The claimant has the right to sue both or any one of the joint tortfeasors to recover the entire compensation in cases of composite negligence, and apportionment of compensation between two tortfeasors as against the claimant is not permissible.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aide the judgement and decree passed in MCOP.No.160 of 2016 dated 07.11.2019 on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Tirunelveli and allow the appeal with costs.)

1. The above appeal has been filed by the Insurance Company challenging the Negligence/liability and quantum fixed by the Motor Accident Claims Tribunal, Tirunelveli in M.C.O.P.No.160 of 2016.

2. A 21 year old man was working as a Lorry Cleaner while sitting as a pillion rider in a motor bike was hit by a Maruthi Omni Van coming in the opposite direction and succumbed to injuries. His father as claimant has filed the claim petition seeking a compensation of a sum of Rs.20,00,000/-.

3. As per the case of the claimant, the driver of the motor bike in which the deceased was travelling as a pillion rider was driving in a high speed towards north. The Maruthi Omni Van belonging to the third respondent was coming from opposite direction without sounding horn in a high speed in a rash and negligent manner and hit against the motor cycle.The accident had occurred only due to the rash and negligent driving of the drivers of the first and third respondents. Hence, the claimant had pleaded for joint and several liability as against the driver of the bike and Maruthi Van.

4. The owner of the bike was impleaded as first respondent and his insurer was impleaded as second respondent. The owner of the Maruthi Van was impleaded as third respondent.

5. The Insurance Company had filed a counter contending that the driver of the bike was not driving in a rash and negligent manner . Only the Maruthi Van coming from the opposite direction was driven in a rash and negligent manner, in a high speed and dashed against the motor bike. The accident had happened only on the ground of fault with the driver of the third respondent. According to the Insurance Company, they are not liable to pay any compensation and the liability is upon the owner of the Maruthi Van which is not insured with them.

6. The Tribunal after considering the F.I.R, Motor Vehicle Inspector''s report and the rough sketch, arrived at a finding that the driver of the motor bike had driven in a rash and negligent manner and the accident had happened on the right side of the road. The driver of the bike had crossed a roundtana and while turning on the right side, he had gone to far right and the accident had happened. That apart, the bike driver was not having driving license at the time of accident.

7. Based upon the above said findings, the Tribunal directed the Insurance Company to pay compensation and recover the same from the owner of the bike.

8. As far as the quantum is concerned, the Tribunal has taken the age of the deceased as 21 and fixed the monthly income at Rs.7,000/- per month and awarded 40% towards future profits and had deducted 50% towards personal expenses and arrived at a total compensation of loss of income at Rs.10,58,400/-. The Tribunal has awarded Rs.15,000/- towards Funeral Expenses and Rs.15,000/- towards loss of estate. This award is under challenge in the present appeal.

9. According to the learned counsel for the appellant, when the claimant himself has pleaded that both the driver of the motor bike as well as the Maruthi Van were at fault and they were driving their respective vehicles in a rash and negligent manner, the Tribunal ought not to have fixed the entire liability upon the Insurance Company of the Motor Bike. He had further contended that the the insurer of the Maruthi Van has not been impleaded. Even assuming that there was a composite negligence, 50% of the liability should have been apportioned to the owner of the Maruthi Van. Therefore, he contended that the award is liable to be set aside.

10. Per contra, the learned counsel for the claimants had contended that when there two joint tortfeasors, it is the option of the claimants either to sue any o