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                                       Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4244  OF 2015

[Arising out of SLP (C) No.14015/2010]

Khenyei ... Appellant

Vs.

New India Assurance Co. Ltd. & Ors. ... Respondents

With CA No.4245/2015 @ SLP [C] No.14699/2010; CA No.4246/2015 @ SLP [C] No.14700/2010; CA No.4247/2015 @ SLP [C] No.14701/2010; CA No.4248/2015 @ SLP [C] No.14743/2010; CA No.4249/2015 @ SLP [C] No.14847/2010; and CA No.4250/2015 @ SLP [C] No.14865/2010.

J U D G M E N T

ARUN MISHRA, J.

1.           Leave granted.

2. In  the  appeals,  the  main  question  which  arises  for

consideration  is,  whether  it  is  open  to  a  claimant  to  recover  entire

compensation  from  one  of  the  joint  tort  feasors,  particularly  when  in

accident caused by composite negligence of drivers of trailor-truck and bus

has been found to 2/3rd and 1/3rd extent respectively.

3. In  the  instant  cases  the  injuries  were  sustained  by  the

claimants  when  two vehicles  –  bus  and  trailor-truck  collided  with  each

other. The New India Assurance Co. Ltd. is admittedly the insurer of the

bus. However, on the basis of additional evidence adduced the High Court

has come to the conclusion that the New India Assurance Co. Ltd. is not the

insurer of the trailor-truck, hence is not liable to satisfy 2/3rd of the award.

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4. It is a case of composite negligence where injuries have been

caused to the claimants by combined wrongful act of joint tort feasors. In a

case of accident caused by negligence of joint tort feasors, all the persons

who aid or counsel or direct or join in committal of a wrongful act, are

liable. In such case, the liability is always joint and several. The extent of

negligence of joint tort feasors in such a case is immaterial for satisfaction

of the claim of the plaintiff/claimant and need not be determined by the

court.   However, in case all the joint tort feasors are before the court, it may

determine the extent of their liability for the purpose of adjusting inter-se

equities between them at appropriate stage.  The liability of each and every

joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is

joint  and  several  liability.  In  the  case  of  composite  negligence,

apportionment of compensation between tort feasors for making payment to

the  plaintiff  is  not  permissible  as  the  plaintiff/claimant  has  the  right  to

recover the entire amount from the easiest targets/solvent defendant.  

5. In Law of Torts, 2nd Edn., 1992  by Justice G.P. Singh, it has

been  observed  that  in  composite  negligence,  apportionment  of

compensation between two tort feasors is not permissible.

6. In Law of Torts by Winfield and Jolowicz, 17th Edn., 2006,

the author has referred to Performance Cars Ltd. v. Abraham [1962 (1) QB

33],  Baker v. Willoughby 1970  A.C. 467,  Rogers on Unification of Tort

Law:  Multiple  Tortfeasors;  G.N.E.R.  v. Hart [2003]  EWHC 2450 (QB),

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Mortgage Express Ltd. v. Bowerman & Partners 1996 (2) All E.R. 836 etc.

and observed thus :

“WHERE two or more people by their independent breaches of duty  to  the  claimant  cause  him  to  suffer  distinct  injuries,  no special  rules  are  required,  for  each  tortfeasor  is  liable  for  the damage  which  he  caused  and  only  for  that  damage.  Where, however, two or more breaches of duty by different persons cause the claimant to suffer a single, indivisible injury the position is more complicated. The law in such a case is that the claimant is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it.  If the claimant sues defendant A but not B and C, it is open to A to seek “contribution”  from  B  and  C  in  respect  of  their  relative responsibility but this is a matter among A, B and C and does not affect the claimant. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It may be greatly to the claimant’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.  Even where all  participants  are solvent,  a  system which enabled  the  claimant  to  sue each one only for a proportionate part of the damage would require him to launch  multiple  proceedings,  some  of  which  might  involve complex issues of liability, causation and proof. As the law now stands, the claimant may simply launch proceedings against the “easiest target”. The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role. Thus a solicitor may be liable in full for failing to point out to his client that there is reason to believe that a valuation on which the client proposes to lend is suspect, the valuer being insolvent; and an auditor will be likely to carry sole responsibility for negligent failure to discover fraud during a company audit. A sustained campaign against the rule of joint and several liability has been mounted in this country by  certain  professional  bodies,  who  have  argued  instead  for  a regime  of  “proportionate  liability”  whereby,  as  against  the claimant,  and  not  merely  among  defendants  as  a  group,  each

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defendant would bear only his share of the liability. While it has not been suggested here that such a change should be extended to personal  injury  claims,  this  has  occurred  in  some  American jurisdictions, whether by statute or by judicial decision. However, an investigation of the issue by the Law Commission on behalf of the Dept of trade and Industry in 1996 led to the conclusion that the  present  law  was  preferable  to  the  various  forms  of proportionate liability.”

