The main legal point established in the judgment is the application of the concept of composite negligence and its implications on the liability of joint tortfeasors.

JUDGMENT

A. K. Rath, J. - The instant appeal has been filed under Sec.173 of the Motor Vehicles Act, 1988 (in short, "the M.V Act") by the claimant assailing the award of the Claims Tribunal.

2. The claimant-appellant filed an application under Sec.166 of the M.V Act for compensation. His case was that he was the Medical Officer of Gop P.H.C. On 11.10.1995, he was returning to Gop in the Government jeep bearing registration number OSP-667 after finishing his work at Tarakore Sterilization Camp. At about 7 P.M at Balinuamuhan near village Junei on Gop-Konark road, there was a collision between the jeep and the bus bearing registration number ORX-9582 coming from opposite direction, as a result of which he sustained injuries. Immediately he was shifted to Gop P.H.C and thereafter to SCB Medical College & Hospital for treatment.

3. Though notice had been issued to opposite parties 1 and 2, but they had chosen not to contest the case and as such, were set ex parte. Opposite party no.3 filed a written statement denying the liability.

4. Stemming on the pleadings of the parties, learned Tribunal framed five issues. Parties led evidence, oral and documentary. On an anatomy of pleadings and evidence on record, learned Tribunal came to hold that the accident took place due to composite negligence of the drivers of both the vehicles. Held so, it awarded an amount of Rs. 1,20,000/- along with interest @ 6% per annum and apportioned the compensation @ 50% between the opposite party no.1 and owner of the bus, opposite party no.2. Liability was saddled with the opposite parties on the ground that the bus was not insured with opposite party no.3.

5. Heard Dr. T.C. Mohanty, Senior Advocate along with Mr.P.K. Singh, learned counsel for the appellant, Mr. Swayambhu Mishra, learned ASC and Mr. G.P. Dutta, learned counsel for respondent no.3.

6. Dr. Mohanty, learned Senior Advocate for the appellant confined his argument with regard to composite negligence on both the vehicles. He submitted that in the case of composite negligence, it is open to the claimant to proceed against any owner of the vehicles. Learned Tribunal came to a finding that due to composite negligence of both the vehicles, the accident took place. Instead of saddling 50% liability on the owner of the bus, the Tribunal ought to have directed the opposite party no1- respondent no.1 herein, to pay the entire amount and recover the same from respondent no.2-oposite party no.2. To buttress the submission, he placed reliance on the decision of the apex Court in the case of Khenyei v. New India Assurance Company Limited and others , (2015) 9 SCC 273.

7. Per contra, Mr. Swayambhu Mishra, learned ASC submitted that the learned Tribunal came to hold that the claimant sustained injuries due to composite negligence of both the vehicles. 50% liability has been saddled with the Government of Orissa opposite party no.1. It is open to the claimant to proceed against the owner of the bus and recover rest 50%.

8. Mr. Dutta, learned counsel for the respondent no.3 submitted that the offending bus was not insured with opposite party no.3. Learned Tribunal has rightly saddled with the compensation on the owner of the vehicle.

9. The seminal question that hinges for consideration is whether it is open to a claimant to recover entire compensation from one of the joint tortfeasors, particularly when in the accident caused by composite negligence of drivers of jeep and bus.

10. An identical matter came up for consideration before the apex Court in the case of Khenyei v. New India Assurance Company Limited and others , (2015) 9 SCC 273. On a survey of earlier decisions, the apex Court held :

"15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negli