LAW OF TORT

CASE COMMENT

KHENYEI V. NEW INDIA ASSURANCE CO. LT

SUBMITTED TO: Prof. Aruna B Venkat (Faculty, Law of Tort)

SUBMITTED BY: Adishree Krishnan (2022-5LLB-06)

Year I

Semester I

NALSAR UNIVERSITY OF LAW, HYDERABAD

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Table of Contents
Introduction ............................................................................................ 1
Negligence as a Tort .............................................................................. 2
Composite Negligence........................................................................... 3
Case Commentary ................................................................................. 4
Facts....................................................................................................... 5
Issues Before the Court………………………………………………..
Judgment of the Supreme Court………………………………….6
Analysis…………………………………………………………………7
Conclusion............................................................................................... 8

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 Introduction
The word ‘tort’ is derived from the Latin word tortum, which refers to something “twisted,
wrung or crooked”. Following from its 3 pillars of justice, equity and good conscience, the law
of tort protects the legal health of individuals and aims to achieve different goals of appeasement,
deterrence and ethical punishment and restoration.

This project aims to study the tort of composite negligence through the case of Khenyei v. New
India Assurance Co. Ltd.1 It will examine, inter alia, negligence as a tort, the various tests for
ascertaining its presence, as well as a case commentary and analysis.

Negligence as a Tort

Percy Henry Winfield has defined negligence as “a method of committing some (but certainly
not all) torts, or an independent tort which sprang from the action upon the case for negligence
and which may be said to have developed into the nominate tort of negligence during the first
quarter of the nineteenth century.” 2

With respect to Winfield’s second definition, the independent tort of negligence consists of 3
ingredients - a pre-existing legal duty on the defendant towards the plaintiff, a consequent breach
of aforementioned duty, which then results in some harm or damage to the plaintiff. In such a
situation, the plaintiff can claim damages in a bid to restore themselves back to their original
position.

Thus, in simple terms, negligence can be defined as a breach of a legal duty to take care by the
defendant, which results in undesired damage or harm to the plaintiff.

An important step to establish the existence of the tort of negligence is to ascertain whether there
exists a legal duty of care between the opposing parties. The framework to adjudge its existence
has undergone judicial transformation through the precedents set in - Donaghue v. Stevenson3,
Anns v. Merton London Borough4, Caparo Industries PLC v. Dickman5 and Sutherland Shire
Council v. Heyman6.

1
Khenyei v. New India Assurance Co. Ltd., (2015) 9 SCC 273.
2
Percy H. Winfield, Duty In Tortious Negligence, 34. Columbia L.R. 41,41(1934).
3
M’ALISTER (OR DONAGHUE) (PAUPER) APPELLANT; AND STEVENSON RESPONDENT, (1932) A.C.
562.
4
ANNS AND OTHER RESPONDENTS AND MERTON LONDON BOROUGH COUNCIL APPELLANTS,
(1977) 2 WLR 1024.
5
CAPARO INDUSTRIES PLC. RESPONDENTS AND DICKMAN AND OTHERS APPELLANTS, (1990) 2
A.C. 605.
6
Sutherland Shire Council v. Heyman (1985) 157 CLR 424.

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Once a duty of care has been established and said duty has been breached, it is necessary for the
plaintiff to prove that the damage caused to them was a direct and foreseeable consequence of
the defendant’s actions i.e., any damage must be foreseeable before it is actionable. This brings
into consideration the legal concept of causation, which is further bifurcated into causation in
law and causation in fact.

Causation in fact is established through answering the ‘But for’ test: but for the actions of the
defendant, would the damage have occurred to the plaintiff? Causation in law acts as a filter
mechanism to limit the liability of the defendant. It is based on the principle that a person cannot
be held liable ad infinitum. In order to test the remoteness of the damages, the tests of directness
and reasonable foreseeability are followed.