7. Pollock in Law of Torts, 15th Edn. has discussed the concept

of  composite  negligence.  The  relevant  portion  at  page  361  is  extracted

below :

 “Another kind of question arises where a person is injured without any fault of his own, but by the combined effects of the negligence of two persons of whom the one is not responsible for the  other. It  has  been supposed that  A could  avail  himself,  as against Z who has been injured without any want of due care on his own part, of the so-called contributory negligence of a third person B. It  is true you were injured by my negligence,  but it would  not  have  happened  if  B  had  not  been  negligent  also, therefore, you can not sue me, or at all events not apart from B. Recent  authority  is  decidedly against  allowing such a  defence, and  in  one  particular  class  of  cases  it  has  been  emphatically disallowed. It must, however, be open to A to answer to Z: You were not injured by my negligence at all, but only and wholly by B's. It seems to be a question of fact rather than of law (as, within the usual limits of a jury's discretion, the question of proximate cause  is  in  all  ordinary  cases)  what  respective  degrees  of connection, in kind and degree, between the damage suffered by Z and the independent negligent conduct of A and B will make it proper to say that Z was injured by the negligence of A alone, or of B alone, or of both A and B,.  But if this last conclusion be arrived at, it is now quite clear that Z can sue both A and B.

At page 362 Author has observed as :-

"The strict analysis of the proximate or immediate cause of the event: the inquiry who could last have prevented the mischief by

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the exercise of due care, is relevant only where the defendant says that the plaintiff suffered by his own negligence. Where negligent acts  of  two  or  more  independent  persons  have  between  them caused damage to a third, 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 by the general rules as to remoteness of damage- to sue all  or any 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 can not recover in the whole more than his whole damage."

8. In  Palghat  Coimbatore  Transport  Co.  Ltd.  v.  Narayanan,

[ILR (1939) Mad. 306], it has been held that 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.

9. In  National Insurance Co. Ltd.  v. P.A. Vergis & Ors. [1991

(1) ACC 226], it has been observed that the case of composite negligence is

one when accident occurs and resulting injuries and damages flow without

any negligence on the part of the claimant but as a result of the negligence

on the part of two or more persons. In such a case, the Tribunal should pass

a composite decree against owners of both vehicles. In United India Fire &

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Genl. Ins. Co. Ltd. v. Varghese & Ors. [1989 2 ACC 483 = 1989 ACJ 472],

it has been observed that in a case of composite negligence, the injured has

option to proceed against all or any of the joint tortfeasors. Therefore, the

insurer cannot take a defence that action is not sustainable as the other joint

tort feasors have not been made parties. Similar is the view taken in United

India Fire & General Insurance Co. Ltd. v. U.E. Prasad & Ors. [AIR 1985

Kar. 160]. In Andhra Marine Exports (P) Ltd.  & Anr. v. P. Radhakrishnan

& Ors. [AIR 1984 Mad. 358], it has been held that every wrong doer is

liable  for  whole  damages  in  the  case  of  composite  negligence  if  it  is

otherwise made out.

Similar is the view taken in Smt. Kundan Bala Vora & Anr. v.  State

of U.P. [AIR 1983 All. 409], where a collision between bus and car took

place. Negligence of both the drivers was found. It was held that they would

be jointly and severally liable to pay the whole damages. In Narain Devi &

Ors. v. Swaran Singh & Ors. [1989 2 ACC 116 (Del.) = 1989 ACJ 1118]

there was a case of composite negligence by drivers of two trucks involved

in an accident which hit the tempo from two sides. The proportion in which

the two vehicles misconducted or offended was not decided. It was held by

the High Court that the Tribunal was right in holding the liability of tort

feasors as joint and several.  

10. A Full Bench of the High Court of Karnataka at Bangalore in

Karnataka State Road Transport Corporation, Bangalore and etc. v. Arun

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alias Aravind and etc. etc. [AIR 2004 Kar. 149] has affirmed the decision of

another Full  Bench of  the same High Court  in  Ganesh v. Syed Munned

Ahamed  & Ors.  [ILR (1999)  Kar.  403].  A Division  Bench  referred  the

decision in Ganesh’s case (supra) on  following two questions to the larger

Bench :  

“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 tort feasor who has satisfied the award, but who does not know the particulars of the vehicle which was responsible for the accident?”  

11. A Full  Bench in  KSRTC v. Arun @ Aravind (supra)  while

answering aforesaid questions has observed that it was a case of composite

negligence and the liability of tort  feasors was joint and several.  Hence,

even if there is non-impleadment of one of tort feasors, the claimant was

entitled to full compensation quantified by the Tribunal.  The Full Bench

referred to the decision of a Division Bench of the Gujarat High Court in

Hiraben Bhaga & Ors. v. Gujarat State Road Transport Corporation [1982

ACJ (Supp.) 414 (Guj.)] in which it has been laid down that it is entirely the

choice of  the claimant  whether to implead both the joint  tort  feasors or

either of them. On failure of the claimant to implead one of the joint tort

feasors, contributory liability cannot be fastened upon the claimant to the

extent of the negligence of non-impleaded joint tort feasors. It is for the

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joint tort feasors made liable to pay compensation to take proceedings to

settle  the  equities  as  against  other  joint  tort  feasors  who  had  not  been

impleaded.  It is open to the impleaded joint tort feasor to sue the other

wrong doer after the decree or award is given to realize to the extent of

others’ liability.  It has been laid down that the law in Ganesh’s case (supra)

has been rightly laid down and it is not necessary to implead all joint tort

feasors  and  due  to  failure  of  impleadment  of  all  joint  tort  feasors,

compensation  cannot  be  reduced  to  the  extent  of  negligence  of

non-impleaded  tort  feasors.  Non-impleadment  of  one  of  the  joint  tort

feasors is not a defence to reduce the compensation payable to the claimant.

In our opinion, the law appears to have been correctly stated in KSRTC v.

Arun @ Aravind (supra).

12. A Full Bench of Madhya Pradesh High Court in Smt. Sushila

Bhadoriya & Ors. v. M.P. State Road Transport Corpn. & Anr. [2005 (1)

MPLJ 372] has also laid down that in case of composite negligence, the

liability is joint and several and it is open to implead the driver, owner and

the insurer one of the vehicles to recover the whole amount from one of the

joint tort feasors. As to apportionment also, it has been observed that both

the vehicles will be jointly and severally liable to pay the compensation.

Once the negligence and compensation is determined, it is not permissible

to apportion the compensation between the two as it is difficult to determine

the  apportionment  in  the  absence  of  the  drivers  of  both  the  vehicles

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appearing in the witness box. Therefore, there cannot be apportionment of

the claim between the joint tort feasors.  The relevant portion of  decision of

Full Bench is extracted hereunder :

“When injury  is  caused as  a  result  of  negligence  of  two joint tort-feasors, claimant is not required to lay his finger on the exact person regarding his proportion of liability. In the absence of any evidence enabling the Court to distinguish the act of each joint tort-feasor,  liability  can  be  fastened  on  both  the  tort-feasors jointly and in case only one of the joint tort-feasors is impleaded as party, then entire liability can be fastened upon one of the joint tort-feasors. If both the joint tort-feasors are before the Court and there is sufficient evidence regarding the act of each tort-feasors and it is possible for the Court to apportion the claim considering the exact  nature of  negligence by both the joint  tort-feasors,  it may  apportion  the  claim.  However,  it  is  not  necessary  to apportion the claim when it is not possible to determine the ratio of negligence of joint tort-feasors. In such cases, joint tort-feasors will be jointly and severally liable to pay the compensation.

On the same principle, in the case of joint tort- feasors where the liability is joint and several, it  is the choice of the claimant to claim damages from the owner and driver and insurer of both the vehicles or any one of them. If claim is made against one of them, entire amount of compensation on account of injury or death can be imposed against the owner, driver and insurer of that vehicle as their liability is joint and several and the claimant can recover the  amount  from  any  one  of  them.  There  can  not  be apportionment of  claim of each tort-  feasors in the absence of proper and cogent evidence on record and it is not necessary to apportion the claim.

To sum up, we hold as under:-

(i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles. Claimant may implead the owner, driver and insurer of both the vehicles or anyone of them.

