2014 (1) TMI 1940

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....sion of the High Court of Punjab and 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 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 Pars....

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....t 30%. Accordingly, the High Court held that in respect of the death of Yogesh, compensation of 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% o....

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....pondent No. 1 has argued that even if the view taken by the High Court that 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 and 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 ....

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.... 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 been explained in T.O. Anthony (supra) followed in K. Hemlatha and Ors. (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted ....

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.... 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 fil....