Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO. 5906 OF 2008

PAWAN KUMAR & ANR. ETC. ... APPELLANT (S)

VERSUS

M/S HARKISHAN DASS ... RESPONDENT (S) MOHAN LAL & ORS.

J U D G M E N T

RANJAN GOGOI, J.

1. The appellants were the claimants in the proceedings  

instituted  for  award  of  compensation  under  the  Motor  

Vehicles  Act,  1988  (hereinafter  referred  to  as  “the  Act”).  

They  are  aggrieved  by  the  decision  of  the  High  Court  of  

Punjab & Haryana at Chandigarh in F.A.O. Nos. 695, 407 and  

408 of 1995 dated 05.07.2006 by which, though their claim  

for compensation has been upheld, the liability to pay the  

1

Page 2

same has been apportioned between the drivers/owners of  

the  two  vehicles  involved  in  the  motor  accident.   The  

appellants  contend that  as  they  were  third  parties  to  the  

claim, the High Court ought to have made the drivers/owners  

of  the  vehicles  jointly  and  severally  liable  to  pay  

compensation in view of their composite negligence instead  

of  apportioning  their  liability  by  invoking  the  principle  of  

contributory negligence.

2. The brief facts that will be required to be noticed may  

now be set out:

Deceased Yogesh (12 years) and Parshotam D. Gupta  

and injured Salochna were travelling in Jeep No.PB-03-6848  

from Sirsa, Haryana to Vaishno Devi on 19.06.1993. The jeep  

which is owned by the respondent No.1 and driven by the  

respondent No.2 met with an accident with a truck coming  

from the opposite direction as a result of which Parshotam D.  

Gupta  and  Yogesh  died  on  the  spot  whereas  Salochna  

received serious injuries.  Claim petitions were filed by the  

parents of Yogesh and the legal heirs of deceased Parshotam  

2

Page 3

Dass  including  Salochna  who  is  his  wife.   The  injured  

Salochna also filed a separate claim petition in respect of the  

injuries sustained by her in the same accident.  As the truck  

involved  in  the  accident  had  fled  from  the  spot,  the  

driver/owner  and  insurer  of  the  said  truck  could  not  be  

impleaded  in  any  of  the  claim  petitions  filed  by  the  

claimants.

The  Motor  Accident  Claims  Tribunal  (for  short  “the  

Tribunal) by its award dated 07.11.1994 held that the truck  

alone was responsible for the accident and in the absence of  

the  driver/owner  or  the  insurer  of  the  said  vehicle,  no  

compensation  can  be  awarded  to  any  of  the  claimants.  

Aggrieved, the matter was carried in appeal. The High Court  

by its order dated 05.07.2006 held that both the truck as well  

as  the  jeep,  in  which the  deceased  and  the  injured  were  

travelling, were responsible for the accident.  The High Court  

further held that the liability of the driver/owner of the truck  

should be estimated at 70% and that of the driver/owner of  

the jeep at 30%.  Accordingly, the High Court held that in  

respect  of  the  death  of  Yogesh,  compensation  of  

3

Page 4

Rs.2,00,000/-  would  be  the  just  and  fair  compensation  

payable to the legal heirs.  30% thereof i.e. Rs.60,000/- was  

held to be payable by the driver/owner/insurer of the jeep.  In  

respect of deceased Parshotam, the High Court held that the  

amount of compensation payable would be Rs.5,76,000/- and  

accordingly made the respondent Nos.1, 2 and 3 (insurer)  

liable to pay 30% of the said compensation which comes to  

Rs.1,72,800/-.  Insofar as the injuries sustained by Salochna  

is  concerned,  the  High  Court  computed  the  amount  of  

compensation  payable  at  Rs.2,00,000/-  and  made  the  

respondent Nos. 1, 2 and 3 liable for compensation to the  

extent of 30% of the said amount i.e. Rs.60,000/-. Aggrieved  

by the  said  order,  the  appellants/claimants  have filed  the  

present appeal.  