Lastly, it is imperative for the plaintiff to have suffered actual legal damage as a consequence of
the defendant’s actions, which must have occurred within an appropriate time frame.

Composite Negligence

Former Chief Justice of India K.G. Balakrishnan in T.O. Anthony v. Karvarnan7 elaborated on
the principle of composite negligence.
Composite negligence refers to a situation of negligent activity perpetrated by two or more
individuals. A person injured by the acts of such individuals is said to be injured on the account
of composite negligence. In such situations, the joint tortfeasors are held jointly and severally
liable. They are legally bound to pay the entire damages. Not only that, the plaintiff has the
choice of proceeding against all or any of them. As the onus of composite negligence lies on the
joint tortfeasors, the plaintiff or the court need not establish the extent of responsibility of each
joint tortfeasor separately. Thus, all persons committing the tort will be termed as joint
tortfeasors and will be held jointly liable in the eyes of the law, provided that there is congruence
in the acts causing damage and not merely coincidence.

7
T.O. Anthony v. Karvarnan, (2008) 3 SCC 748.

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 Case Commentary
Facts

On 29th July, 2003, the claimant was travelling in a bus, numbered NL-06/B/0027, which was
insured by New India Assurance Co. Ltd. During the course of the journey, a trailer truck
carrying iron beams and coming from the opposite direction collided with the bus, resulting in an
iron beam coming loose and perforating the right side of the bus. Many passengers, including the
claimant, suffered grievous injuries. It was also later found that the driver of the bus was guilty
of rash and irresponsible driving.

Issues before the Court

The main question that arose before the court in the batch of Appeals was whether it was
permissible for the claimant to recover the entire compensation from one of the joint tortfeasors,
in a case where the damage was caused by the composite negligence of drivers of the trailer
truck and bus, to the tune of 2/3rd and 1/3rd respectively.

The issue of availability of remedies to one of the joint tortfeasors from whom compensation has
been recovered was also a question put forward before the Supreme Court.

Judgement of the Supreme Court

Relying on the definitions of composite negligence provided by judicial precedents like National
Insurance Co. Ltd. v. P.A. Vergis8 and United India Fire & General Insurance Co. Ltd. v.
Varghese9, the Apex Court observed that the above case was one of composite negligence,
where the injuries to the claimant had been caused by the “combined wrongful act of joint
tortfeasors.” It held that the liability would fall on all those individuals who were responsible for
the commission or omission of the act, whether it be through aiding, counseling or actively
joining in its commission or omission.

The Court drew an important distinction between contributory and composite negligence through
a previous judgement- T.O. Anthony v. Karvarnan. In contributory negligence, the injured
himself contributes to the occurrence of the accident by virtue of his own negligence and hence
the extent of his negligence will reduce the potential damages to be recovered by him. However,
in composite negligence, the injured has not contributed to the accident, but rather has suffered
due to the outcome of a combination of negligence of two or more other persons. Hence, the
injured need not establish the extent of responsibility of each wrongdoer separately.

8
National Insurance Co. Ltd. v. P.A. Vergis, (1990) SCC OnLine Raj 630.
9
United India Fire & General Insurance Co. Ltd. v. Varghese, (1988) SCC OnLine Ker 575.

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Referencing the case of Palaghat Coimbatore Transport Co. Ltd. v. Narayanan10, the Court
held that when the injury is caused by the wrongful act of two or more parties, it is not necessary
for the plaintiff to establish a proximate cause to determine upon whom the liability rests. As
long as the condition of remoteness of damage is satisfied, the plaintiff is permitted to sue all or
any of the negligent persons and has the right to recover all damages from any of the defendants.

