Law of Torts

Composite negligence in case of road accident

The passage from Charlesworth on Negligence (6th Edition) page 520, para 871 states the following rule of road :-

“The rule of road is that when two vehicles are approaching each other from opposite directions, each must go on the left or near side of the road for the purpose of allowing the other to pass. Failure to observe this rule is prima facie evidence of negligence.”

  1. Both the drivers viz. the bus driver as well as truck driver owed a duty to take reasonable care to anticipate the common place factors and to go to the left side to such an extent that the other vehicle passed from a reasonably safe distance which they failed to do by not observing the primary rule of road and were, therefore, clearly guilty of negligent driving and because of their negligence, the accident occurred.

In Salmond’s Law of Torts, as regards joint tortfeasors the statement of law is that the 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.

In the Law of Torts by Street, 7th Edition, it is stated that several or separate or independent tortfeasors are of two kinds, either those whose tortious acts combine to produce the same damage or those whose acts cause different damages to the same plaintiff. The author has referred to Drinkwater v. Kimber, (1952) 2 K.B. 281, where a passenger in a motor car was injured in a collision between that car and another. Morris, L.J., said that the two drivers both of whom were negligent were separate tortfeasors whose concurrent acts caused injury to the female plaintiff.

In Winfield and Jolowicz on Tort, 13th Edition, the distinction between joint tortfeasors and several tortfeasors is stated thus –

“At common law tortfeasors liable in respect of the same damage were divided into joint tortfeasors and several tortfeasors. This distinction, formerly of importance, has been largely eroded by statute, as we shall see in a moment, but it remains of significance for one purpose and some account of it is necessary.

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. So, in Brooke v. Bool, 1928 (2) K.B. 578, where two men searching for a gas leak 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 but where two ships collided because of the independent acts 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, whose acts combined to produce a single harm, because there was no community of design.”

In Drupad Kumar Barua Vs. Assam State Trans. Corpn. and Others, , B.L. Hansaria, J., as he then was, considered the question of apportionment of liability in the case of composite negligence due to collision between bus and the truck coming from the opposite directions and after reference to various standard text books on Law of Torts viz. Fleming Law of Torts, 5th Edition, Salmond Law of Torts, 17th Edition, Street Law of Torts, 7th Edition and Winfield and Jolowicz Law of Torts, 10th Edition explained the law relating to joint tortfeasors 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 and it was held that in case of collision between bus and truck coming from opposite directions due to composite negligence of both the drivers, the two drivers cannot be regarded as joint tortfeasors but they are in law, several tortfeasors.

The Division Bench of Karnataka High Court in Karnataka State Road Transport Corporation v. Reny Mammen and others, 1991 Act 403, followed the aforesaid judgment of Gauhati High Court. It was held that in the accident caused by composite negligence of drivers of two vehicles, liability of the each driver/owner shall be separate and distinct and their liability for compensation must be apportioned in the proportion of their respective negligence. It was, further, held that they are not joint tortfeasors but several tortfeasors and each is answerable for the damages to the extent of his negligence. In para 20 of the report, the Division Bench held thus-

“20. But is that the position in the case of a motor accident which takes place on account of rash and negligent driving of more than one vehicle by the respective drivers of the vehicles? It is not a case of concerted or joint action on the part of the drivers/owners concerned, with consent or co-operation as between/among them, though it results in single damage to a third party. In such a case they are really several tortfeasors, and therefore, the liability of the drivers has to be to the extent of negligence of each one of the drivers and therefore he is answerable to the claim only to that extent and not more and constitutes the vicarious liability of his master/owner of the vehicle, if any, also in the same proportion. The liability of one cannot be foisted on the other.”

In para 22 in the case of Reny Mammen, the Division Bench of Karnataka High Court further held thus –

“22. 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 and independent act of rash and negligent driving of the respective vehicles resulted in a common harm or injury and from this it logically follows that it becomes the duty of the Tribunal to record a finding regarding proportion of negligence and apportion the compensation awarded on that basis and specify the liability of each set of the parties, namely, the driver, owner and insurer of each of the vehicles separately.”

