In a case of composite negligence, the Tribunal can apportion liability between the two owners or insurance companies involved, but the claimant can recover the entire amount from either party and leave it to that party to claim rateable distribution from the other.

ARIJIT PASAYAT, J.

( 1 ) NEW India Assurance Company Limited (hereinafter referred to as 'new India) calls in question legality of the award made by the Member, Second Motor Accidents Claims Tribunal, Southern Division, Berhampur (in short, the 'tribunal' ).

( 2 ) A brief reference to the factual position is necessary for disposal of the appeal. One Ashok Kumar Acharya (hereinafter referred to as the 'claimant) lodged a claim under Section I 10-A of the Motor Vehicles Act, 1939 (in short, the 'act) claiming compensation of Rs. 99,999. 50 paisa from New India, Jamal Mahammad (respondent No. 2), P. K. Kar (respondent No. 3) and Oriental Fire Insurance Co. Ltd. , (hereinafter referred to as the (Oriental ). Basis of claim is described as follows on I1-10-1984 one Baikuntha Bihari Mishra, who was working as Assistant Conservator of Forest asked the claimant to accompany him to go to Dhaupada on a motor bike bearing registration No. ORG 3484 on official duty. While they were proceeding towards Dhaupada from Sorada, a car bearing registration No. ORG 2969 dashed against the motor bike both the vehicles were going at a very high speed and were not observing requisite care and caution. The number of the car dashed against the right leg of the claimant as a result of which he fell down on the road. The driver of the car stopped his vehicle, but instead of rendering any assistance fled away after noticing injury on the claimant. The claimant had to undergo a major operation of petellactomy under general anesthetia of right knee, quadricaps were repaired of right knee and skeletal skin was grafted on 29-11-1984. He was given traction on 1-4-1984. Since he was working as a Forester he found it difficult to carry on his normal duties. On account of physical. disability arising out of the accident, he lost his job. P. K. Kar was the owner of the motorcycle which was insured with New India, while Jamal Mahammad was the owner of the car (ORG 2969 ). That is why they were impleaded in the proceeding before the Tribunal. There was no appearance by either Jamal or P. K. Kar. The stand of the New India before the Tribunal was that claimant being a pillion rider was not entitled to maintain a claim. So far as it was concerned. The Tribunal overruled this objection and held that the New India had liability. However, it was held that the entire award was to be equally paid by both the insurance companies. This direction was given on the basis of its conclusion that both the motor-cycle and the car were equally responsible and liable for the accident, and were to compensate the injured on equal proportion in normal course.

( 3 ) IN support of the appeal, the learned counsel for New India has strenuously urged that the accepted position being that the claimant was a pillion rider, the Tribunal was not justified in directing portion of the award to be indemnified by it. The learned counsel for the Oriental, however, submitted that in order to fasten joint liability, a finding regarding contributory negligence was required to be arrived at. According to him, the conclusions of the Tribunal on the factual aspects are not correct. It is, however, accepted that a pillion rider cannot be construed to be a third party in respect of the vehicle on which he was travelling.

( 4 ) I shall first deal with the plea relating to the question whether there was contributory negligence. Though there is no statutory defintion, in common parlance 'negligence' is categoried as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence