M.A.C.A. No. 744 of 2005

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR** **& THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931** **MACA.No. 744 of 2005(D)** **---------------------------------OPMV.65/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** **....................** ## **APPELLANT(S): 2ND RESPONDENT** **-----------------------** **UNITED INDIA INSURANCE COMPANY LIMITED, PONKUNNAM, NOW REPRESENTED BY ITS MANAGER, THIRD PARTY CLAIMS CELL, M.G.ROAD, KOCHI-16.** **BY ADV.MR.P.JACOB MATHEW** ## **RESPONDENT(S): PETITIONERS AND RESPONDENTS 1,4&5** **-------------------------** **1. MARIAMMA GEORGE, W/O.M.P.GEORGE, MANAKUZHIYIL HOUSE, PANAMATTOM P.O.** **2. ELSAMMA GEORGE, D/O.M.P.GEORGE, DO. DO.** **3. VINCEY GEORGE, D/O.M.P.GEORGE, DO. DO.** **4. CHOICEY GEORGE, D/O.M.P.GEORGE,** - **DO. DO.** **5. JOICEY GEORGE, D/O.M.P.GEORGE,** - **DO. DO.** **6. BABY PHILIP, MANAKUZHIYIL HOUSE, PANAMATTOM P.O.** **7. M.N.JAYAPRAKASH, VAKKAYIL HOUSE, THEKKETHUKAVALA, CHIRAKKADAVU P.O.** ## **M.A.C.A. NO.744/2005** **8. P.A.SUKUMARAN NAIR, S/O.SANKARAN NAIR, KALLOLICKAL HOUSE, CHIRAKKADAVU P.O. (NO RELIEFS ARE CLAIMED AGAINST THE 3RD RESPONDENT IN THE ABOVE ORIGINAL PETITION AND HENCE HE IS NOT MADE A PARTY IN THIS APPEAL).** **R1 TO R5 BY ADVS. MR.P.RAVINDRA BABU R6 BY MR.VARGHESE PREM. R8 BY MR.M.NARENDRA KUMAR, SMT.LEENA KRISHNAN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON 18/02/2010 PASSED THE FOLLOWING:** ## **ORDER ON IA. NO.1538/2005 IN MACA. NO.744/2005** ## **DISMISSED** **18/02/2010** **SD/- C.N.RAMACHANDRAN NAIR, JUDGE SD/- C.K.ABDUL RAHIM, JUDGE** **TRUE COPY** **P.A. TO JUDGE** **tss** **C.R.** C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ----------------------------------------- M.A.C.A. No.744 of 2005 ------------------------------------------ Dated this the 18[th] day of February, 2010 J U D G M E N T ---------------------- ## Abdul Rehim, J. The question of law involved in this case is as to whether the claimant is entitled to recover the entire amount of compensation from any one of the owners or insurers of the vehicles involved in a motor accident, where two vehicles are involved and when the accident is caused due to composite negligence of drivers of both the vehicles. To be more precise the question is, when composite negligence of both drivers were found and when the Tribunal had apportioned the percentage of negligence among the two vehicles, whether a third party claimant is entitled to recover the whole amount of compensation from the owner or insurer of any one of the vehicles. 2. Brief facts of the case at hand is narrated hereunder. The 2[nd] respondent - Insurance Company - before the Tribunal is the appellant. The appellant is the insurer of a motor cycle which collided with a jeep. In the accident the MACA.744/05 2 pillion rider of the motor cycle died and claim petition was filed by his legal representatives/dependents. The 1[st] respondent before the Tribunal (6[th] respondent herein) is the owner cum rider of the motor cycle. Respondents 4 and 5 before the Tribunal (respondents 7 and 8 herein) are the driver and owner of the Jeep, respectively. The Jeep in question was not having any valid insurance policy as on the date of accident. In the criminal case registered with respect to the accident, both the drivers were made accused and charge sheeted for offences punishable under Section 279 and 304A of IPC. On appreciating the evidence on record, the Tribunal found that the accident occurred due to rash and negligent driving of both the vehicles by the respective drivers. The extent of negligence was apportioned between two vehicles at 50% each. Since the appellant/2[nd] respondent was the insurer of the Motor Cycle, they were held liable to indemnify the owner of the motor cycle to the extent of 50%. Since there was no valid insurance for the Jeep, the respondents 4 and 5 before the Tribunal were held liable for payment of the balance 50%, they being the driver and owner of the Jeep. But following the decision of this Court in **Sally** MACA.744/05 3 **Joseph Vs. Jose V.Jose (2002 (1) KLT 573)** the Tribunal had permitted the claimants to recover the entire amount from the appellant/2[nd] respondent, and the appellant/2[nd] respondent was permitted to recover 50% out of the total amount paid, from respondents 4 and 5. The appellant is challenging award of the Tribunal mainly on the ground that the Tribunal went wrong in directing the appellant to satisfy the total compensation, inspite of fixing 50% negligence on the driver of the Jeep. 3. The legal question arises for consideration is as to what is the extent of liability of a tortfeasors in a case of composite negligence. In the case of Sally Joseph(cited supra) a Division Bench of this court observed that; _“ There is cleavage of opinion on the question whether_ Tribunal _can direct apportionment of the liability. In New India Assurance Co.Ltd. v. Avinash (1988(1) ACJ 322), National Insurance Co. Ltd. v. Kastoori Devi (1988 (1) ACJ 8), it has been held that in a case of composite negligence, there is no method or indicia to bifurcate or apportion the liability. But in Inder Singh v. Haryana State (1987 (1) ACJ 94), Darshani Devi v. Sheo Ram (1987(2) ACJ 931) and Narinder Pal Singh v. Punjab State (AIR 1989 P & H 82), a different view has been taken. In our view, the latter view is in consonance with statutory intent as reflected in S.110B of the Act (corresponding to S.168 of Motor Vehicles Act, 1988). It is clear that while awarding the amount in a case of composite negligence,_ Tribunal _can direct payment of the entire compensation jointly and_ MACA.744/05 4 _severally, but at the same time would apportion the liability between the two owners for their facility and if both the owners or two insurance companies, as the case may be, pay amounts to the claimant in proportion as awarded by Tribunal, there is no problem for the claimant. But, if one of the parties liable does not want to honour the award of the_ Tribunal _, it will be open to claimant to recover the entire amount from the other, leaving such party to claim rateable distribution from the other. Where negligent acts of two or more independent persons have between them caused damage to a third, sufferer is not driver to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set by general rules as to remoteness of damage to sue all or any one of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons though in any case he cannot recover in the whole more than his whole damage.”