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(ii)  There  can  not  be  apportionment  of  the  liability  of  joint tort-feasors. In case both the joint tort-feasors are impleaded as party  and  if  there  is  sufficient  material  on  record,  then  the question  of  apportionment  can  be  considered  by  the  Claims Tribunal.  However,  on  general  principles  of  Jaw,  there  is  no necessity to apportion the inter se liability of joint tort-feasors.

Reference  is  answered  accordingly.  Appeal  be  placed  before appropriate Bench for hearing.”

13. In our opinion,  the law laid down by the Madhya Pradesh

High  Court  in  Smt.  Sushila  Bhadoriya (supra)  is  also  in  tune  with  the

decisions of the High Court of Karnataka in  Ganesh (supra) and  Arun @

Aravind (supra). However, at the same time, suffice it to clarify that even if

all the joint tort feasors are impleaded and both the drivers have entered the

witness box and the tribunal or the court is able to determine the extent of

negligence of each of the driver that is for the purpose of inter se liability

between the  joint  tort  feasors  but  their  liability  would  remain  joint  and

several so as to satisfy the plaintiff/claimant.

14. There  is  a  difference  between  contributory  and  composite

negligence.  In  the  case  of  contributory  negligence,  a  person  who  has

himself contributed to the extent cannot claim compensation for the injuries

sustained  by  him  in  the  accident  to  the  extent  of  his  own  negligence;

whereas in the case of composite negligence, a person who has suffered has

not  contributed  to  the  accident  but  the  outcome  of  combination  of

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negligence of two or more other persons.  This Court in  T.O. Anthony v.

Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory

negligence, injured need not establish the extent of responsibility of each

wrong doer  separately, nor is it necessary for the court to determine the

extent of liability of each wrong doer separately. It is only in the case of

contributory  negligence  that  the  injured  himself  has  contributed  by  his

negligence  in  the  accident.  Extent  of  his  negligence  is  required  to  be

determined as damages recoverable by him in respect of the injuries have to

be  reduced  in  proportion  to  his  contributory  negligence.  The  relevant

portion is extracted hereunder :

“6. 'Composite negligence' refers to the negligence on the part of two or more persons.  Where a person is injured as a result  of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence  of  the  part  of  the  injured  which  contributed  to  the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages  recoverable  by  him  in  respect  of  the  injuries  stands reduced in proportion to his contributory negligence.

7. Therefore, when two vehicles are involved in an accident, and

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one  of  the  drivers  claims  compensation  from the  other  driver alleging  negligence,  and  the  other  driver  denies  negligence  or claims that  the injured  claimant  himself  was negligent,  then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly  liable,  the  principle  of  'composite  negligence'  will  not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent  of  contributory negligence  of  the appellant  and  thereby  avoided  confusion  between  composite negligence  and  contributory  negligence.  The  High  Court  has failed to correct the said error.”

15. The decision in T.O. Anthony v. Karvarnan & Ors. (supra) has

been relied upon in Andhra Pradesh State Road Transport Corpn. & Anr. v.

K Hemlatha & Ors. [2008 (6) SCC 767].

16. In  Pawan Kumar & Anr. v. Harkishan Dass Mohan Lal &

Ors. [2014  (3)  SCC  590],  the  decisions  in  T.O.  Anthony (supra)  and

Hemlatha (supra) have been affirmed, and this Court has laid down that

where  plaintiff/claimant  himself  is  found  to  be  negligent  jointly  and

severally, liability cannot arise and the plaintiff’s claim to the extent of his

own  negligence,  as  may  be  quantified,  will  have  to  be  severed.  He  is

entitled  to  damages  not  attributable  to  his  own  negligence.  The

law/distinction with respect to contributory as well as composite negligence

has been considered by this Court in Machindranath Kernath Kasar v. D.S.

Mylarappa & Ors. [2008 (13) SCC 198] and also as to joint tort feasors.

This Court has referred to Charlesworth & Percy on negligence as to cause

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of action in regard to joint tort feasors thus:

“42. Joint tortfeasors, as per 10th Edn. of  Charlesworth & Percy on Negligence, have been described as under :

Wrongdoers  are  deemed  to  be  joint  tortfeasors,  within  the meaning of the rule, where the cause of action against each of them is the same, namely, that the same evidence would support an action against them, individually…..  Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time.  This occurs  in  cases  of  (a)  agency;  (b)  vicarious  liability;  and  (c) where  a  tort  is  committed  in  the  course  of  a  joint  act,  whilst pursuing a common purpose agreed between them.”

