(1.) THIS case is referred to the larger Bench to settle the question whether apportionment is permissible in case of composite negligence. This Court has decided a number of cases on the question of composite negligence and due to divergent view pertaining to composite negligence, the dispute is referred to the larger Bench.

(2.) FIRST case decided on this question is Manjula Devi Bhuta v. Manjusri Raha and Ors. , 1968 ACJ 1 MP. In this case, the Court considered types of negligence including composite negligence and contributory negligence and after considering the difference between contributory negligence and composite negligence, it is held that when the victim has suffered injuries or death is caused on account of act of two vehicles without his fault, then the claimant is free to choose any of the joint tort-feasors and claim compensation from him. While considering this aspect, it is held that in our view where as a result of collision between two motor vehicles, a person other than their driver, is injured, the Tribunal will not fix contribution as between persons liable (apart from specifying the liability of the insurer).

(3.) IN the case of Gujarat State Road Transport Corporation v. Shardabai and Ors. , 1997 ACJ 649, Division Bench of this Court while interpreting the judgment in the case of Manjula Devi Bhuta (supra) has held that the claimant has right to recover whole amount of the compensation from the owner of one vehicle without impleading the owner and driver and insurance company of the other vehicle.

(4.) IN the case of Vimla Gangotiya v. National Insurance Co. Ltd. and Ors. , 1995 ACJ 53 [LQ/MPHC/1994/243] , it is held that it is proper to apportion the inter se liability and specify the amount payable by the two tort-feasors, while interpreting the judgment in the case of Manjula Devi Bhuta (supra).

(5.) IN the case of National Insurance Co. Ltd. v. Chand Ratan, 2001 (3) M. P. H. T. 130 (DB) = 2001 (2) MPLJ 299 [LQ/MPHC/2001/60] , it is held that in composite negligence, both tort-feasors are severally and jointly liable to pay the compensation to the claimant. It is the discretion of the claimant to proceed against both the tort-feasors or against one. The remedy of the tort-feasors who is proceeded against is to recover the amount from the other tort-feasor. The liability of inter se tort-feasors can be decided to avoid the multifariousness of the proceedings. However, while considering the case of Manjula Devi Bhuta (supra) it is held in Para 6-A of the judgment that while referring to the decision of this Court in Manjula Devi Bhuta and also on the observations made in Law of Torts second edition 1992 by Justice G. P. Singh that in composite negligence, apportionment of compensation between two tort-feasors is not permissible. While referring to the judgment in the case of Kirti and Anr. v. Rajendra and Ors. , 2000 ACJ 663 [LQ/MPHC/1998/434] , wherein it is held that in composite negligence, the amount of compensation can not be apportioned and the claimants can not be directed to proceed to recover the apportioned amount from each vehicle. After referring to this judgment, it is held that liability of tort-feasors inter se can be decided.

(6.) IN the case of Hullanbai and Ors. v. Jagdish Prasad and Ors. , 1991 ACJ 198, Division Bench of this court has held that apportionment of inter se liability is permissible and liability was apportioned. While deciding the composite negligence, it is held that every wrongdoer is liable and it docs not lie in the mouth of one wrongdoer to say that though I am also responsible, yet the other man was also equally responsible for the wrong and on this basis, he can not avoid the liability. It is further held that normally in the case of composite negligence, it is not possible to fix the liability among the different drivers but both are jointly and severally liable to the claimant because they arc joint tort-feasors. However, in Para 17, it is held that the liability for payment of the amount of the award of the truck owner, the Insurance Company and the truck driver shall be half of the award and shall be joint and several but the amount will be payable by the Insurance Company.

(7.) FULL Bench of Guwahati High Court in the case of Hira Devi v. Bhaba Kanti Das, 1977 ACJ 293 has held that in case of composite negligence, liability of compensation can not be apportioned in the ratio of respective negligence of both the vehicles.

(8.) NOW the question involved is in the case of composite negligence, whether there can be apportionment of negligence of joint tort-feasors.

(9.) COMPOSITE negligence is defined where injury is caused by the wrongful act of two parties, the plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules as to remoteness of damage, the plaintiff is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution of indemnity as between those persons, though in any case he can not recover on the whole more than his whole damages. He has right to recover full amount of damages from any of the defendants as held in the case of Palghat Coimbatore Transport Co. Ltd. v. Narayanan, ILR 1939 Mad. 306 and Sushma Mitra v. M. P. State Road Transport Corporation, 1974 ACJ 87 (MP).

