In a case of composite negligence, the liability of the appellant insurance company is limited to the percentage of negligence attributed to the driver of the insured vehicle. The claimant can proceed against any one of the joint tort feasors, and the liability already fixed for the appellant-company shall not be reduced further.

Thomas, J.

National Insurance Company Limited is the appellant in all these appeals which are in challenge of different awards passed by a Motor Accidents Claims Tribunal (for short 'the Tribunal') in favour of different claimants, but all arising out of one accident. A collision of two motor vehicles took place at about 6 p.m. on 8-7-1985 at Chadayamangalam on Trivandrum-Kottarakkara road. One of the vehicles involved in the collision was a trekker (TME 4213) and the other was a lorry (KEY 3646).

2. All claimants were passengers in the trekker. The Tribunal found that the collision was the result of composite negligence of the drivers of both vehicles, but the ratio of negligence factor was different as between them. Tribunal fixed negligence on the part of the driver of the lorry as 75% and on the part of the driver of the trekker as 25%. The lorry was insured with the appellant insurance company. The owner and driver of the trekker were not made parties in the claims, nor has the insurer of the trekker been impleaded in the proceedings. So the Tribunal, after holding that the accident was the result of composite negligence of both drivers, passed the award against the driver and owner of the lorry and directed the appellant-insurance company to pay the entire amount of damages. However, the Tribunal permitted the appellant company to recover 25% of the award amount from the owner, driver and/or insurer of the trekker. These appeals are in challenge of the said awards.

3. Learned counsel for the appellant contended that the appellant insurance company could not be made liable for anything more than what the insured is liable and that the insurer cannot be made liable for any amount more than the percentage of negligence fixed in respect of the vehicle insured. The permission to recover 25% of the award amount from the owner, driver and insurer of the trekker is no consolation for the appellant as the said direction is not binding on them since they were not parties in the claim proceedings, contended the counsel.

4. If it was a case of composite negligence and if drivers of both vehicles are joint tort feasors the claimant can choose to realise the entire amount of damages from any one of the joint tort feasors. The said position is well nigh settled (vide United India I. Co. Ltd. v. Preniakumaran -1987 (2) KLT 817; Insurance Company v. Varghese -1988 (2) KLT 871 and Velitimi v. Vellakutty -1989 (2) KLT 227). In all those cases the decisions proceeded on the assumption that the drivers of both vehicles involved in a collision were joint tort feasors. As the said premises was not disputed in those cases, the well settled legal principle that the claimant can proceed against any one of the joint tort feasors applied therein.

5. But Shri S.B. Premachandra Prabhu, learned counsel for he appellant, raised the contention in these cases that the drivers of both vehicles are not joint tort feasors, but independent or several tort feasors and hence each can be made liable only to the extent of his negligence. In other words, the contention is that if there are several tort feasors one of them cannot be compelled to bear the liability of the other man's share of negligence.

6. At this stage we would make it clear that contributory negligence cannot be equated with joint tort feasor ship. In the case of contributory negligence the injured/ claimant as well as the tort feasor, both, should have contributed to the accident through each party's separate negligence. In such a case the liability of the tort feasor gets slashed down in proportion to the negligence contributed by the claimant. But in the case of joint tort feasors there is no contribution from the claimant in the tort.

7. Now we proceed to consider whether in a collision of two motor vehicles the drivers of both the vehicles are joint tort feasors or only several or independent tort feasors. Determination of the said question is indispensable as the contention is pressed