IMPORTANT POINT
In cases of composite negligence, the injured party can recover full damages from any one of the negligent parties, and the liability of joint tortfeasors is joint and several, irrespective of the extent of each party's negligence.

JUDGMENT :

Subhash Chand, J.

The instant miscellaneous appeal has been directed against the judgment/award dated 28.01.2011 passed by the learned District Judge-cum-M.A.C.T., Godda in M.A.C.T. No.43 of 2009 whereby and whereunder the learned Tribunal awarded the amount of Rs.8,05,780/- alongwith simple interest @ 6% per annum from 22.12.2009 till its realisation within 30 days from the date of award payable by Insurance Company/appellant herein.

2. The brief facts leading to this Miscellaneous Appeal are that the claim petition was filed with these averments that on 18.11.2006 at about 3:30 pm deceased Nand Kishore Paswan alongwith his wife Ratan Devi, the claimant no.1 in claim petition, boarded the tempo bearing registration no. BR-34A-0197 at Usary Registry Chowk and was going to house at Rupani. Amid the way 300 yards from the Registry Chowk near the village Barichak at Maheshkhut-Gogari Pacci Road, the jeep bearing registration no. HR-01J-8110 being rashly and negligently driven by its driver dashed the tempo. As a result of the said accident Nand Kishore Paswan sustained serious injury who was referred to hospital Gogari. Police also recorded the statement in course of treatment of Nand Kishore Paswan who succumbed to the injury. The claimant no.1 wife of the deceased also sustained simple injury. The FIR of this case was also lodged with the Police Station Gogari P.S. Case No.304 of 2006 against the driver of both the vehicle Tempo and Jeep as well. Claimant no.1 is the wife claimant nos.2, 3 and 5 are the minor daughters and claimant no.4 is the minor son of the deceased. The deceased was 35 years old at the time of accident and was a government servant who was choikidar. His monthly income was Rs.5,987/-. The post mortem of the deceased was also conducted. The total compensation of Rs.7,73,732/- was claimed.

3. The owner of the offending vehicle Jeep OP no.1 Anil Kumar Yadav filed the written statement with these averment that he is owner of the Jeep and OP no.2 Rajmani Paswan was driver of the same. This vehicle was insured by OP no.3 National Insurance Company Limited. The accident was not caused on account of rash and negligent driving by the driver of the Jeep.

4. OP no.3 National Insurance Company Limited filed the written statement with these averments that the claim petition was not maintainable. The same is bad for non-joinder of party as the owner and insurance of the tempo were not impleaded as party to this claim petition. The vehicle was ensured as a private vehicle but the same was carrying passenger on hire. Hence the insurance company is absolved from the liability if any.

5. The learned Tribunal passed the impugned judgment/award on 28.01.2011 directing OP no.3 National Insurance Company Limited to pay the amount of Rs.8,05,780/- alongwith simple interest @ 6% per annum from 22.12.2009 till the actual date of payment within 30 days from the date of passing award.

6. Aggrieved from the impugned judgment/award dated 28.01.2011 the instant miscellaneous appeal has been directed on behalf of insurance company on the ground that earlier the claimants had filed the petition under section 140 of MV Act bearing MACT case, Godda No. 29 of 2007 in which the National Insurance Company Limited the appellant and New India Assurance Company which is the insurer of the Tempo was also made party and the award was passed in the same and both companies were directed to satisfy the award equally. In the instant M.A.C.T Case No.43 of 2009 New India Assurance Company the insurer of the Tempo has not been impleaded as a party. The jeep which was insured by the appellant insurance company, was insured as private vehicle whereas the same was used as a passenger carrying vehicle which is in violation of the terms & condition of insurance policy.

7. I have heard the learned counsel of parties and perused the material on record. For disposal of this miscellaneous appeal following point of determination is being framed :

(i) whether the m