3. We have heard the learned counsels for the parties.  

4. Learned counsel for the appellants has contended that  

though the High Court has rightly held both the vehicles to  

be responsible for the accident it  has committed a glaring  

error in invoking the principle of contributory negligence in  

4

Page 5

the present case and in apportioning the liability between  

the  drivers/owners  of  the  two  vehicles.   Relying  on  the  

decision of this  Court  in  T.O. Anthony Vs. Karvarnan &  

Ors.1 which has been followed in a subsequent decision in  

Andhra Pradesh State Road Transport Corporation &  

Anr.  Vs.  K. Hemlatha & Ors.2, learned counsel has urged  

that in a case where the claimant is a third party (other than  

the driver/owner of the vehicles involved in the accident) the  

correct principle for determination of the liability is that of  

composite negligence which would make the drivers/owners  

of the two vehicles jointly and severally liable.  The principle  

of  contributory  negligence  so  as  to  apportion  the  liability  

between  the  drivers/owners  would  be  relevant  only  if  the  

claim for compensation is by one of the drivers himself or by  

his  legal  heirs,  as  the  case  may  be.   It  is,  therefore,  

contended that the apportionment made by the High Court is  

against the settled principles of law laid down by this Court.   

5. Learned counsel appearing for the respondent No.1 has  

argued that even if the view taken by the High Court that  1 (2008) 3 SCC 748 2 (2008) 6 SCC 767

5

Page 6

both the vehicles were responsible for the accident is to be  

accepted,  the  liability  of  the  joint  tortfeasors  has  to  be  

apportioned which has been so done by the High Court. It is  

also submitted that in the absence of any specific material  

the apportionment of compensation, as determined by the  

High Court, ought not to be disturbed.

6. The distinction between the principles of composite and  

contributory negligence has been dealt  with  in  Winfield  &  

Jolowicz on Tort (Chapter 21) (15th Edition, 1998).  It would be  

appropriate  to  notice  the  following passage  from the  said  

work:-

“WHERE two or more people by their independent  breaches of duty to the plaintiff 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  plaintiff  to  suffer  a  single injury the position is more complicated.  The  law in such a case is that the plaintiff 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.   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 is greatly to the  

6

Page 7

plaintiff’s  advantage  to  show  that  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.  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.

……………………………………………………………….. ………………………………………………………………… …..

The question of whether  there is one injury  can be a difficult one.  The simplest case is that of  two virtually simultaneous acts of negligence, as  where two drivers behave negligently and collide,  injuring  a  passenger  in  one  of  the  cars  or  a  pedestrian, but there is no requirement that  the  acts be simultaneous.   ……………..”

7. Where  the  plaintiff/claimant  himself  is  found to  be  a  

party  to  the  negligence  the  question  of  joint  and  several  

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

his own negligence, as may be quantified, will  have to be  

severed.  In such a situation the plaintiff can only be held  

entitled to such part of damages/compensation that is not  

attributable to his own negligence.  The above principle has  

7

Page 8

been explained in  T.O. Anthony (supra)  followed in    K.  

Hemlatha & Ors. (supra).  Paras 6 and 7 of T.O. Anthony  

(supra) which are relevant may be extracted hereinbelow:

“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  wrongdoers,  it  is  said  that  the  person  was  injured  on  account  of  the  composite  negligence  of  those  wrongdoers.  In  such  a  case, each wrongdoer 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  wrongdoer separately, nor is it necessary for  the court to determine the extent of liability  of each wrongdoer 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 on  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  stand  reduced  in  proportion  to  his  contributory negligence.

7. Therefore, when two vehicles are involved  in an accident, and one of the drivers claims  

8

Page 9

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.”

8. In  the present case,  neither  the driver/owner nor the  

insurer has filed any appeal or cross objection against the  

findings  of  the  High  Court  that  both  the  vehicles  were  

responsible for the accident.  In the absence of any challenge  

to the aforesaid part of the order of the High Court, we ought  

to proceed in the matter by accepting the said finding of the  

High Court.  From the discussions that have preceded, it is  

clear that the High Court was not correct in apportioning the  

9

Page 10

liability for the accident between drivers/owners of the two  

vehicles.   

9. We, accordingly,  hold that  the drivers/owners of both  

the  vehicles  are  jointly  and  severally  liable  to  pay  

compensation and it is open to the claimants to enforce the  

award against both or any of them.  The order of the High  

Court dated 05.07.2006 is modified to the extent indicated  

above and the appeal is allowed.

...…………………………CJI. [P. SATHASIVAM]

.........………………………J. [RANJAN GOGOI]

…...............………………J. [SHIVA KIRTI SINGH]

NEW DELHI, JANUARY 29, 2014.

10