Joint and several liability

2015 SCMR 1406 SUPREME-COURT Judicial Precedent

S. 1Suit for compensationComposite negligence of the defendantsJoint and several liabilityVicarious liability of an organization for rash and negligent driving by a driver of its vehicleScope

Deceased and three other persons were killed in a road accident caused by the rash and negligent driving of the defendant, who was driving a trailer owned by a Government organization

At the time of the accident repairing work on one side of road was being carried out by the City District Government Authority, therefore it was closed for traffic, and the traffic was diverted to the other side of the road, which was being used by the traffic from both ways

Legal heirs of deceased/plaintiffs filed suit for compensation under the Fatal Accidents Act, 1855, against the driver, the Government organization, and the City District Government Authority (collectively "the defendants")

Suit was decided in favour of plaintiffs and (High) Court found that death of the deceased was caused by the composite negligence and wrongful act of all the defendants; that City District Government Authority was required to make proper arrangements for the smooth flow of the traffic and to make adequate arrangements to caution the traffic flow by affixing barricades, flicker lights and diversion signboards for smooth flow of the traffic and should have also deployed traffic constables on the road

(High) Court held that the defendants were jointly and severally liable to the plaintiffs in the sum of Rs.27,097,43.62, including compensation of Rs.300,000 for each of deceased's minor children, with profit/mark-up at the rate of 15% per annum from the date of judgment till recovery of the amount with costs

Division Bench of High Court/Appellate Court maintained the judgment and decree, but reduced the compensation to minor children from Rs.300,000 to Rs.100,000 each

Contention of Government organization was that the City District Government authority was solely responsible for the accident, therefore, suit should have been decreed against it alone

Validity

Present case was one of composite negligence

Accident that took life of the deceased and three other persons was caused due to the negligence of the driver of the Government organization coupled with negligence of the City District Government Authority for its failure to take precautionary and preventive measures to avert any untoward happening

Government organization on one hand failed to cross examine any of the plaintiff's' witness on material aspect of the case and secondly failed to lead any evidence to rebut the claim in the suit

Widow of deceased/plaintiff herself and through her witnesses established that City District Government Authority had failed to perform its duty of care as there was no light and or cautionary signs forewarning or putting commuters on lookout of any potential hazard nor any divider or fence was placed to make road travel safe for the commuters, and such evidence had gone unchallenged

Widow of deceased/plaintiff also led evidence to establish that the accident was caused by the wrongful act of the driver of the Government organization, thus it was vicariously liable

Plaintiffs did not have to assess and seek inter se proportionality of wrong and or liability of each of the tortfeasor, nor does the Court ordinarily enter into such controversy, in absence of any issue, necessitating such determination between the joint tortfeasors inter se

In case of composite negligence by two or more persons each of the tortfeasor was jointly and severally liable to make good the loss to the persons who had suffered loss of beloved one or suffered injury or damage to his person or property

One of the joint tortfeasor in a case could not turn around and shun his liability and pass on the entire liability on the other joint tortfeasor/wrong doer

Contention of Government organization regarding sole responsibility of City District Government Authority for the accident was dismissed in circumstances

Appeal was dismissed accordingly.

2015 SCMR 126 SUPREME-COURT Judicial Precedent

S. 9Recovery suit against partnershipPartnership firmPartnerJoint and several liabilityScope

Partner having dispute with other partners in the partnership-firm wrote to bank that he would not be liable for any future financing/loan made to the firm

Subsequent to such letter other partners took out a loan from the bank

Effect

Despite the letter partner in question remained a partner in the firm throughout, as there was no proof of dissolution instrument or other legal mode to show that partnership firm had been dissolved

Partner in question would remain jointly and severally liable for the loan taken out by other partners despite the letter written to the bank and despite having a dispute with the other partners could not be exonerated and discharged of his liability as partner of the firm, till the time the firm remained intact

Appeal was dismissed accordingly.

2015 CLD 158 SUPREME-COURT Judicial Precedent

S. 9Recovery suit against partnershipPartnership firmPartnerJoint and several liabilityScope

Partner having dispute with other partners in the partnership-firm wrote to bank that he would not be liable for any future financing/loan made to the firm

Subsequent to such letter other partners took out a loan from the bank

Effect

Despite the letter partner in question remained a partner in the firm throughout, as there was no proof of dissolution instrument or other legal mode to show that partnership firm had been dissolved

Partner in question would remain jointly and severally liable for the loan taken out by other partners despite the letter written to the bank and despite having a dispute with the other partners could not be exonerated and discharged of his liability as partner of the firm, till the time the firm remained intact

Appeal was dismissed accordingly.