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26. It may be seen from the decisions cited in the preceding paragraph that except in the case of Nanjamma, , decided by a Division Bench of this court, the common basis on which all those cases were decided was that, in the case of joint tortfeasors, the liability was joint and several. In fact, this position in law is too well settled. The decisions, however, proceeded on the basis that when an accident occurs as a result of rash and negligent driving of more than one motor vehicle, the drivers and the owners of all the vehicles are joint tortfeasors and, therefore, their liability to pay compensation is joint and several. Even so, in the second category of cases, the proportion of negligence was fixed, though apportionment of compensation was not made. In the third category of cases, even the apportionment was made. In some of the cases, the distinction between contributory negligence and joint tortfeasors was pointed out of the effect that contributory negligence means the negligence of the injured/claimant and of the tortfeasor together resulted in the accident and, therefore, the liability of the tortfeasor gets reduced in proportion to the negligence of the claimant, whereas, in the case of joint tortfeasors, the liability of each is total, joint and several. But in none of these cases, as pointed out by learned counsel, the two precise questions of law raised in these appeals have been considered. In the case of Nanjamma, , the earliest Division Bench decision of this court, though there is no specific discussion and decision on the question whether, in such cases, the drivers/owners of each of the vehicles are several tortfeasors, the view taken that the apportionment must be made shows that such was the basis to which we shall refer later. As far as the second question is concerned, it has been considered by the Punjab and Haryana High Court in the case of Narinder Pal Singh v. Punjab State , in which the view taken is that even though in such cases the liability of the owners and insurers of the vehicles the use of which resulted in the accident which gave rise to the application under section 110A claiming compensation is joint and several it is obligatory for the Tribunal to apportion the liability between them so that if one of them pays the entire amount, he could recover the amount payable by the other from him. To a large extent, this decision supports the contention of the appellant on the second question to which we shall refer in great detail later while considering the second question.

(iii) Take a case where owners of two neighbouring houses agree to cut and remove an old tree standing in between their houses and entrust the job to any person and on account of negligence of the said person, a third person moving in the street is injured by the fall of a branch of the tree on him, the owner of the two houses would be joint tortfeasors.
(iv) Similar would be the position if the owners of two motor vehicles agree to participate in a motor race and, in the course of racing, an accident is caused in which both the vehicles are involved resulting in death or injury to, a third person, the owners of the two vehicles would be joint tortfeasors. In such cases it is open for the claimant to sue one of the tortfeasors or all the tortfeasors and the court also has to pass a decree which is answerable by the joint tortfeasors jointly and severally if all of them are joined as defendants in the case. Further, if an action is filed against one of the joint tortfeasors or after a decree is passed against more than one tortfeasor, the decree is executed against one of the joint tortfeasors, the course open to the joint tortfeasor who answered the liability or paid the damages is for taking action for contribution against other joint tortfeasor. Thus, it may be seen that what makes more than one person to become joint tortfeasors is the concerted or joint action on their part as a result of which injury is inflicted against an individual. Once concerted or joint action on their part is found to exist they are joint tortfeasors and their liability in law is both joint and several.

31. We receive full support for our view from the decision of Hansaria J. of the Assam High Court (as he then was) in the case of Drupad Kumar Barua v. Assam State Transport Corporation [1990] ACJ 46. The relevant portion of the same reads (page 52) :

"16. The important question is whether the present was a case of causing injury to the claimant as joint tortfeasors or were the wrongdoers several tortfeasors. A reference to standard textbooks on law of torts shows that a tort is imputed to several persons as joint tortfeasors in at least three instances, vi., (1) agency, (2) vicarious liability, and (3) concerted action. For the case at hand the first two instances are not applicable. As to the third the critical element is that those participating in the commission of the tort must have acted in furtherance of a common design. To put it differently there must be 'concerted action to a common end, not merely a coincidence of separate acts which by their conjoined effect causes damage'. Broadly speaking, this means a conspiracy with all participants acting in furtherance of the wrong though it is probably not necessary that they should realise that they are committing a tort. This is how the law has been put at page 237 of Fleming's Law of Torts, 5th edition. In Salmond's Law of Torts this aspect has been dealt with at page 442 of the 17th edition. As per Salmond persons are deemed to be joint tortfeasors whenever they are responsible for the same tort, that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or more persons at once. This happens in at least three classes of cases, namely, agency, vicarious liability and concerted action, i.e., where a tort is committed in the course of a common action; a joint act is done in pursuance of a concerted purpose. For example, in Brooke v. Bool [1928] 2 KB 578, the defendant, accompanied by one Morris, entered premises occupied by the plaintiff in order to search for an escape of gas. The defendant examined a gas pipe with a naked flame. Morris followed his example and the resultant explosion damaged the premises. The defendant was held responsible for the act of Morris. 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 the conjoined effect causes damage.

19. The law relating to joint tortfeasors may thus be explained by stating that except in case of agency or vicarious liability or imposition of joint duty, the tortfeasors must act in furtherance of common design or concerted action to a common end to be regarded as joint tortfeasors. To give an analogy which is well-known in criminal law joint tortfeasors would be those who act as stated in section 34, Indian Penal Code, in furtherance of the common intention or in prosecution of the common object of which mention has been made in section 149, Indian Penal Code.