IMPORTANT POINT
In the case of composite negligence, the plaintiff/claimant is entitled to recover the entire compensation from any one of the joint tort feasors, and apportionment of compensation between two tort feasors vis-a-vis the plaintiff/claimant is not permissible.

JUDGMENT :

1. The insurance company in this appeal challenges the judgment dated 8.2.2017 passed in MACP no.56/2002 by MACT (Aux), Junagadh, where the claimant has been made entitled to recover the amount of Rs.1,37,500/- from opponents no.1 to 4 jointly and severally.

2. Learned advocate Mr. Mazmudar for the appellant submitted that in five group matters, the Tribunal has held the driver of auto rickshaw negligent to the extent of 80%, while motorcyclist has been considered negligent to the extent of 20% and the present appellant is the insurance company of the motorcyclist and since the only liability of the insurance company would come to 20%, Mr. Mazmudar has urged for a direction in accordance to the judgment of Khenyei Vs. New India Assurance Co. Ltd. & Ors., reported in (2015) 9 SCC 273.

“22. What emerges from the aforesaid discussion is as follows :

22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.”

3. Since the amount which is challenged would be 80% of Rs.1,37,500/-, which comes to Rs.1,10,000/-, in view of smallness of amount, this Court does not consider it necessary to entertain the merits of the matter. However, in accordance to the judgment in the case of Khenyei (supra), the insurance company is permitted to claim 80% amount from the owner and driver of the rickshaw by way of filing an execution petition.

4. Considering the smallness of amount, this Court finds no reason to interfere in the impugned judgment and award passed by the Tribunal. The appeal, accordingly, is disposed of. Notice/Notice of admission is discharged. Interim relief, if any, shall stand vacated.

5. It is made clear that this order would have no bearing and/or shall not be considered as precedent in any of the matters connected to the accident in question vis-a-vis the impugned judgment and award.

6. Since the main appeal is disposed of, connected applications, if any, would not survive and are disposed of accordingly.