the drivers of two vehicles in the
absence of impleadment of other joint tort feasors.
In such a case, impleaded joint tort feasor should
be left, in case he so desires, to sue the other joint
tort feasor in independent proceedings after
passing of the decree or award.”
10. In view of the aforesaid, the amount determined/awarded by the
Claims Tribunal was Rs.5,81,000/- along with 6 per cent interest from
the date of filing of the petition till the date of realization of the
amount is upheld as no appeal for its enhancement was filed before
the High Court by the claimants. It would be open to the claimants to
recover the entire amount from any of the respondents, that is from
owner, driver and insurer of the Maruti car or respondent No.4, driver
of the tempo as their liability is joint and several with respect to
claimants. It would be open to the respondents to settle their inter se
liability as per the aforesaid decision of this Court. Appeal is allowed.
No order as to costs.
……………………..CJI.
(H.L. Dattu)
New Delhi; ………………………..J.
October 27, 2015. (Arun Mishra)
Print Page
negligence has been considered by a 3 Judges’ bench of this Court in
Khenyei v. New India Assurance Co. Ltd. & Ors. (AIR 2015 SC 2261)
wherein following propositions have been laid down :
“(i) In the case of composite negligence,
plaintiff/claimant is entitled to sue both or any one
of the joint tort feasors and to recover the entire
compensation as liability of joint tort feasors is
joint and several.
(ii) In the case of composite negligence,
apportionment of compensation between two tort
feasors vis a vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them.
(iii) In case all the joint tort feasors have been
impleaded and evidence is sufficient, it is open to
the court/tribunal to determine inter se extent of
composite negligence of the drivers. However,
determination of the extent of negligence between
the joint tort feasors is only for the purpose of their
inter se liability so that one may recover the sum
from the other after making whole of payment to
the plaintiff/claimant to the extent it has satisfied
the liability of the other. In case both of them have
been impleaded and the apportionment/ extent of
their negligence has been determined by the
court/tribunal, in main case one joint tort feasor
can recover the amount from the other in the
execution proceedings.
(iv) It would not be appropriate for the
court/tribunal to determine the extent of composite
negligence of the drivers of two vehicles in the
absence of impleadment of other joint tort feasors.
In such a case, impleaded joint tort feasor should
be left, in case he so desires, to sue the other joint
tort feasor in independent proceedings after
passing of the decree or award.”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8879 OF 2015
[Arising out of SLP [C] No.24685/2013]
Kamlesh & Ors. … Appellants
Vs.
Attar Singh & Ors. … Respondents
Dated;October 27, 2015
2. The appeal has been preferred by the claimants aggrieved by
the dismissal of their claim petition and setting aside award passed by
the Motor Accidents Claims Tribunal, Sonepat on 5.8.2005 in Claim
Petition No.217/2002/2004 by the High Court of Punjab & Haryana at
Chandigarh vide judgment and order dated 4.9.2009 in
3. The claimants Kamlesh, widow of deceased Rishi Parkash,
three minor sons and mother of the deceased filed a claim petition as
against the driver, owner and insurer of Maruti Car No.DL4CC -5172
and driver of three-wheeler Tempo No.HRH-3572. The compensation
of Rs.12 lakhs was prayed on account of the death of Rishi Parkash in
the accident dated 8.5.2003 caused due to the collision between
Maruti car and tempo. Maruti car was driven by Rajinder Singh
whereas the tempo was driven by Attar Singh, respondent No.4.
Deceased Rishi Parkash was travelling in the tempo towards village
Naina Tatarpur. As per the claimant Attar Singh was driving the tempo
on his right side at a normal speed in due observance of the traffic
rules. When he reached about 1.5 km. from Barwashni towards
Gohana, Maruti car came from the opposite side and struck the tempo
inbetween near footstep as a result of which Rishi Parkash received
injuries and succumbed to them on the way to the hospital.
Postmortem was conducted. Respondent No.1 Rajinder filed an FIR
No.77 under section 279-304-A IPC against Attar Singh. Deceased
was aged 36 years and was working as a Supervisor in Emkay & Co.
He was receiving a salary of Rs.4,500 per month. Maruti car was
owned by Hukam Chand and insured with Oriental Insurance Co. Ltd.Page 3
3
4. The owner and driver of the Maruti car contended that the
accident was the outcome of rash and negligent driving of Attar Singh,
driver of the tempo. Police had found on due investigation that Attar
Singh was negligent. Chargesheet was also filed against Attar Singh.
The insurer in its separate written statement also contended that the
accident was due to rash and negligent driving of Attar Singh,
respondent No.4.
5. Attar Singh, respondent No.4, in his reply contended that Police
had fabricated the case against him in collusion with Rajinder Singh,
driver of the Maruti car. A criminal complaint has been filed by
respondent No.4 against Rajinder Singh, driver of Maruti Car before
the Additional Chief Judicial Magistrate, Sonepat for rash and
negligent driving.
