Kerala High Court
National Insurance Co. Ltd. vs Sivasankara Pillay And Ors. on 25 November, 1994
Equivalent citations: II(1995)ACC104, 1995ACJ1077
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. National Insurance Co. Ltd. is the appellant in all these appeals which are in challenge of different awards passed by a Motor Accidents Claims Tribunal (for short 'the Tribunal') in favour of different claimants, but all arising out of one accident. A collision of two motor vehicles took place at about 6 p.m. on 8.7.1985 at Chadayamangalam on Trivandrum-Kottarakkara Road. One of the vehicles involved in the collision was a Trekker (TME 4213) and the other was a lorry (KEY 3646).
2. All claimants were passengers in the Trekker. The Claims Tribunal found that the collision was the result of composite negligence of the drivers of both vehicles, but the ratio of negligence factor was different as between them. Tribunal fixed negligence on the part of the driver of the lorry as 75 per cent and on the part of the driver of the Trekker as 25 per cent. The lorry was insured with the appellant insurance company. The owner and driver of the Trekker were not made parties in the claims, nor has the insurer of the Trekker been impleaded in the proceedings. So the Tribunal, after holding that the accident was the result of composite negligence of both drivers, passed the award against the driver and owner of the lorry and directed the appellant insurance company to pay the entire amount of damages. However, the Tribunal permitted the appellant company to recover 25 per cent of the, award amount from the owner, driver and/or insurer of the Trekker. These appeals are in challenge of the said awards.
3. Learned counsel for the appellant contended that the appellant insurance company could not be made liable for anything more than what the insured is liable and that the insurer cannot be made liable for any amount more than the percentage of negligence fixed in respect of the vehicle insured. The permission to recover 25 per cent of the award amount from the owner, driver and insurer of the Trekker is no consolation for the appellant as the said direction is not binding on them since they were not parties in the claim proceedings, contended the counsel.
4. If it was a case of composite negligence and if drivers of both vehicles are joint tortfeasors the claimant can choose to realise the entire amount of damages from any one of the joint tortfeasors. The said position is wellnigh settled [vide United India Insurance Co. Ltd. v. Prema-kumaran 1988 ACJ 597 (Kerala); United India Fire & Genl. Insurance Co. Ltd. v. Varghese 1989 ACJ 472 (Kerala) and Velunni v. Vellakutty 1989 (2) KLT 227]. In all those cases the decisions proceeded on the assumption that the drivers of both vehicles involved in a collision were joint tortfeasors. As the said premises were not disputed in those cases, the well settled legal principle that the claimant can proceed against any one of the joint tortfeasors applied therein.
5. But Mr. S.B. Premachandra Prabhu, learned counsel for the appellant, raised the contention in these cases that the drivers of both the vehicles are not joint tortfeasors, but independent or several tortfeasors and hence each can be made liable only to the extent of his negligence. In other words, the contention is that if there are several tortfeasors one of them cannot be compelled to bear the liability of the other man's share of negligence.
6. At this stage we would make it clear that contributory negligence cannot be equated with joint tortfeasorship. In the case of contributory negligence the injured claimant as well as the tortfeasor, both should have contributed to the accident through each party's separate negligence. In such a case the liability of the tortfeasor gets slashed down in proportion to the negligence contributed by the claimant. But in the case of joint tortfeasors there is no contribution from the claimant in the tort.
7. Now we proceed to consider whether in a collision of two motor vehicles the drivers of both the vehicles are joint tortfeasors or only several or independent tortfeasors. Determination of the said question is indispensable as the contention is pressed into service. This is particularly so since Section 110-B of the Motor Vehicles Act, 1939 (corresponding to Section 168 (1) of the Motor Vehicles Act, 1988) obliges the M.A.C.T. not only to determine the amount of compensation, but to specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any one of them, as the case may be.
8. Winfield on Tort has shown the distinction between joint tortfeasors and several tortfeasors. Under common law tortfeasors were broadly classified into 'joint' tortfeasors and 'several' tortfeasors. The learned author has pointed out that the said distinction was formerly of importance but has later been largely eroded by statutes but it remains of significance for some purpose. At page 591 (13th Edition) of Winfield and Jolowicz on Tort, it is stated thus: "Persons are said to be joint tortfeasors when their separate shares in the commission of the tort are done in furtherance of a common design." It was based on the principle laid down in Brook v. Bool 1928 (2) KB 578. In that case two men were searching for a gas leak and each applied a naked light to a gas pipe in turn and one of them caused an explosion. They were held to be joint tortfeasors. The said principle was made in deviation from the case 'The Kourask' (1924, p. 140) in which two ships collided because of the independent act of negligence of each of them and one of them without further negligence collided with a third. It was held that they were several tortfeasors because there was no community of design. In Salmond: The Law of Torts (at page 496 of the 19th Edition) learned author has stated thus: "In order to be joint tortfeasors 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." Quoting from 'The Kourask' learned author pointed out that 'the injuria as well as the damnum must be the same'. In the book by Street on Torts the categories of joint tortfeasors have been enumerated at page 473 in the 7th Edition. They are: (a) Master and servant in those cases where the master is vicariously liable for the tort of the servant. (b) Where one person instigates another to commit a tort, (c) Where there is a breach of a duty imposed jointly on two or more persons, e.g., two occupiers are joint tortfeasors if they are sued by a visitor for failure to take reasonable care in respect of the premises jointly occupied by them, (d) Where persons take concerted action to a common end and in the course of executing that joint purpose, any one of them commits a tort. Quoting Morris, LJ., in Rinkwater v. Kimber 1952 (2) QB 281, learned author has stated that where a passenger in a motor car was injured in a collision between that car and another the two drivers, both of whom were negligent, were separate tortfeasors whose concurrent acts caused injury to the plaintiff.
9. The typical examples of joint tortfeasors can be drawn from the instances where penal liability is fixed under Section 34 as well as Section 149 of the Indian Penal Code because a common design can be traced in either of them. Separate act or acts done by separate tortfeasors 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 is neither concert nor any common design though each person's independent wrongful act or omission would have resulted in one damnum.
10. In the case of several tortfeasors the position has been further illustrated by Street quoting from Thopson v. London County Council 1989 (1) QB 840. In that case plaintiff's house was damaged when its foundation had subsided. This was caused by negligent excavation by the first defendant as well as by the second defendant (a water company) which negligently allowed water to escape from their main. This was found to be a typical case of several tortfeasors.
11. The above legal position has been succinctly dealt with by Hansaria, J. (as he then was) in Drupad Kumar Barua v. Assam State Trans. Corporation 1990 ACJ 46 (Gauhati). Rama Jois, J. (as he then was) sneaking for a Division Bench in Karnataka State Road Trans. Corporation v. Reny Mammen 1991 ACJ 403 (Karnataka), after referring to the text- books and different authorities in extenso including the observations of Hansaria, J. has concluded thus:
From the above conclusion, it follows that, 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.
12. We too are of the view 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.
13. Since the Tribunal has found that negligence on the part of the driver of the lorry is 75 per cent the liability of the driver, owner and the appellant insurance company has to be limited to that extent only of the total damages assessed by the Tribunal.
14. The remaining question is as to what is the remedy of the claimant in regard to the 25 per cent portion of the damages. The direction or observation permitting the appellant insurance company to realise 25 per cent from any other person or his insurer through civil suit is of no avail in view of Section 110-F of the Motor Vehicles Act, 1939 (which corresponds to Section 175 of the Motor Vehicles Act, 1988). Jurisdiction of the civil court stands barred with the constitution of a Claims Tribunal for the area concerned "to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area."
15. It was contended that the claimant, who failed to implead the driver and owner of the Trekker or its insurer as parties to the proceedings, has to suffer the consequences. But we are not inclined to cause a claimant to be visited by such drastic consequences for his omission to implead them initially. However, we may point out that in the Form prescribed for the claim application (to be filed before a Claims Tribunal for compensation) "necessary particulars in respect of the deceased/ injured, the vehicle, etc.," are to be supplied. Items 16 to 18 in the Form are meant to supply the particulars relating to vehicles. Those items are:
(16) Name and address of the owner of the vehicle.
(17) Name and address of the insurer of the vehicle.
(18) Name and address of the driver of the vehicle.
When a claimant alleges that two vehicles were involved in the accident, he is duty-bound to mention the names and addresses of the owners, insurers and drivers of both the vehicles. Rule 6 of the Kerala Motor Accidents Claims Tribunals Rules, 1977, provides that if the insurer is not impleaded as a party to the application as originally filed, or if the name of the insurer is not correctly given therein, applicant can make an application for appropriate amendment for the purpose of bringing the insurer on record.
16. Such an application for amendment is not affected by the period prescribed in Section 110-A (corresponding to Section 166 of the Motor Vehicles Act, 1988) for making the claim. In Basappa v. K.H. Sreenivasa Reddy 1982 ACJ (Supp) 585 (Karnataka), a Division Bench has held that there is no substance in the contention that some of the respondents who were added as parties only after the period of limitation (prescribed for making a claim petition) cannot be mulcted with any liability. When once the claim petition has been instituted within time at least with some of the relevant parties, addition of other necessary parties can be made later. The said view was followed by the Division Bench in Karnataka State Road Trans. Corporation v. Reny Mammen 1991 ACJ 403 (Karnataka). We too are in respectful agreement with the said view.
17. For the aforesaid reasons we remit these claims to the Tribunal with the following directions:
Claimant concerned shall supply the names and addresses of the driver, owner and/or insurer of the Trekker within such reasonable time as the Tribunal grants. Notice shall be issued to those persons to be heard in the matter. But the further enquiry shall be confined to the question whether the driver of the Trekker was negligent to any extent in the happening of the collision and if his negligence does not exceed 25 per cent it is open to the Tribunal to make appropriate directions in the awards. We make it clear that the liability already fixed for the appellant company shall not be reduced further. If claimant fails to supply such particulars within the reasonable time afforded by the Tribunal, it is open to the Tribunal to dispose of the claims in accordance with law without those parties.
Subject to the said observations and directions, the Tribunal shall pass fresh awards in these cases as expeditiously as possible.
Appeals are disposed of in the above terms.