In Maharashtra State Road Transport Corporation and others v. Ramchandra Ganpatrao Chincholkar and others, 1992 M.L.J. 1156, the Division Bench of this Court also held that in case of composite negligence of the drivers of two vehicles, section 110-B of the Motor Vehicles Act mandates the Tribunal not only to determine the amount of compensation but also to specify the amount payable by the insurer or the owner, or the driver of the vehicle involved in the accident or by all or any of them. The Division Bench followed the judgment of Punjab and Haryana High Court in the case of Narinderpal Singh Vs. Punjab State and Others, wherein it was held that such apportionment is in the interest of justice and every Tribunal is duty bound to apportion the compensation, make the complete determination of all the rights involved in the matter and not subject the joint tort feasors to fresh litigation for determining their inter se liability. It may be noted that in Ramchandra’s case it has been held that in a case of composite negligence of the drivers of the two vehicles, their liability is joint and several which is not supported by various standard books on torts viz. Fleming Law of Torts, Street Law of Torts, Salmond Law of Torts and Winfield and Jolowicz Law of Torts and also appears to be a view in conflict with the judgment of Guwahati High Court in Drupad Kumar Barua (supra), Division Bench judgment of Karnataka High Court in Reny Mammen (supra) and also the judgment of Andhra Pradesh High Court in R. Balanarasamma and Others Vs. K. Ramakrishna Reddy and Another, . The Division Bench in Ramchandra’s case did not go into the question whether in case of composite negligence of drivers of two vehicles, they are joint tortfeasors or several tortfeasors but proceeded on assumption of law as settled that they are joint and several tortfeasors. However, suffice it to observe that there is consensus amongst various High Courts including the judgment of the Division Bench of this Court in Ramchandra’s case (supra) that in a case of composite negligence to avoid multiplicity of proceedings, the Tribunal is competent to apportion the compensation in the proportion of their respective negligence. I, therefore, have no doubt in holding that in a case of composite negligence when the drivers of two vehicles are responsible for the cause of accident, the Tribunal is competent to apportion the liability in the proportion of the respective negligence of the drivers. In the present case, in the facts and circumstances of the case which have already been noted above, the Tribunal cannot be said to have erred in apportioning the negligence of the drivers of both the vehicles at 50% each. The Tribunal has justifiably apportioned the liability of drivers of each vehicle at 50% and I have no justifiable reason to take the different view.

In the light of the judgments of the Apex Court in Smt. Mallawwa Etc. Vs. The Oriental Insurance Co. Ltd. and Others, , the learned Counsel for the appellants could not demonstrate any error in the award passed by the Tribunal absolving the opponent No. 5 insurer from any liability. In Mallawwa and others, the Apex Court has ruled that insurer of the goods vehicles is not liable to pay compensation for the death of persons travelling in goods vehicle whether he is owner of the goods or passenger on payment of fare or gratuitous passenger. The Apex Court held thus –

“10. For the purposes of section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers were carried if the vehicle was of that class. Keeping in mind the classification of vehicles by the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions as a vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso (ii) to section 95(1)(b), the correct test to determine whether a passenger was carried for hire or reward, would be whether there has been a systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. The High Courts have expressed divergent views on the question whether a passenger can be said to have been carried for hire or reward when he travels in a goods vehicle either on payment of fare or along with his goods. It is not necessary to refer to those decisions which were cited at the Bar as we find that all the relevant aspects were not taken into consideration while expressing one view or the other. We may only refer to the decision of the Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa where Hansaria, J., speaking for the Full Bench observed as under :–

“18. The aforesaid is not enough to take any view as to whether goods vehicle can or cannot come within the fold of proviso (ii) with which we are concerned. Our primary reason for differing, with respect, with the Rajasthan Full Bench is that allowing a goods vehicle to be taken within the fold of proviso (ii) would introduce uncertainties in law as that would depend upon various factors to which we shall advert; the result would be that the law would cease to be certain which it has to be at least in a case of the present nature. We have said so because reference to the definition of goods vehicle shows that the first part of it does not deal with carrying of passengers. It is the second part which speaks about the same and that too when the vehicle is used for such a purpose. The word use has been defined in Chamber’s English Dictionary in its intransitive sense to mean to be accustomed; (to; used chiefly in the past tense); to be in the habit of so doing; to resort. Reference to the meaning of this word, as given in Black’s Law Dictionary, 5th Edn., would show that even one user may amount to use or it may be that for a thing being said to be used, it has to be employed habitually.


Categories: Law of Torts

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