_ While analysing the position this Court observed that composite negligence mean that both acts of negligence operate at the same time so as to form one transaction which gets so mixed up that it is not possible to separate the same in order to find out the whole fault in question. When more than one person is responsible in the commission of the wrong, the person wronged has a choice of proceeding against all or any one or more than one of the wrongdoers. Every wrongdoer is liable for the whole damage if it is otherwise made out. 4. Learned counsel for the appellant had pointed out MACA.744/05 5 an earlier decision of another Division Bench of this Court in **National Insurance Company Ltd. Vs. Sivasankara Pillai** **(1995 (1) KLT 51)** . In the said decision distinguishing between a contributory negligence and composite negligence this Court observed that: _“Separate act or acts done by separate tortfeasor must either have been in concert between each other or towards a common design resulting in the tort to make all of them joint tortfeasors. But in the case of several tortfeasors there in neither concert nor any common design though each person's independent wrongful act or omission would have resulted in one “damnum”. In a motor accident resulting from rash and negligent driving of more than one vehicle, the drivers of all the vehicles are several tortfeasors whose separate independent act of rash and negligent driving of the respective vehicles resulted in a common harm or injury. In the light of the contentions raised in these appeals that the drivers of the trekker and lorry were several tortfeasors and not joint tortfeasors. That being so, we do not think that appellant can be made liable for the percentage of the negligence attributed to the driver of the trekker. Since the Tribunal has found that negligence on the part of the driver of the lorry is 75% the liability of the driver, owner and appellant insurance company has to be limited to that extent only of the total damages assessed by the Tribunal_ .” In the said decision, while analysing the difference between the “joint tortfeasors” and “separate tortfeasors”, this Court relied on a quotation in Salmond, “The Law of Torts” (19[th] Edition at page 496), that “In order to be joint tortfeasors MACA.744/05 6 there must be concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage”. Relying on the above said principle, it is held that in a case where drivers of two distinct vehicles were negligent in causing accident, there is absolutely no concert or any design and only the separate act or acts of both of them merely coincide, the conjoint effect of which is causing the accident. Therefore they cannot be considered as 'joint tortfeasors' and there cannot be any joint liability. On the other hand they are 'separate tortfeasors' and their liabilities are also separate and distinct. 5. On analysing views of the two Division Bench decisions, we feel that the decision in National Insurance Company's case (cited supra) is more appropriate and correct for reasons which are not enumerated in both the decisions. In an act of tort other than a motor vehicle accident, even in the absence of a concert and common design there can be a coincidence which culminates in causing damage. In such cases the act or acts of more than one tortfeasor may not be separable. In such cases they can be termed as joint tortfeasors. In such case joint liability can be fixed. But in a case of motor accident where there is absolutely no concert or MACA.744/05 7 common design, the liability depends purely on the aspect of, negligence on the part of the driver, vicarious liability on the part of the owner, and liability of the insurance company to indemnify on the basis of the contract of insurance. In such case the liability of parties of each vehicle cannot be shared each other. The owner of a vehicle can be held vicariously liable only to the extent of the negligence caused by his employee, who is the driver of his vehicle. The insurer of a vehicle can be fetched with liability only on the basis of the contract of insurance and that too only to indemnify the insured of that vehicle. Since the owner of the other vehicle is not the insured, who had entered into any contract of insurance such insurance company cannot be held liable to indemnify a person who is not at all insured by virtue of any contract of insurance. 6. Therefore a more appropriate view in the case of composite negligence is to apportion the percentage of negligence and to fix up the liability on each vehicle to the extent of negligence. In such cases it is not correct to say that the sufferer of the wrong, who is the victim of the accident, has got any choice to sue any one of the owner or insurer for the total damages for which they are liable beyond the extent MACA.744/05 8 of negligence caused by the driver of such vehicle, when the drivers of both the vehicles are not 'joint tortfeasors' but only 'separate tortfeasors'. 7. Therefore in respectful disagreement with the dictum laid in Sally Joseph's case (cited supra) we hold that in a case of composite negligence the driver, owner and insurance company of each vehicle can be held liable only to the extent of liability fixed on them based on the percentage of negligence and in such cases any one of the insurer cannot be directed to make payment of the entire compensation to the victim. In the result the appeal is allowed and the judgment impugned is set aside to the extent of ordering the appellant/2[nd] respondent to pay the total amount of compensation awarded to the claimants. ## C.N.RAMACHANDRAN NAIR, JUDGE. ## C.K.ABDUL REHIM, JUDGE. okb