JUDGMENT R.M. Lodha, J.
1. By this common judgment, I intend to dispose of this group of five first appeals which arises out of the same accident though from separate claim petitions and separate awards. The only challenge in these first appeals is the correctness of the view taken by the Motor Accident Claims Tribunal in holding that the truck MHF-8740 was also being driven rashly and negligently at the time of accident and liable to pay 50% of the compensation awarded to the claimants.
2. For the sake of brevity and convenience, I am dealing with the facts of First Appeal No. 674 of 1988. The respondent Nos. 1 to 4 herein are original claimants. The respondent No. 5 and 6 are original opponent Nos. 1 and 2. The appellants herein are original opponent Nos. 3 and 4 while respondent No. 7 herein is original respondent No. 5. The opponent Nos. 1 and 2 are owner and driver of S.T. Bus No. MTD-9392. The opponent Nos. 3 and 4 are owner and driver of truck No. MHG-8740. The opponent No. 5 is the insurer of the said truck. The claimants filed claim petition before the Motor Accident Claims Tribunal, Solapur claiming compensation in the sum of Rs. 1,50,000/- on account of accidental death of Shri Vilas Anandrao Patil. Claimant No. 1 is the widow of deceased Vilas Anandrao Patil and Claimant No. 2 is the minor daughter. The claimant Nos. 3 and 4 are parents of the deceased. The claimants set up the case that on 28th April, 1985, deceased Vilas Patil was travelling in truck No. MHF-8740 as a bona fide passenger. At about 12:15 p.m. or so, the truck was proceeding from Lamboti towards Mohol and when the truck crossed the bridge on Seena river near Lamboti, the State Transport Bus No. MTD-9392 being driven by opponent No. 2 in high speed coming from the opposite direction collided with the truck. As a result of collision, Vilas Patil died on the spot and many others got injured. According to the claimants, the accident took place because of the rash and negligent driving of the truck as well as the State Transport bus. The deceased was about 29 years of age at the time of accident and was an agriculturist and labour contractor. The claimants estimated monthly income of the deceased at Rs. 2000/- and claimed compensation of Rs. 1,50,000/- due to untimely death of deceased Vilas Patil.
3. The opponent No. 1 filed written statement and traversed claimants' petition. The opponent No. 2 adopted the written statement of opponent No. 1. The opponent Nos. 1 and 2 thus denied that the S.T. Bus was being driven rashly and negligently at the relevant time or that opponent No. 2 was responsible for the accident in question. They set up the defence that the truck driven by opponent No. 4 and owned by opponent No. 3 came from the opposite direction and dashed against S.T. bus. According to them, the truck was being driven at high speed and rashly and negligently by opponent No. 4 and because of the impact there was considerable damage to the S.T. bus. In the alternative, the opponent Nos. 1 and 2 submitted that if ultimately, the negligence of driver of S.T. bus is held, then their liability should be restricted to 25% while 75% liability should be fastened on opponent Nos. 3 and 4. Opponent Nos. 3 and 4 filed separate written statement and denied that opponent No. 4 at the relevant time was driving the said truck rashly and negligently. They submitted that accident occurred due to rash and negligent driving of S.T. bus. The said opponent Nos. 3 and 4 denied that deceased was bona fide passenger and submitted that when the truck halted at tea stall of village Lamboti, some labourers got into the truck and when the truck was due to proceed, the deceased came running from left side of the truck and when the truck was in slow motion, he jumped into the truck despite the fact that opponent No. 4 did not allow him to board the truck. The opponent No. 5 filed separate written statement and denied claimants allegations made in the claim petition. The opponent No. 5 also set up the defence that the deceased was unauthorised and gratutious passenger travelling in the truck and he was not covered under the insurance policy. The opponent No. 5 insurer also submitted that opponent No. 4 driver was not holding valid driving licence to drive the truck.
