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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

J U D G M E N T

ARUN MISHRA, J.

1. Leave granted.

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  FAO  

No.345/2007.

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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.

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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 at

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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

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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  eye-

witnesses, 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.

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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.

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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)