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17. Sri C. R. Krishna Rao appearing for the appellant in C.M.A. No. 398 of 1964 contended that the driver of the scooter has been impleaded qua-driver and not as owner of the scooter and that under the provisions of Chapter VIII of the Motor Vehicles Act dealing with insurance of motor vehicles against third party risks the duty of the owner of the scooter to insure the vehicle against third party risks does not cover the case of a pillion rider carried gratuitously, that the driver of the scooter is not a necessary party to the claim and that the claim for damages or compensation against the driver of the scooter could not be determined by the Claims Tribunal., The Tribunal has found that the Oriental Fire and General Insurance Company is not liable to the claimant by reason of its having issued an insurance policy to the owner of the scooter covering third party risks for the reasons stated in paragraph 24 of its judgment. The policy granted by the Insurance company in respect of the scooter has not been produced in this case. There is thus no evidence to show that the insurance of the scooter covers any liability to persons carried on the pillion seat. Under Section 95 (1) of the Motor Vehicles Act a policy of insurance must be a policy which.

23. Sri C.R. Krishna Rao urged that the claimant was only a licensee as he was carried gratuitously by the driver of the scooter and that the duty of the owner of the scooter was that owed by an occupier of premises to a licensee, namely to warn the licensee of any concealed danger of which he knows. As pointed out in " Winfield on Tort ", Seventh Edition, at page 285, the distinction between invitees and licensees has for all practical purposes been abolished following the recommendation of the Law Reform Committee and the passing of the Occupiers' Liability Act, 1957, in England. In Harris v. Perry & Co. L.R. (1903) 2 K.B. 219 at 225, it is pointed out that the measure of duty towards a bare licensee is different, where the licensor accepts the duty of carrying him, from what it is where he merely permits him to pass through his premises. At page 226 of the same decision, the distinction is clearly emphasised in the following terms:

Hence the fact that the driver-cum-owner of the scooter carried the claimant gratuitously cannot absolve him of his liability for his negligence.

24. The next question to be considered is whether the damages payable by the driver, owner and insurer of each of the vehicles could be apportioned on the basis of respective negligence of the drivers of the two vehicles. In State of Punjab v. Phool Kumari it has been held that where by the fault of two or more persons damage is caused, the liability to make good the damage or loss shall be proportionate to the degree to which each person was at fault. The said decision of a single Judge of the Punjab High Court proceeds on the authority of Lang v. London Transport Executive 6 as justifying the apportioning of liability among tort-feasors. But it should be noted that the common law of England that such damages should not be apportioned except in cases coming within the admiralty jurisdiction, was changed by a statute in England in 1935 when Married Women and Tort-Feasors Act, 1935 (25 and 26 Geo. V. C. 30) was passed. In ' Winfield on Tort' Seventh Edition, at page 766 it is stated that in a judgment against joint-tort-feasors the damages awarded must be for a single sum without any apportionment among the defendants and execution for the whole of this amount can, if the plaintiff sees fit, be levied against one only of the defendants and that until the Act of 1935 the general rule was that he could get neither an indemnity for the whole of what he had paid nor contribution of an aliquot part of it. The learned author has pointed out that this Was laid down in. Merryweather v. Nixan (1799) 8 T.R. 186, and was extended from joint-tort-feasors to independent tort feasors causing the same damage. In Nawal Kishore v. Rameshwar , it has been. pointed out that the Courts in India act on the principle of equity, justice and good conscience in matters which are not covered by statute and rely upon the principles established under the English Law to find out what the rule of justice, equity and good conscience is. It has been held in that decision that clause 6 (1) (b) of the Married Women and Tort-feasors' Act of 1935 is not necessarily based on any principle of equity justice or good conscience and there is no justifiable reason why in the subsequent suit, if more than one suit is brought for damages against different persons, the plaintiff should be restricted to the amount decreed against one tortfeasor in his suit against the other joint tort-feasors against whom the cause of action is not only joint, but joint and several. It should be observed that the principle of justice, equity and good conscience do not go varying in India every time the common law is amended by a statute in England. In Krishnaswami v. Narayanan I.L.R. (1939) Mad. 306 : (1939) 1 M.L.J. 143 : A.I.R. 1939 Mad. 261, Varadachariar, J., held that there could be no apportionment of liability in cases like the present one. If we were at all compelled to apportion the liability between the owners of the lorry and the scooter on the basis of English decisions rendered after the Married Women and Tort-feasors Act of 1935, we would be inclined to hold the owner of the lorry to be mainly responsible for the collision end make him liable for 9/10th of the damages and make the owner of the scooter liable only for the remaining 1/10th. But in view of the above decision no such apportionment can be made.