In a case of composite negligence, the injured has the option to proceed against all or any one of the joint tort-feasors, and the liability of joint tort-feasors being joint and several, the action against one of them cannot be effectively resisted as unsustainable.

1. The insurer of a stage carriage KRE 8256 is the appellant. The 5th respondent, who was a passenger in a taxi jeep No.KLF 402 had sustained injuries in an accident involving that vehicle and stage carriage KRE 8256. The vehicles collided with each other at a place called Pandaran Valavu, near Onakur on Piravom Muvattupuzha road at about 2.30p.m. on 20-9-1979. The injured was taken to the Government Hospital, Piravom and thereafter to the Medical College Hospital, Kottayam. The injured had suffered a crush injury of the right foot with loss of terminal phalange of the big toe, fracture of the basal phalange of the 2nd toe. and fracture of the right clavicle. He was hospitalised in the Medical College Hospital from 20-9-1979. In his application under S.110-A of the Motor Vehicles Act before the Motor Accidents Claims Tribunal, Ernakulam, he claimed that the accident occurred. due to the rashness and negligence of the driver of the stage carriage KRE 8256. He claimed an amount of Rs. 51,8,80/- as compensation under various heads. Respondents 1 to 3, the owner, driver and insurer of the passenger bus resisted the claim stating that the accident occurred due to the negligence of the driver of the jeep KLF 402, and that the injured was liable to be compensated, if at -all, only by him. The 3rd respondent contended further that the insurer of the jeep not having been impleaded in the claim petition, it was not maintainable. The 3rd respondent also contended that the insurer of the jeep had a statutory liability to pay Rs. 10,000/-as compensation and that in any case, no amount of compensation can be awarded against the insurer of the bus.

2. The Tribunal held, that the accident occurred due to the negligence of the bus driver as also the jeep driver. He found further that the bus driver was more negligent, and that he was negligent to the extent of 75% and the jeep driver was negligent to the extent of 25%. He held that the accident occurred due to the composite negligence. Even though the injured claimed an amount of Rs. 51,880/- as compensation, he had limited his claim to Rs. 30,000/-. The Tribunal found that he was not entitled to any compensation for loss of earning capacity. It, however, awarded Rs. 5,000/- as compensation for pain and suffering, Rs. 5,000/- for disability in walking, Rs. 3,000/- for loss of earnings, and Rs. 2000/- for medical expenses, thus aggregating an amount of Rs. 15,000/-. Since the injured had not sought any relief against the owner, and driver of the jeep, the Tribunal held that in view of the fact that the liability of the respondents was joint and several, each one was liable to pay the full compensation. The injured had not claimed any relief against the owner and driver of the jeep. The entire liability was therefore cast upon respondents 1 and 2, and the insurer was directed to deposit the entire amount with interest at 6% from 26-12-1980 till realisation. It is against that judgment and award of the Tribunal that the insurer of the stage carriage has come up in this appeal.

3. The main point which is urged by the appellant is that the Tribunal erred in law in awarding recovery of the entire amount of compensation from the insurer of the bus after finding that the driver of the jeep was negligent to the extent of 25%. Counsel also submitted that in a case of composite negligence, the Tribunal could not have awarded any compensation at all unless all the joint tort-feasors were parties to the proceedings. The appellant therefore prayed that the appeal may be allowed restricting his liability to 75% of the amount of compensation awarded by the Tribunal.

4. Respondents 3 and 4, the owner and driver of the jeep have filed a cross-objection They maintain that the insurer is limited to the defences available under S.96 (2) of the Motor Vehicles Act in an appeal from an award of the Accident Claims Tribunal as much as it is restricted to such defences before the Tribunal. They assert that the