JUDGMENT :

VINAY JOSHI, J.

1. Heard.

2. Admit.

3. Mr. S.O. Ahmed, learned Counsel waives service for respondent no. 1. None appears for respondent nos. 2 and 3, though served.

4. This is an appeal of Insurer challenging the Judgment and Award, dated 31.10.2017 passed by the Member, Motor Accident Claims Tribunal, Chandrapur in M.A.C.P. No. 144 of 2004.

5. Initially, respondent no. 1 (petitioner) had approached to the Tribunal in terms of Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the M.V. Act”) for grant of compensation on account of sustaining permanent disablement in a vehicular accident dated 8.2.2004. It is the case of petitioner/claimant that, on the date of accident, she was travelling by an auto rickshaw bearing registration no. MH-34/D/793 alongwith her family members. At the relevant time, the offending truck bearing registration no. MP-23/P/9862 came from the opposite direction in a high speed and gave forceful dash to the auto rickshaw. The said accident occurred due to rash and negligent driving on the part of both the drivers namely the driver of auto rickshaw and the driver of truck.

6. In the said accident, the petitioner, who was barely 12 years old, sustained severe bodily injuries for which she was hospitalised. She was operated and took further treatment. However, she sustained permanent disablement. On these pleadings, the petitioner approached to the Tribunal against the owner and Insurer of auto rickshaw and owner of the truck.

7. The owner and Insurer of auto rickshaw resisted the claim on multiple grounds. It is contented that the accident occurred due to sole negligence of truck driver. The auto rickshaw was carrying excess passengers at the relevant time. Hence, there is breach of terms and conditions of Insurance policy which exonerates the Insurer from the liability.

8. Having regard to the oral and documentary evidence, the Tribunal partially allowed the claim. In the said accident, some other passengers of auto rickshaw sustained injuries resulting into several claims. The Judgment and Award of connected petitions bearing M.A.C.P. Nos. 55 of 2004 and 59 of 2004 were tendered before the Tribunal during the course of evidence. In these Judgments, the then Tribunal arrived on the conclusion that, it is a case of contributory (In fact, it is composite) negligence where negligence is apportioned to the extent of 30% to the auto rickshaw driver and 70% to the truck driver. Considering the earlier adjudication on the point of negligence in sister petitions, the Tribunal has accepted the same and proceeded further. On facts, the Tribunal assessed the claimants evidence as well as the evidence of Medical Officer. On that basis, the Tribunal awarded compensation to the tune of Rs. 3,00,000/- towards permanent disability and Rs. 50,000/- towards medical expenses. As such, the Tribunal has quantified total compensation of Rs. 3,50,000/- to be paid along with interest @ 9% p.a. Though the Tribunal has accepted negligence on the part of drivers of auto rickshaw and truck; however, the liability was fastened jointly and severally on the owner and insurer of auto rickshaw and owner of truck. The Tribunal referred the Apex Court decision in the case of Pawan Kumar and Others vs. M/s. Harikishan Dass Mohan Lal and Others, 2014 ACJ 704 while fastening joint and several liability.

9. The appellant/Insurer is mainly aggrieved by the Tribunal’s order of saddling joint and several liability. It is contention of appellant (Insurer of auto rickshaw) that, in the sister petitions which were relied by the Tribunal, the liability was apportioned. According to Insurer, it was incumbent on the Tribunal to consider the view taken in the earlier petitions arising out of the same accident.

10. In response, the respondent/claimant heavily relied on the Judgment of Pawan Kumar and another (referred supra) to