Arijit Pasayat, C.J. 1. In this appeal under Section 110-D of the Motor Vehicles Act, 1939 (in short, the Act), appellants (hereinafter referred to as 'claimants') in respect of a claim under Section 110A of the Act have challenged the judgment of the Motor Accidents Claims Tribunal, Kottayam (in short, the Tribunal) in so far as it relates to apportionment of liability, after recording a finding of composite negligence.
2. Factual position is as follows:- Compensation was claimed by claimants on the death of one V.K. Joseph (hereinafter referred to as deceased), who lost his life in an automobile accident on 30.4.1987. Two vehicles, bearing registration number KRO 2848 and KLA 340, were involved in the accident. Claimants' case was that KRO 2848 (bus) came at a high speed from behind KLA 340 (car) and while overtaking the same, hit against the deceased, as a result of which, he sustained severe injuries. Before KRO 2848 hit the deceased, KLA 340 dashed against back of deceased, who was thrown away and at that point of time, the other vehicle hit him. Deceased, though taken to hospital, succumbed to injuries sustained on account of the accident. He was aged 34 years and was getting Rs. 1000/- per mensem. A claim of Rs. 2,00,000/- was made against owners of offending vehicles along with New India Assurance Co. Ltd. (hereinafter referred to as 'insurer'). It is to be noted that vehicle KRO 2848 was subject matter of insurance and a policy covering the period of accident was issued by insurer. Tribunal on consideration of evidence, held that owners of both the offending vehicles were responsible and liable to pay compensation. An award of Rs. 1,65,000/- together with interest at the rate of 12% from the date of petition, was passed. As the vehicle KLA 340 was not the subject matter of insurance, it was held that owner of the vehicle was to pay compensation. As the insurer had undertaken to indemnify compensation in respect of the other vehicle, it was held that compensation was to be paid equally by the owner of the vehicle and the insurer.
3. It was urged on behalf of claimants that since owners of two vehicles were liable, it could not have been directed by the Tribunal that owner of the vehicle and the insurer were to pay half each. It was the option of claimants to get the amount from either of the tort-feasors, and how one would recover balance compensation was solely within the discretion of claimants, and that should not have been restricted. Learned counsel for the insurer submitted that Tribunal was within its jurisdiction to direct payment of part compensation by insurer.
4. We shall first deal with the plea relation to the question whether there was contributory negligence. Though there is no statutory definition, in common parlance, 'negligence' is categorized as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a decree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. Idea of negligence and duty are strictly co-relative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence various under different conditions, and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an Act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, crucial question on which liability depends would be whether either party could be exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be reasonable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning (see Charlesworth on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of contributory negligence, courts have power to apportion the loss between the parties be seems just and equitable. Apportionment in the context means that damages are reduced to such an extent as the court thinks just and equitable having regard to he claim shared in the responsibility for the damage. But, in a case where there has been no contributory negligence on the part of victim, question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence (see Pollock's Torts, 15th Edn. P. 361).
5. Composite negligence is not a term defined or explained. It should ordinarily mean that both acts of negligence operate at the same time so as to form one transaction, which gets so mixed up that it is not possible to separate the same in order to find out the whole fault in question. Principles of composite negligence are, when more than one person are responsible in the commission of the wrong, that the person wronged has a choice of proceedings against all or anyone or more than one of the wrongdoers. Every wrongdoer is liable for the whole damage if it is otherwise made out. Primary distinction between 'contributory negligence' and 'composite negligence' is that in the former an act or omission on the part of the injured or deceased is involved, which has materially contributed to the damage. In the latter, a person is injured or his death occurs without any negligence on his part, but as a result of the combined effect of the negligence of two or more other person. There is cleavage of opinion on the question whether Tribunal can direct apportionment of the liability. In New India Assurance Co. Ltd. V. Avinash (1988 (1) ACJ 322), National Insurance Co. Ltd. V. Kastoori Devi (1988 (1) ACJ 8), it has been held that in a case of composite negligence, there is no method or indicia to bifurcate or apportion the liability. But in Inder Singh v. Haryana State (1987 (1) ACJ 94), Darshani Devi v. Sheo Ram (1987 (2) ACJ 931) and Narinder Pal Singh v. Punjab State (AIR 1989 P & H 82), a different view has been taken. In our view, the latter view is in consonance with statutory intent as reflected in S. 110-B of the Act (corresponding to Section 168 of Motor Vehicles Act, 1988). It is clear that while awarding the amount in a case of composite negligence, Tribunal can direct payment of the entire compensation jointly and severally, but at the same time would apportion the liability between the two owners for their facility and if both the owners or two insurance companies, as the case may be, pay amounts to the claimant in proportion as awarded by Tribunal, there is no problem for the claimant. But, if one of the parties liable does not want to honour the award of Tribunal, it will be open to claimant to recover the entire amount from the other, leaving such party to claim rateable distribution from the other. Where negligent acts of two or more independent persons have between them caused damage to a third, sufferer is not driver to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set by general rules as to remoteness of damage to sue all or any one 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 cannot recover in the whole more than his whole damage.
6. At this juncture, it is necessary to refer to the 'doctrine of last opportunity' Said doctrine is said to have emanated from the principle enunciated in Devies v. Mann (1842) 10 M & W 546), which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other's carelessness is alone liable. However, according to Lord Denning, it is not a principle of law, but test of causation (see Davies v. Swan Motor Co. (Swansea) Ltd. (1949) 2 KB 291). Though in some decisions, the doctrine has been applied by courts, after the decisions of House of Lords in The Volute ((1922) 1 AC 129) and Swadling v. Cooper ((1931) AC 1), it is no longer to be applied. Sample test is what was the cause or what were the causes of the damage.
7. Therefore, conclusion about contributory negligence, arrived at on facts, is clearly in order. It is open to victim to seek recovery of entire amount from any of the parties, leaving such party to claim retribution from the other.
Appeal is allowed to the extent indicated above.