(10.) IN the cases of joint tort-feasors, i. e. , all the persons who aid, or Counsel, or direct or join in the committal of a wrongful act, are joint tort-feasors. It is held that joint tort-feasors are jointly and severally liable for the whole damage resulting from the tort. They may be sued jointly or severally. If sued jointly, damages may be levied from all or either. Both of them are responsible, for the injury sustained by their common act. However, in the case of composite negligence, plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. He is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case, he can not recover on the whole more than his whole damage. He has a right to recover the full amount of damages from any of the defendants. The principles of composite negligence and apportionment have been considered in the cases of Pujamma v. G. Rajendra Naidu, AIR 1985 Mad. 109, Prasani Devi v. State of Haryana, (1973) ACJ 531 (P and H), and Hira Devi (supra).

(11.) QUESTION of liability of joint tort-feasors was considered by the Apex Court in the case of Khushro S. Gandhi v. N. A. Guzder, AIR 1970 SC 1468 [LQ/SC/1968/372] . It is held that in case of joint tort-feasors, in order to release all the joint tort-feasors, the plaintiff must receive full satisfaction, or which the law must consider as such, from a tort-feasors before other joint tort-feasors can rely on accord and satisfaction. The rule which is in consonance with equity, justice and good conscience would recognise that liability of tort-feasors is joint and several. What is full satisfaction would depend on the facts and circumstances of each case. Apex Court referred to the English and American law in Paragraphs 11 and 16 of the judgment. Apex Court then considered the ratio laid down in the case of Makhanlal Lolaram v. Panchamal, AIR 1934 Nag. 226, wherein Vivian Bose, AJC (as He then was) held as under:" an accord and satisfaction in favour of one joint tort-feasors operates in favour of them all. " and it is held that the liability of the joint tort- feasors is joint and several.

(12.) IN the case of Tamil Nadu State Transport Corporation, Tanjore v. Natarajan and Ors. , (2003) 6 SCC 137 , [LQ/SC/2003/597] question of negligence of the claimant who himself was driving the vehicle was considered and it is held that when the claimant himself was driving the Corporation's bus and was found negligent to the extent of fifty per cent for causing the accident, therefore, the Corporation as the employer could not be held vicariously liable for the negligence of the claimant himself. Once the claimant has exercised option of approaching the Claims Tribunal under the Motor Vehicles Act against the owner and insurer of the private bus, he did not file any claim under the Workmen's Compensation Act and since the Corporation was not at fault and the accident was caused because of the contributory negligence of the drivers of both the buses, the Corporation could not be held to be liable under the provisions of Motor Vehicles Act. It was not the claim based on "no fault liability". Moreover, the claimant has stated that he has been given compassionate appointment on suitable alternative job and he never desired to obtain any other compensation from his employer. The liability of another vehicle was held to be fifty per cent on account of contributory negligence.

(13.) IN the case of Municipal Corporation of Greater Bombay v. Laxman Iyer and Anr. , 2004 ACJ 53 "contributory negligence" is explained referring to the book of Charlesworth on Negligence, 3rd Edn. Para 328.

(14.) IN the case of Gujarat State Road Transport Corporation v. Union of India, AIR 1988 Gujarat 13, it is held that in the cases of composite negligence of the driver of the motor vehicles of some outside agency, the Claims Tribunal can entertain claim against joint tort-feasors also besides claim against motor driver, owner of motor vehicles and its insurer. It is held that when there are joint tort-feasors, then claim petition under Section 110 (1) of the Motor Vehicles Act can not be entertained and it is held that when outside agency was also responsible in causing the accident by rash and negligent use of motor vehicle, then outside agency can be treated as joint tort-feasors. Claims Tribunal can pass award only against one of the joint tort-feasors, i. e. , driver of the motor vehicles alongwith its owner and insurer as the case may be, so far as other tort-feasors are concerned, the claimant must be driven to Civil Court for establishing his claim against other joint tort-feasors, it is likely to result into conflicting decisions of two component forums in connection with the same accident based on the same set of facts. It is further held that when the tort-feasors is the driver of the motor vehicle, either sole or joint, with any one else, so far as inter se liability of the driver of the offending vehicle and the insurer is concerned, it is to be specified by the Tribunal so that their respective shares in the contribution of compensation can be clearly demarcated.

