In cases of composite negligence involving motor vehicles, both owners are jointly and severally liable for the entire compensation, and the insurance company is liable to pay the entire amount.

P. K. MISRA, J.

( 1 ) THE present appeal has been filed under section 173 of the Motor vehicles Act, 1988, by the insurance company challenging the award of the Claims tribunal.

( 2 ) THE claimant-respondent No. 1 filed an application under section 110-A of the motor Vehicles Act, 1939, claiming compensation. According to his case, while he was proceeding with his goods in truck bearing the registration No. ORX 7806 belonging to the present respondent No. 2 on 13. 4. 85, there was a collision between the said truck and another truck bearing registration No. ORU 5828 belonging to the present respondent No. 3. The Oriental Fire and. Genl. Ins. Co. Ltd. , who was alleged to be the insurer, was impleaded as opposite party No. 3 as well as opposite party No. 4 on the footing that both the vehicles had been insured with those two opposite parties. It is obvious that there was no necessity to implead the very same insurance company twice over. Be that as it may, the owners of the trucks, namely, present respondent Nos. 2 and 3, who were respectively opposite party Nos. 1 and 2 before the Claims Tribunal, did not contest the case. On behalf of opposite party Nos. 3 and 4, two sets of written statement were filed denying the allegations made in the claim application.

( 3 ) THE Tribunal on consideration of the evidence held that the claimant sustained injury due to the accident which occurred due to the negligent driving of the drivers of both the vehicles. It further found that the claimant was entitled to a sum of rs. 42,000 in all as compensation and since the accident had occurred due to composite negligence of the drivers of both the vehicles who were equally responsible and since there was no evidence that the vehicle No. ORX 7806 belonging to the present respondent No. 2 had been insured, the claimant was entitled to realise a sum of Rs. 21,000 from the owner of the vehicle No. ORX 7806 and the balance sum of Rs. 21,000 from the insurer of the vehicle No. ORU 5828, as the vehicle had been insured with opposite party No. 4.

( 4 ) THE insurance company (opposite party No. 4 in the claim application) has filed this appeal challenging the direction contained in the award regarding payment of Rs. 21,000 by the insurer. A cross-objection has been filed by the claimant-respondent No. 1 claiming that the entire awarded amount of Rs. 42,000 should be paid by the insurance company.

( 5 ) THE main question in the appeal filed by the insurance company being the quantum of compensation payable and the only question in the cross-objection being the liability of the insurance company to pay the entire amount and not half of the amount as directed, the appeal has been heard without issuing any notice to the owners of the two vehicles, as the aforesaid owners would not be affected adversely in any event.

( 6 ) THE learned counsel appearing on behalf of the appellant has contended that in view of the provisions contained in section 61 of the Employees' State Insurance Act, 1948, and in view of the Orissa employees' State Insurance (Medical benefit) Rules, 1951, specially rule 9 entitling the claimant-respondent No. 1 for medical facilities under the Act and the rules, no compensation is payable and the claim application is not maintainable. The contention raised is not tenable on the face of it. The provisions contained in the Employees' State Insurance Act and the Orissa Employees' State Insurance (Medical Benefit) Rules extending certain medical benefits to the employees covered under such Act and the Rules are not in derogation of the common law right of an injured to get compensation from the tortfeasor. Though the Motor Vehicles Act envisages creation of Claims Tribunal to decide the cases arising out of accidents involving motor vehicles, the basis of such liability (apart from no fault liability) is negligence of the respondents. In other words, if a person suffers any damages due to the negligent action involving the motor vehicle, t