Similarly, when it came to ascertaining the extent of negligence of each joint tortfeasor, the
Court held that such an endeavour was immaterial to the claim of the plaintiff, except in a
situation in which all joint tortfeasors are before the Court, in which case the extent of liability
may be decided by adjusting equities inter se at an appropriate stage. Supporting this view, the
court also referenced the case of Sushila Bhadoriya v. M.P SRTC11. In this case, the court had
held that in a situation of legal injury caused by two joint tortfeasors, the plaintiff need not
emdeavour to decide extent of liability of each joint tortfeasor. When there is a lack of evidence
in Court, rendering the separate acts of each person indistinguishable, the liability can be
fastened on both the joint tortfeasors or, in the case of singular impleadment, any one of the joint
tortfeasors. The court also held that if it is not possible to determine the ratio of negligence of the
parties involved, the apportionment of the compensation claim is not necessary. In such
situations, the joint tortfeasors will be jointly and severally liable to pay the compensation.

Regarding the aforementioned issue of total recovery of damages from one joint tortfeasor by the
plaintiff, the court held that the liability of each and every joint tortfeasor vis-a-vis the plaintiff
cannot be bifurcated as it is joint and several. Referencing the Law of Torts, 2nd Edn., 1992 by
Justice G.P. Singh, the court observed that the “apportionment of compensation to be paid to the
plaintiff is not permissible as the plaintiff has the right to recover the entire amount from the
easiest target or the solvent defendant.”12

The court also addressed the secondary issue of availability of remedies to the joint tortfeasor
from whom compensation has been recovered, stating that, post the payment of compensation,
the impleaded joint tortfeasor can then sue the others and recover from them the contribution to
the extent of their negligence.

Finally, the Bench further held that the Court/ Tribunal in the given case would not be in a
position to determine the proportional liability of the drivers of the bus and trailer truck as there
was no impleadment of all joint tortfeasors. In such a case, the impleaded party could, on his
own volition, decide to sue the other compositely negligent party in separate proceedings after
the rewarding of compensation to the plaintiff.

10
Palaghat Coimbatore Transport Company Ltd. v. Narayanan, (1938) SCC OnLine Mad 301.
11
Sushila Bhadoriya v. M.P. State Road Transport Corporation, (2004) SCC OnLine MP 360.

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 Analysis
The case of Khenyei v. New India Assurance Co. Ltd. dealt with the issue of joint and several
liability. In the aforementioned case, the claimant was injured due to the collision of a trailer
truck and a bus, which occurred due to negligence on behalf of the drivers of both the vehicles.

Through this case, the Court made several important observations. It drew a distinction between
contributory and composite negligence, specifying that in the case of the latter, the plaintiff has
the power to sue either or both of the joint tortfeasors in a manner they deem fit to recover the
entire compensation for the damage caused to them, while in the former, the determination of the
extent of damage caused by the parties is a prerequisite.

This distinction drawn makes for an important legal development- it empowers the aggrieved
party to receive compensations in a quicker and more just manner. By allowing the plaintiff the
right to recover damages from the “solvent defendant”, it provides the plaintiff an expeditious
route to recovering damages, instead of a drawn out legal process of first ascertaining liabilities
of each joint tortfeasor. It considers the plaintiff’s interests as paramount, and any settling of
liabilities between the joint tortfeasors as secondary- only to be settled after compensation has
been duly given to the injured party.

Thus, this case maintains the tenets of the law of tort- the principles of justice, equity and good
conscience- by placing the injured party at the fore and ensuring that they are ethically and
practically restored as close as possible to their original position prior to the occurrence of the act
or omission.

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 Conclusion
The law of tort, due to its virtue of being an uncodified system of law, remains an ever evolving
and changing discipline, with the definitions of tortious acts constantly seeing newer facets with
each factual matrix that comes along.

The tort of negligence itself remains one that is hard to define. Negligent behaviour could be as
simple as forgetting to shut a door, or as complex as motor vehicle accidents, which involve the
study of a series of unfolding events to determine liability.

With every case of negligence, more and more dimensions get added to the concept, as seen in
the case of Khenyei v. New India Assurance, which gave the claimant the power to sue any or
both of the joint tortfeasors and recover the entire compensation from them in a suit of composite
negligence.