(15.) BOMBAY High Court in the case of New India Assurance Co. Ltd. v. Kamlabai and Ors. , 1994 ACJ 519 [LQ/BomHC/1993/406] , has held that both the drivers of both the vehicles were equally responsible for the accident in the sense that either of them was rash and negligent in driving his respective vehicle and it is held that it would be proper to apportion the liability for payment of compensation equally on the respective owners of the vehicles and consequently on the insurance company.

(16.) ANDHRA Pradesh High Court in the case of Depot Manager, Andhra Pradesh State Transport Corporation v. Ramisetty Koteshwar Rao and Ors. , 2000 ACJ 1182 [LQ/TelHC/1998/93] , has modified the apportionment of liability to 50-50 percent. Single Bench of the Delhi High Court has also apportioned the quantum of compensation between joint tort-feasors.

(17.) BOMBAY High Court in the case of Maharashtra State Road Transport Corporation v. Ramchandra Ganpatrao Chincholkar, 1993 ACJ 165, in the case of composite negligence has determined the inter se liability in the ratio of 2 :1 for the truck driver and bus driver respectively. However, in Para 12-A of the judgment it is held that the Claims Tribunal ought to have apportioned inter se liability of joint tort-feasors in case of composite negligence in the interest of finality and to avoid multiplicity of proceedings.

(18.) CONSIDERING all the aforesaid judgments two questions required to be determined : (i) whether the owner, driver and insurer of both the vehicles are necessary party in the claim petition ; and (ii) whether there can be apportionment of the liability of joint tort-feasors

(19.) POLLOCK in the Law of Torts, Fifteenth Edition has explained the injury by composite negligence at page 361 which is reproduced below : another kind of question arises where 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. It has been supposed that A could avail himself, as against Z who has been injured without any want of due care on his own part, of the so-called contributory negligence of a third person B. It is true you were injured by my negligence, but it would not have happened if B had not been negligent also, therefore, you can not sue me, or at all events not apart from B. Recent authority is decidedly against allowing such a defence, and in one particular class of cases it has been emphatically disallowed. It must, however, be open to A to answer to Z: You were not injured by my negligence at all, but only and wholly by B's. It seems to be a question of fact rather than of law (as, within the usual limits of a jury's discretion, the question of proximate cause is in all ordinary cases) what respective degrees of connection, in kind and degree, between the damage suffered by Z and the independent negligent conduct of A and B will make it proper to say that Z was injured by the negligence of A alone, or of B alone, or of both A and B,. But if this last conclusion be arrived at, it is now quite clear that Z can sue both A and B. At page 362 Author has observed as : "the strict analysis of the proximate or immediate cause of the event: the inquiry who could last have prevented the mischief by the exercise of due care, is relevant only where the defendant says that the plaintiff suffered by his own negligence. Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled- of course, within the limits set by the general rules as to remoteness of damage- to sue all or any of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he can not recover in the whole more than his whole damage. " 19-A. Adverting to the provisions of the Motor Vehicles Act, Section 166 of the Motor Vehicles Act provides that an application for compensation shall be filed by the person who has sustained injuries or by the owner of the property or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Application shall be made on the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides. It will be appropriate to refer to Sub-section (1) of Section 168 which is reproduced below:

"on receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an enquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. "

Thus, Sub-section (1) of Section 168 provides that when an application has been made under Section 166, Claims Tribunal shall after giving notice of the application to the insurer and after giving the parties including the insurer of an opportunity of being heard will hold an enquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make award determining the amount of compensation which appears it to be just specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Thus, it is the duty of the Tribunal to issue notice to the parties and pass award after affording opportunity of hearing to the parties.

(20.) RULES for filing the application are framed known as Madhya Pradesh Motor Vehicles Rules, 1994. Rule 220 provides for application for compensation arising out of an accident. It is provided that an application for compensation shall be filed in the form M. P. M. V. R.-75. Application for compensation under Rule 220 (1) of the aforesaid Rules contains 22 Paragraphs. Paragraph 15 provides for name and address of the owner of the vehicle. Para 16 relates to name, policy number insurance particulars and address of the insurer of the vehicle. Paragraph 17 relates to any claim lodged with the owner/insurer and its result.