    The question also arises as to the remedies available to one of the

joint tort feasors from whom compensation has been recovered.  When the

other  joint  tort  feasor  has  not  been  impleaded,  obviously   question  of

negligence of non-impleaded driver could not be decided apportionment of

composite negligence cannot be made in the absence of impleadment of joint

tort feasor. Thus, it would be open to the impleaded joint tort feasors after

making payment of compensation, so as to sue the other joint tort feasor and

to recover from him the contribution to the extent of his negligence. However,

in case when both the tort feasors are before the court/tribunal, if evidence is

sufficient, it may determine the extent of their negligence so that one joint tort

feasor can recover the amount so determined from the other joint tort feasor in

the  execution  proceedings,  whereas  the  claimant  has  right  to  recover  the

compensation  from  both  or  any  one  of  them.   This  Court  in  National

Insurance Co. Ltd. v. Challa Bharathamma & Ors. [2004 (8) SCC 517] with

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respect to mode of recovery has laid down thus :

“13.  The  residual  question  is  what  would  be  the  appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and  liberty  to  recover  the  amount  from  the  insured.  For  the purpose  of  recovering  the  amount  paid  from  the  owner,  the insurer  shall  not  be  required  to  file  a  suit.  It  may  initiate  a proceeding before the concerned Executive Court as if the dispute between  the  insurer  and  the  owner  was  the  subject  matter  of determination before the Tribunal and the issue is decided against the  owner  and  in  favour  of  the  insurer.  Before  release  of  the amount  to  the  claimants,  owner  of  the  offending vehicle  shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executive Court shall take assistance  of  the  concerned  Regional  Transport  Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court  to  direct  realization by disposal  of  the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.”

17. In  Oriental  Insurance Co. Ltd. v. Nanjappan & Ors.  [2004

(13)  SCC 224] also, this Court has laid down thus :

“8. Therefore, while setting aside the judgment of the High court we direct in terms of what has been stated in  Baljit Kaur's case [2004  (2)  SCC  1]  that  the  insurer  shall  pay  the  quantum  of compensation fixed by the Tribunal,  about which there was no dispute raised, to the respondents-claimants within three months from today. The for the purpose of recovering the same from the insured,  the insurer  shall  not  be required to file a suit.  It  may initiate a proceeding before the concerned Executing Court as if

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the dispute between the insurer and the owner was the subject matter  of  determination  before  the  Tribunal  and  the  issue  is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned  Regional  Transport  authority.  The  Executing  Court shall  pass appropriate  orders  in  accordance with law as to the manner in which the insured,  owner of the vehicle shall  make payment to the insurer. In case there is any default it shall be open to the Executing Court  to  direct  realization by disposal  of  the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs.”

18. This Court in Challa Bharathamma & Nanjappan (supra) has

dealt with the breach of policy conditions by the owner when the insurer

was asked to pay the compensation fixed by the tribunal and the right to

recover the same was given to the insurer in the executing court concerned

if the dispute between the insurer and the owner was the subject-matter of

determination for the tribunal and the issue has been decided in favour of

the insured. The same analogy can be applied to the instant cases as the

liability of the joint tort feasor is joint and several.  In the instant case, there

is determination of inter se liability of composite negligence to the extent of

negligence  of  2/3rd and  1/3rd of  respective  drivers.  Thus,  the  vehicle  –

trailor-truck which was not insured with the insurer, was negligent to the

extent of 2/3rd.  It would be open to the insurer being insurer of the bus after

making payment to claimant to recover from the owner of the trailor-truck

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the amount to the aforesaid extent in the execution proceedings. Had there

been no determination of the inter se liability for want of evidence or other

joint tort feasor had not been impleaded, it was not open to settle such a

dispute and to recover the amount in execution proceedings but the remedy

would be to file another suit or appropriate proceedings in accordance with

law.

What emerges from the aforesaid discussion is as follows : (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

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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.  

19. Resultantly, the appeals are allowed. The judgment and order

passed by the High Court is hereby set aside. Parties to bear the costs as

incurred.

             ...........................CJI

          (H.L. Dattu)

................................J. (S.A. Bobde)

New Delhi; ...............................J. May 07, 2015. (Arun Mishra)