Salam T.A. v. Shaji, Suresh, The New India Assurance Company Ltd., Ratheesh, Anas T.A., The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939** **O.P (MAC).No. 23 of 2017 (O)** **----------------------------** **AGAINST ORDER DATED 09.11.2016 IN I.A.NO.2413/2016 IN O.P(MV) NO.419/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR.** ## **PETITIONER :** ## **------------** **SALAM T.A, S/O.AMEER, THAMARAPARAMBIL HOUSE, PALLIPRAM, MUDIKKAL, MARAMPILLY, ERNAKULAM DISTRICT** **BY ADV. SRI.K.K.MOHAMED RAVUF** **RESPONDENTS : -------------** **1. SHAJI, S/O.KUTTAPPAN, KUNNATHUKUDY HOUSE, ASAMANNOOR P.O., PERUMBAVOOR-683 510** ## **2. SURESH,** **S/O.NAHARAJAN, KALIYARA VEEDU, METHALA KARA, ASMANOOR, ERNAKULAM DISTRICT-683 549** **3. THE NEW INDIA ASSURANCE COMPANY LTD., JRJ COMPLEX, OTTAPALAM, PIN-679 101** **-2-** **4. RATHEESH, S/O.RAJAN, RAJI SADANAM, NELLIKUZHY P.O., ERNAKULAM DISTRICT-686 691** **5. ANAS T.A.,** - **S/O.AMEER, THAMARAPARAMBIL HOUSE, MUDICKAL P.O., PIN-683 547** **6. THE NEW INDIA ASSURANCE CO. LTD., POOVATHOOR BUILDINGS, M.C.ROAD, CHENGANNOOR-689 121** **BY ADV. SRI.A.A.ZIYAD RAHMAN, SC, THE NEW INDIA ASSURANCE COMPANY LIMITED. BY ADV. SRI.LAL K.JOSEPH** **THIS OP(MAC)HAVING COME UP FOR ADMISSION ON 23-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P(MAC).No. 23 of 2017 (O)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **---------------------** **EXHIBIT P1 TRUE COPY OF THE AWARD DATED 7.4.2016 IN OP (MV)NO.419/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR. EXHIBIT P2 TRUE COPY OF I.A.NO.2413/2016 IN O.P.(MV) NO.419/2010 FILED BY THE PETITIONER BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR. EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE 3RD RESPONDENT I.A.NO.2413/2016 IN O.P.(MV) NO.419/2010 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 9.11.2016 IN I.A.NO.2413/2016 IN O.P.(MV)NO.419/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR. RESPONDENTS' EXHIBITS : NIL ---------------------** **//TRUE COPY//** **P.A. TO JUDGE** **bpr** ## **C.R.** ## **P.B. SURESH KUMAR, J.** ## **--------------------------------------------** ## **O.P.(MAC) No.23 of 2017** **-------------------------------------------Dated this the 23[rd] day of March, 2017** ## **JUDGMENT** The petitioner is the claimant in O.P.(M.V.) No.419 of 2010 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The accident which is the subject matter of the said claim petition occurred on account of the collision of two vehicles. Respondents 1 and 4 were the owners and respondents 2 and 5 were the riders of the vehicles involved in the accident. Respondents 3 and 6 were the insurers of the vehicles. The Tribunal found that the accident occurred on account of the negligence of both respondents 2 and 5. The extent of the negligence of respondents 2 and 5 was also found by the Tribunal to be O.P.(MAC) No.23 of 2017 -2- equal. On the issue as to the liability, the Tribunal found that the sixth respondent insurer has no liability to indemnify the fourth respondent as the policy issued by them to the fourth respondent does not cover the risk of the claimant who was riding on the pillion of the vehicle owned by the fourth respondent. On the said findings, the Tribunal passed an award directing the third respondent insurer to pay to the claimant 50% of the compensation determined as due to him and respondents 4 and 5 to pay the balance 50%. According to the petitioner, the case being one of composite negligence, the vicarious liability of the owners is joint and several and therefore, the Tribunal should have directed the third respondent, who is the insurer of one of the vehicles involved in the accident to pay the entire compensation and should have permitted the third respondent thereafter to realise 50% of the same from respondents 4 and 5. The petitioner, therefore, preferred Ext.P2 petition seeking review of the award to O.P.(MAC) No.23 of 2017 -3- the said extent. Ext.P2 review petition has now been dismissed by the Tribunal as per Ext.P4 order holding that in a case of composite negligence where all the joint tortfeasors are there on the array of parties, the claimant is not entitled to realise the entire compensation from one among the joint tortfeasors. Ext.P4 order is under challenge in this original petition. 2. Heard the learned counsel for the petitioner as also the learned counsel for the third respondent. 3. Where a person is injured as a result of the negligence of two or more wrongdoers, each wrongdoer is jointly and severally liable to the injured for payment of damages and the injured has the right to realise damages from all or any one of the wrongdoers. All wrongdoers need not even be made parties in such proceedings. It is not necessary also for the injured to establish the extent of the negligence of each wrongdoer separately nor it is obligatory for the court to determine the extent of the O.P.(MAC) No.23 of 2017 -4- negligence of each wrongdoer in such cases, for the purpose of awarding damages to the injured. Even if all the wrongdoers are made parties to the proceedings and the court renders a finding as to the extent of the negligence of each of the wrongdoers, their liability to the injured would remain joint and several. The question of apportionment of damages among the wrongdoers does not arise in such cases, for, the liability of the wrongdoers is joint and several and the injured has a corresponding right to realise the whole compensation from all or any one of them. The principle to be followed in such cases is that the insured shall be permitted to realise the compensation from the easiest/solvent wrongdoer. Determination of the extent of negligence between the wrongdoers even if made in such cases would be relevant only when one wrongdoer institutes proceedings against others for realisation of the damages paid by him over and above the damages which he is liable to pay. (See **Khenyei v. New India** O.P.(MAC) No.23 of 2017 -5- **Assurance Company Limited and Others** [(2015)9 SCC 273] and **Anthony v. Karvarnan** [2008(3) KLT 431 (SC)]. 4. It is beyond dispute that the case on hand is a case of composite negligence. In the circumstances, the Tribunal ought not to have apportioned the liability between the wrongdoers, viz, the joint tortfeasors. Instead, the Tribunal ought to have permitted the claimant to realise the compensation from any one of the joint tortfeasors. The view taken by the Tribunal that the claimant is not entitled to realise compensation payable to him from one among the joint tortfeasors in a case where all the joint tortfeasors are parties to the proceedings, is unsustainable law, for, as stated above, the liability of the joint tortfeasors is joint and several and the injured has a corresponding right to realise the whole of the compensation from all or any one of them. In the result, the original petition is allowed, Ext.P4 order is set aside and Ext.P1 award is modified O.P.(MAC) No.23 of 2017 -6- directing the third respondent to deposit the entire amount covered by the award and permitting them to realise 50% of the same from respondents 4 and 5. Sd/- **P.B. SURESH KUMAR JUDGE** bpr