In cases of composite negligence, claimants have the right to proceed against any one of the joint tortfeasors, and the liability of joint tortfeasors is joint and several.

Vineet Kothari, J.-These six appeals are disposed of by a common Judgment as the Tribunal also decided these various six claim petitions by a common order and they pertain to same accident which took place on 211.1995 between Jeep No. RJ-04/C-101 with Truck No. PB-10F-9991 while the said Jeep was being driven by Mohammad Isa going from Dhorimanna to Barmer. It was a case of head on collision between the said Jeep and the Truck at the center of the road and, therefore, the Tribunal while deciding the issue No. 1 held that it was a case of contributory negligence of both the drivers of Jeep and Truck and, therefore, the liability to pay the compensation was apportioned to the extent of 50% between the two vehicles -the Jeep owner and insurer of the truck. The Jeep owner was not impleaded as respondent by the claimants of the deceased persons, who were persons of the ill fated Jeep. On account of the said accident, 5 persons died namely driver of the Jeep - Mohd. Isa his wife Nazma, his daughter Ume Gulshan, one Umehani Bibi d/o Ashraf Shah and Sherbano d/o Peer Dada Mian Jilani. Two persons Mohd. Salim and Gulam Hussain suffered injuries.

2. Out of the six claim petitions, five are for the five deaths resulting out of the said accident and one is by the owner of the Jeep No. RJ04-C/101 (Claim Case No. 182/1996) Mairaj Ali is by the owner of the Jeep and the Appeal No. 185/1998 arising out of the Claim Case No. 49/1996 pertains to death of Mohd. Isa, - driver of the Jeep.

3. As far as finding of the Tribunal while deciding the issue No. 1 holding drivers of both the vehicles to the extent of 50% is concerned, in the opinion of this Court, the said finding does not call for any interference in view of the evidence before the Tribunal, who after examining the site plan etc. found that both these drivers were liable since, it is a case of contributory negligence.

4. As far as claim in relation to driver Mohd. Isa and owner of the Jeep is concerned, the said claim as determined by the Tribunal, does not call for any interference and the amount of compensation as well as the amount of loss of property i.e., the Jeep, also does not call for any interference.

5. Learned Counsel for the appellants for other claimants representing the four other deceased persons belonging to the same family, contends that even if the driver of the Jeep is held liable of contributory negligence to the extent of 50%, the passengers of the ill fated Jeep cannot be said to have contributed in any manner to the negligence of the said driver and, therefore, the compensation awarded by the Tribunal for such other deceased person cannot be restricted to 50% as far as the insurer of the other vehicle involved in the said accident is concerned because it is a case of composite negligence for them and law is fairly well - settled in this regard that in case of composite negligence, the claimants have a right to choose to proceed against any one of the joint tort feasors, as their liability in law is joint and several. He relies upon following Judgment s in this regard:

Karnataka State Roadways Transport Corporation vs. Arun, reported in 2004 ACJ page 249. Beaudri & Ors. vs. Kiess & Ors., (Canada SC) reported in 1968 ACJ page 34. Om Wati vs. Mohd. Deen (Delhi), reported in 2002 ACJ page 868, NIA vs. Kasturi Devi (Raj.), reported in 1998 ACJ page 8. Dhapa Kanwar vs. Kishan Lal & Anr., reported in 1992 ACJ page 163.

6. It would be relevant to produce Paras 10 and 11 of the Delhi High Court decision in Omwatis case dealing with the concept of composite negligence and right of claimant to proceed against any one of them.

“10: It logically follows from this that a claimant could choose to file a claim petition against all or any one of them and it was not necessary that he should implead all joint tort feasors as party respondents because they were only proper parties and not necessary parties. It may as well be that claimant had not set up a case of composite ne