(21.) QUESTION involved in the appeal is whether it is necessary to implead both the tort-feasors. Section 170 of the Motor Vehicles Act provides that where in the course of any inquiry, the Claims Tribunal is satisfied that there is collusion between the person making the claim and the person against whom the claim is made or the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in Sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.

(22.) WHILE considering the question of composite negligence in the case of Union of India v. United India Insurance Co. , (1997) 8 SCC 683 , [LQ/SC/1997/1400] it is held that jurisdiction extends to other joint tort-feasors as well, provided the claims against them also arise out of use of motor vehicle. In case of a motor vehicle accident on being hit by a train at an unmanned level-crossing, Tribunal has jurisdiction to entertain claim against Railways, in addition to claims against the insurer, owner or driver, but where the accident occurred due to sole negligence of any person other than the insurer, owner or driver, such as negligence of the Railways, the claim would not be entertainable by the Tribunal. While interpreting the scope of Sections 110 (1) and 110-B of the Motor Vehicles Act, 1939, it is held that claim on the basis of composite negligence of driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of cases, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110 (1) of thebecause the case would then become one of exclusive negligence of Railways.

(23.) IN the present case, claimants have impleaded owner and driver of only one offending vehicle and has not impleaded driver and owner of the other vehicle. In our opinion, in the cases of joint lort-feasors when the liability is joint and several, it is the choice of the claimant to implead either driver, owner and insurer of both the vehicles, or of one vehicle and recover, the whole amount of compensation from one of the tort-feasors. It is not necessary for him to implead both the tort-feasors. He can implead only one of them as per his choice. Claim petition can not be defeated on the ground of non- impleading the owner, driver and insurance company of other vehicle, partly because the intention of the Legislature is that the Claims Tribunal should issue notice to the owner, driver and insurer of the offending vehicle/vehicles.

(24.) NEXT question involved in the case is whether there can be apportionment In the cases of joint tort-feasors, it is difficult to determine the extent of liability of each tort-feasor and it will not be possible to apportion the ratio of negligence of the joint tort-feasors. In the case of composite negligence or in the cases of joint tort-feasors arising out of the use of motor vehicle, award can be passed against both or any one of them for the entire amount because the injured is not in a position to quantify or qualify the apportionment of each vehicle. Since he has suffered injury on account of use of motor vehicles, both the motor vehicles will be jointly and severally liable to pay the compensation. It is the choice of the claimant to sue both or may claim compensation from one of the joint tort- feasors as their liability is joint and several. Once the negligence and compensation is determined, it is not permissible to apportion the compensation between the two, as it is difficult to determine the apportionment in the absence of the drivers of the vehicles appearing in the witness box. Therefore, there can not be any apportionment of the claim between the joint tort-feasors.

(25.) WHEN injury is caused as a result of negligence of two joint tort-feasors, claimant is not required to lay his finger on the exact person regarding his proportion of liability. In the absence of any evidence enabling the Court to distinguish the act of each joint tort-feasor, liability can be fastened on both the tort-feasors jointly and in case only one of the joint tort-feasors is impleaded as party, then entire liability can be fastened upon one of the joint tort-feasors. If both the joint tort-feasors are before the Court and there is sufficient evidence regarding the act of each tort-feasors and it is possible for the Court to apportion the claim considering the exact nature of negligence by both the joint tort-feasors, it may apportion the claim. However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tort-feasors. In such cases, joint tort-feasors will be jointly and severally liable to pay the compensation.

(26.) ON the same principle, in the case of joint tort- feasors where the liability is joint and several, it is the choice of the claimant to claim damages from the owner and driver and insurer of both the vehicles or any one of them. If claim is made against one of them, entire amount of compensation on account of injury or death can be imposed against the owner, driver and insurer of that vehicle as their liability is joint and several and the claimant can recover the amount from any one of them. There can not be apportionment of claim of each tort- feasors in the absence of proper and cogent evidence on record and it is not necessary to apportion the claim.

(27.) TO sum up, we hold as under:

(i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles. Claimant may implead the owner, driver and insurer of both the vehicles or anyone of them. (ii) There can not be apportionment of the liability of joint tort-feasors. In case both the joint tort-feasors are impleaded as party and if there is sufficient material on record, then the question of apportionment can be considered by the Claims Tribunal. However, on general principles of Jaw, there is no necessity to apportion the inter se liability of joint tort-feasors.

(28.) REFERENCE is answered accordingly. Appeal be placed before appropriate Bench for hearing.