Jha, J.

( 1. ) This case is referred to the larger Bench to settle the question whether apportionment is permissible in case of composite negligence. This court has decided a number of cases on the question of composite negligence and due to divergent views pertaining to composite negligence, the dispute is referred to the larger Bench.

( 2. ) First case decided on this question is of Manjula Devi Bhuta v. Manjusri Raha, 1968 ACJ 1 (MP). In this case, the court considered types of negligence including composite negligence and contributory negligence and after considering the difference between contributory negligence and composite negligence, it is held that when the victim has suffered injuries or death is caused on account of act of two vehicles without his fault, then claimant is free to choose any of the joint tortfeasors and claim compensation from him. While considering this aspect, it is held that in our view where as a result of collision between two motor vehicles, a person other than their driver, is injured, the Tribunal will not fix contribution as between the persons liable (apart from specifying the liability of the insurer).

( 3. ) In the case of Gujarat State Road Trans. Corpn. v. Shardabai, 1997 ACJ 649 (MP), Division Bench of this court while interpreting the judgment in the case of Manjula Devi Bhuta, 1968 ACJ 1 (MP), has held that claimant has right to recover whole amount of the compensation from the owner of one vehicle without impleading the owner and driver and insurance company of the other vehicle.

( 4. ) In the case of Vimla Gangotia v. National Insurance Co. Ltd., 1995 ACJ 53 (MP), it is held that it is proper to apportion the inter se liability and specify the amount payable by the two tortfeasors, while interpreting the judgment in the case of Manjula Devi Bhuta, 1968 ACJ 1 (MP).

( 5. ) In case of National Insurance Co. Ltd. v. Chand Ratan, 2003 ACJ 361 (MP), it is held that in composite negligence, both tortfeasors are severally and jointly liable to pay the compensation to the claimant. It is the discretion of the claimant to proceed against both the tortfeasors or against one. The remedy of the tortfeasor who is proceeded against is to recover the amount from the other tortfeasor. The inter se liability of tortfeasors can be decided to avoid the multifariousness of the proceed- ings. However, while considering the case of Manjula Devi Bhuta, 1968 ACJ 1 (MP), it is held in para 6-A of the judgment that while referring to the decision of this court in Manjula Devi Bhuta and also on the observations made in Law of Torts, 22nd Edn., 1992 by Justice G.P. Singh, that in composite negligence, apportionment of compensation between two tortfeasors is not permissible. While referring to the judgment in the case of Kirti v. Rajendra, 2000 ACJ 663 (MP), wherein it is held that in composite negligence, the amount of compensation cannot be apportioned and the claimants cannot be directed to proceed to recover the apportioned amount from each vehicle. After referring to this judgment, it is held that liability of tortfeasors, inter se, can be decided.

( 6. ) In the case of Hullanbai v. Jagdish Prasad, 1991 ACJ 198 (MP), a Division Bench of this court has held that apportionment of inter se liability is permissible and liability was apportioned. While deciding the composite negligence, it is held that every wrongdoer is liable and it does not lie in the mouth of one wrongdoer to say that though I am also responsible, yet the other man was also equally responsible for the wrong and on this basis, he cannot avoid the liability. It is further held that normally in case of composite negligence, it is not possible to fix the liability among the different drivers but both are jointly and severally liable to the claimant because they are joint tortfeasors. However, in para 17, it is held that the liability for payment of the amount of the award of the truck owner, the insurance company and the truck driver shall be