4. The Claims Tribunal framed issues and after recording the evidence awarded compensation of Rs. 1,20,000/- to the claimants against opponent Nos. 1 to 4 holding opponent Nos. 1 and 2 on the one hand and opponent Nos. 3 and 4 on the other hand equally liable for the accident. The Claims Tribunal also awarded interest at the rate of 10% per annum from the date of accident. The claim petition was dismissed against opponent No. 5.
5. The accident occurred at Solapur-Pune road near Lamboti village on the Western side of the bridge of Seena river. The panchnama of the accident has been produced on record which is Exhibit 55. It transpires therefrom that at the place of accident, the road is east-west. The road is tar road and highway having width of 171/2 ft. There is kacchha road on both sides. On southern side, kacchha road is 5 ft. while on the northern side the kacchha road is 9 ft. in width. The panchnama records that tyre marks of backside wheel of truck were found for about 92 ft. on the western side. The S.T. bus was found standing on the eastern side at the distance of 150 ft. from the place of accident. Both the vehicles were found substantially damaged on their right side. These facts which are reflected from the panchnama indicate that both the vehicles which are heavy vehicles were coming from the opposite direction and were being run at high speed and dashed against each other on their right side because both the drivers failed to avoid accident. The S.T. bus appears to have stopped after about 150 ft. from the place of accident while the truck stopped after about 90 ft. From the oral evidence which has come on record also it is clearly seen that both the vehicles at the relevant time were running at high speed. The drivers of both the vehicles have been examined and both of them have blamed each other for the accident but their deposition is falsified on the face of panchnama. It is true that the Tribunal has accepted the explanation given by S.T. bus driver that because of the collision, both his legs were entangled in meter board and he was unable to control the bus, yet, it is clear that he was driving the bus on highway which was wide enough to avoid the accident from the vehicle coming from the opposite side but he did not take enough care. 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."
6. 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. The Tribunal has considered the entire evidence elaborately and I find myself in full agreement with the appreciation of evidence by the Tribunal.
7. The question then arises whether in the case of composite negligence, is it open to apportion the award.
8. 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.
9. 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.
10. 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."
11. In Drupad Kumar Barua v. Assam State Trans. Corpn. and others, 1990 A.C.J. 46, 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.
12. 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."
14. In Maharashtra State Road Transport Corporation and others v. Ramchandra Ganpatrao Chincholkar and others, 1992 Mh.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 v. Punjab State, 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 v. K.Ramakrishna Reddy and another, 1999 A.C.J. 606. 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.
15. In the light of the judgments of the Apex Court in Mallawwa (Smt.) and others v. 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.
19. Being concerned with a beneficial legislation like the one at hand, we would have normally preferred liberal interpretation, but the question is whether, without any extra premium having been paid, the owner of a goods vehicles can claim indemnification from the insurer just because once in a year the goods vehicle had carried a passenger for hire or reward along with the goods. This would perhaps robe the third proviso dealing with coverage of contractual liability lame.
22. Thus, to find out whether an insurer would be liable to indemnify an owner of a goods vehicles in a case of the present nature, the mere fact that the passenger was carried for hire or reward would not be enough; it shall have to be found out as to whether he was the owner of the goods, or an employee of such an owner, and then whether there were more than six persons in all in the goods vehicle and whether the goods vehicle was being habitually used to carry passengers. The position would thus become very uncertain and would vary from case to case. Production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy.
23. There is another aspect of the matter which had led us to differ from the Full Bench decision of the Rajasthan High Court. The same is what finds place in sub-section (2) of section 95. That sub-section specifies the limits of liability and Clause (a) deals with goods vehicle; and insofar as the person travelling in goods vehicle is concerned, it has confined the liability to the employees only. This is an indicator, and almost a sure indicator, of the fact that the legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicle, otherwise, Clause (a) would have provided a limit of liability regarding such persons also."
16. Thus, all these five first appeals are dismissed with no order as to costs.