Ambika Chitaranjan vs B. Vijayamma and Others

Varghese Kalliath J.

Appellant is the owner of an ambassador car. The 1st respondent was going from Peroorkada to Attukal Temple in a flat car Appellant''s car driven by the 2nd respondent before the Tribunal, come from opposite direction. It was driven at a high speed. The driver was not able to control and avoid an accident. It hit against the car in which the 1st respondent herein was travelling. The 1st respondent sustained injuries. She filed a claim petition, u/s 110A of the Motor Vehicles Act. She claimed a total compensation of Rs. 61,800/-. The Tribunal awarded a sum of Rs. 55,800/-.

Appellant is aggrieved by the award. It is to be noted that the Tribunal found that the driver of the car of the appellant was rash and negligent in contributing the accident, even though there was some negligence on the part of the driver of the fiat car. The fact discloses a case of composite negligence. The terminology of composite negligence may not indicate all the consequences, liabilities and significant of fixing joint and several liabilities on joint tortfeasors. In a case where breaches of duty by different persons cause the plaintiff to suffer a single injury the law mandates that the plaintiff is entitled to sue all or any of them for the full compensation of his loss. Certainly, it is greatly to the plaintiffs advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for the thereby avoids the risk, inherent in cases where there are different defendants and of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him-wide Winfield and Jolovict on Tort, Twelfth Edition.

Though now there is no serious controversy regarding the liability of the joint tortfeasors and several tortfeasors, "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". The above definition may take in element of common design. In an accident case, it may not be quite appropriate to say that the tortfeasors had a common design. It is an accident and there was no intention on the part of the tortfeasors to cause injury to anybody and they may not have any common design to cause injury to a pedestrian. But there can be cases where a common design emerging from the acts done by joint tortfeasors. But all these discussions are of academic interest.

It is now well settled that in a case of joint tortfeasors, as far as injured or representatives of the deceased are concerned, he/they can proceed against all the tortfeasors (joint tortfeasors) or any one of them. All the tortfeasors are jointly and severally liable to the party to whom they are liable to pay compensation. There cannot be any dispute as regards this proposition. We feel that it is settled law. In a recent decision, it is said so by this court also vide Velunni v. Vellakutty 1989 (2) KLT 227.

In this view, even if we hold that the appellant is only a joint tortfeasor, she cannot shirk her liability. So there is no merit in this appeal and it is only to be dismissed. We do so.