In a case of composite negligence, each wrongdoer is jointly and severally liable to pay the entire damages, and the injured person has the choice of proceeding against all or any of them.

Suresh Kait, J.

1. The instant appeal is preferred against the impugned award dated 17.11.2011, whereby the learned Tribunal has granted compensation for a sum of Rs.49,73,576/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization of the amount.

2. Brief facts of the case are that on 22.12.2001, Shri Kalp Mithal, the deceased was going to Faridabad in a Car bearing No.HR 51 H 3878, being driven by his friend Shri Rahul Malik, i.e., respondent No.5. The weather was foggy. The offending vehicle was being driven in a rash and negligent manner by respondent No.5. When at about 1.30 am, they reached at NHPC Chowk, Mathura Road, Faridabad, respondent No.5 could not see the vehicle from the left side due to which the offending vehicle bearing No. HR 51 H 3878 was hit by a TATA-407 which had come from the left side. As a result of the impact, the deceased suffered multiple injuries. He was removed to Apollo Hospital, where he was declared brought dead.

3. It is pertinent to note that the offending vehicle was owned by respondent No.6 and insured with the appellant company.

4. Learned counsel appearing on behalf of the appellant submitted that the accident had taken place on 22.12.2001 due to collision of two vehicles and the deceased Kalp Mithal sustained fatal injuries in the said accident. The driver of the other vehicle TATA-407 ran away from the spot after the accident.

5. Learned counsel further submitted that on service of the notice, the respondent Nos. 5 and 6, i.e., driver and owner of the offending vehicle filed their common written statement denying the negligence on the part of the respondent No.5. It was further submitted that the accident was caused due to negligence of driver of other vehicle TATA-407, being driven at a fast speed and negligently without putting its head lights on.

6. The appellant is aggrieved with the opinion of the learned Tribunal, whereby the appellant company was directed to pay the award amount without considering the documents and evidence available on record.

7. It is submitted that as per the Claim Petition, while driving the insured vehicle, respondent No.5 was negligent, which caused the death of the deceased. However, negligence was not at all proved on the part of the respondent No.5. No criminal proceeding was initiated against him, except the solitary statement of PW1, who was not the eye witness to the accident. There was no evidence to prove the rash and negligent driving of the respondent No.5. However, on the basis of principles of res ipsa loquitor, the learned Tribunal held that the respondent No.5 was negligent.

8. Learned counsel further submitted that there was no eye witness to the accident, therefore, the negligence was not proved. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, wherein negligence has to be proved. But in the instant case, the respondents/claimants have failed to do so, despite that the learned Tribunal has directed the appellant to pay the compensation.

9. Learned counsel for the appellant further submitted that the respondent Nos. 5 and 6, i.e., driver and owner of the offending vehicle have filed their common written statement and submitted that the offending vehicle was being driven at a speed of 40 to 45 kmph. A Tata-407 had come from the left side, being driven at a fast speed without putting its head lights on. The driver of Tata-407 was negligent. It had hit the offending vehicle. As a result of impact, the offending vehicle was badly damaged.

10. The learned Tribunal has framed issue No. 1 as under:-

“Whether deceased suffered injuries in an accident which took place on 23/12/2001 due to rash and negligence driving of vehicle bearing no.HR 51 H 3878 driven by respondent no. 1, owner by R-3 and insured with R-2?”

11. Shri Dharamveer Singh Chauhan R1W1 deposed that he along with Rahul and Kalp Mithal left for factory at Faridabad. It was little foggy weather. When they r