Khenyei v. New India Assurance Co. Ltd.

The case analysis is written by Preeti Bafna, a second-year student of Unitedworld School of Law, Karnavati University. In this case, the author briefly explained the case of Khenyei v. New India Assurance Co. Ltd.

INTRODUCTION

It is a case of composite negligence where injuries have been caused to the claimants by the combined wrongful act of joint tortfeasors. In the case of an accident caused by the negligence of joint tortfeasors, all the persons who aid or counsel or direct or join in the committal of a wrongful act, are liable. In such a case, the liability is always joint and several. The extent of negligence of joint tortfeasors in such a case is immaterial for the satisfaction of the claim of the plaintiff/claimant and need not be determined by the court. However, in case all the joint tortfeasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at the appropriate stage. The liability of each and every joint tortfeasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tortfeasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.

Bench

H.L. Dattu, S.A. Bobde, Arun Mishra

Date Of Judgement

7 May, 2015

Case Number

CIVIL APPEAL NO.4244 OF 2015

Facts

On 29.7.2003, all the claimants were travelling in Bus No. NL-06/B/0027. At the relevant point of time, the Trailor truck was carrying iron beams and coming from the opposite direction and one iron beam came out of the body of the truck and this iron beam perforated right side of the body of the bus causing grievous injuries to a good number of passenger including the claimant. Accordingly, the injured persons filed the claim cases alleging that the driver of the Trailor-Truck was responsible for the aforesaid accident. It was specifically averred that the driver of the truck drove the vehicle in a rash and negligent manner. Besides this, as per the claim cases after investigation charge-sheet was also filed against the driver of the trailer truck.

Issues Before the Court

1. The question arises that whether a person is injured without any fault of his own, but by the combined effects of the negligence of two persons of whom the one is not responsible for the other?

2. The second question arises that what is the remedy of a tort feasor who has satisfied the award, but who does not know the particulars of the vehicle which was responsible for the accident?

Judgment

The court observes that it is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tortfeasors. In a case of accident caused by negligence of joint tortfeasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tortfeasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the court. However, in case all the joint tortfeasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tortfeasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tortfeasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.

A Full Bench of Madhya Pradesh High Court in Smt. Sushila Bhadoriya & Ors. v. M.P. State Road Transport Corpn. & Anr. Has also laid down that in case of composite negligence, the liability is joint and several and it is open to implead the driver, owner and the insurer one of the vehicles to recover the whole amount from one of the joint tortfeasors.

Held

In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.

(ii) In the case of composite negligence, apportionment of compensation between two tortfeasors the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

(iii) In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings.

(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.

Resultantly, the appeals are allowed. The judgment and order passed by the High Court is hereby set aside. Parties to bear the costs as incurred.

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