Composite Negligence II

Hon’ble Justice Arun Mishra just quoted Hon’ble Justice Arun Mishra.

My Lord, What is the law in the case of an accident arising out of composite negligence?

The law in the case of an accident arising out of composite negligence has been considered by a 3 Judges’ Bench of this Court in Khenyei v. New India Assurance Co. Ltd., AIR 2015 SC 2261 wherein the following propositions have been laid down:

“(i) 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 vis a vis 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.”

Hon’ble Justice Arun Mishra, Kamlesh v. Attar Singh, 2015 (12) SCALE 49.