6. Claims Tribunal came to the conclusion that Ram Parshad,
Claimant Witness PW-2 has admitted that after investigation Police
has found Attar Singh to be negligent and he was chargesheeted. Attar
Singh examined himself and his statement has not been relied upon
mainly on the ground that as he has admitted that he was facing
criminal trial. The Claims Tribunal found that Attar Singh driver of
the tempo, was negligent, determined the quantum of compensation atPage 4
4
Rs.5,81,000/- with interest at the rate of 6% per annum from the date
of filing application, liability to pay the same has been fastened upon
Attar Singh.
7. Aggrieved thereby Attar Singh preferred appeal before the High
Court. The High Court on the ground that in the claim petition the
negligence of Attar Singh has not been pleaded and the claimants have
relied upon the evidence of Ram Parshad PW2 and Devender PW3 to
prove the negligence of the driver of the Maruti car; whereas Rajinder
driver of the Maruti car had lodged the first information report. As the
claimants have not set up the case of negligence against Attar Singh.
As such the High Court has allowed the appeal filed by Attar Singh
driver of the tempo and has dismissed the claim petition. Aggrieved
thereby the appeal has been preferred by the claimants.
8. We have heard learned counsel for the parties and perused,
inter alia, the evidence on record of Ram Parshad PW2 and Devender
PW.3. The method and manner in which the accident has taken place
leaves no room for doubt that it was a case of composite negligence of
drivers of both the vehicles, that is the driver of Maruti car and driver
of tempo. Though Police has registered a case against driver of the
tempo Attar Singh and has filed a chargesheet but the same cannot be
said to be conclusive. Though, Attar Singh has stated that it was in
order to oblige the driver of the Maruti car, a case was registered
against him. Be that as it may. It appears both the drivers have tried
to save their liability. In such circumstances, the version of eyewitnesses,
PW.2 and PW.3 assumes significance. The fact remains that
car had dashed the tempo on the middle portion near footstep. Thus
the method and manner in which the accident has taken place leaves
no room for doubt that both the drivers were negligent. Man may lie
but the circumstances do not is the cardinal principle of evaluation of
evidence. No effort has been made by the High Court to appreciate the
evidence and method and manner in which the accident has taken
place. Both the aforesaid witnesses have stated Maruti Car was in
excessive speed. However, it appears driver of tempo also could not
remove his vehicle from the way of Maruti Car. Thus, both the
drivers were clearly negligent. It appears from the facts and
circumstances that both the drivers were equally responsible for the
accident. Thus, it was a case of composite negligence. Both the
drivers were joint ‘tort-feasors’, thus, liable to make payment of
compensation.
9. The law in the case of an accident arising out of composite
negligence has been considered by a 3 Judges’ bench of this Court in
Khenyei v. New India Assurance Co. Ltd. & Ors. (AIR 2015 SC 2261)
wherein following propositions have been laid down :
“(i) In the case of composite negligence,
plaintiff/claimant is entitled to sue both or any one
of the joint tort feasors and to recover the entire
compensation as liability of joint tort feasors is
joint and several.
(ii) In the case of composite negligence,
apportionment of compensation between two tort
feasors vis a vis the plaintiff/claimant is not
permissible. He can recover at his option whole
damages from any of them.
(iii) In case all the joint tort feasors have been
impleaded and evidence is sufficient, it is open to
the court/tribunal to determine inter se extent of
composite negligence of the drivers. However,
determination of the extent of negligence between
the joint tort feasors is only for the purpose of their
inter se liability so that one may recover the sum
from the other after making whole of payment to
the plaintiff/claimant to the extent it has satisfied
the liability of the other. In case both of them have
been impleaded and the apportionment/ extent of
their negligence has been determined by the
court/tribunal, in main case one joint tort feasor
can recover the amount from the other in the
execution proceedings.
(iv) It would not be appropriate for the
court/tribunal to determine the extent of composite
negligence of the drivers of two vehicles in the
absence of impleadment of other joint tort feasors.
In such a case, impleaded joint tort feasor should
be left, in case he so desires, to sue the other joint
tort feasor in independent proceedings after
passing of the decree or award.”
10. In view of the aforesaid, the amount determined/awarded by the
Claims Tribunal was Rs.5,81,000/- along with 6 per cent interest from
the date of filing of the petition till the date of realization of the
amount is upheld as no appeal for its enhancement was filed before
the High Court by the claimants. It would be open to the claimants to
recover the entire amount from any of the respondents, that is from
owner, driver and insurer of the Maruti car or respondent No.4, driver
of the tempo as their liability is joint and several with respect to
claimants. It would be open to the respondents to settle their inter se
liability as per the aforesaid decision of this Court. Appeal is allowed.
No order as to costs.
……………………..CJI.
(H.L. Dattu)
New Delhi; ………………………..J.
October 27, 2015. (Arun Mishra)
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