Priya Soparkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL (ST.) NO.32284 OF 2022 WITH INTERIM APPLICATION NO.739 OF 2023 IN FIRST APPEAL (ST.) NO.32284 OF 2022 The New India Assurance Co. Ltd. …Appellant Versus Prakash Pandurang Gaikwad (Since deceased) …Respondents through legal heirs Ms. Jyoti P. Gaikwad and ors.

Mr. S. S. Dwivedi, for the Appellant.

Mr. Sarthak Diwan, for the Respondent No.6.

CORAM: R. M. JOSHI, J.

DATED: 12^th JANUARY, 2026.

PC:-

1. This Appeal filed by the Insurer of one of the motor-vehicle involved in the accident in question takes exception to the judgment and award dated 5^th August, 2022 passed in M.A.C.P No. 558 of 2009, essentially on the ground that the Tribunal has erred in holding composite negligence of the drivers of both vehicles in occurrence of the accident and has failed to apportion the liability of payment of compensation.

Digitally signed by PRIYA PRIYA RAJESH RAJESH SOPARKAR SOPARKARDate:

2026.01.17 +0530

2. Learned counsel for the Insurer submits that admittedly in this case two vehicles are involved in occurrence of the accident i.e. the car bearing registration No.MH-14 AH-3160 owned by original Opponent No.1 and insured with present Appellant and motor-cycle bearing registration No.MH-12 DP-9300 owned by the Opponent No.3 and insured with Opponent No.4 i.e. Respondent No.6 in the present appeal.

3. It is his submission that having regard to the facts on record, the learned Tribunal ought to have held drivers of both vehicles equally negligent for the occurrence of the accident and should have apportioned the liability of payment of compensation equally. 4. It is his further submission that since the Appellant has deposited entire amount of compensation before the Tribunal, so also Respondent No.6-Insurer has deposited a sum of Rs.15,72,765/- before the Tribunal. No prejudice is likely to be caused to the Claimant, if the said apportionment is done in this appeal.

5. Learned counsel for the Respondent No.6-Insurer of offending motor-cycle claimed that the rider of the motor-cycle cannot be held responsible for occurrence of the accident. Without prejudice to the same, it is his statement that in any event, the contributory negligence of the rider of the motor-cycle cannot exceed 50%. He also makes statement of having deposited Rs.

15,72,765/- before the learned Tribunal.

6. The statements made by the learned counsel for Appellant and Respondents No.6 with regard to deposit of amount of compensation before Tribunal are accepted and relying upon the same, following order is passed.

7. Perusal of the record indicates that there is involvement of motor-cycle and car in the occurrence of the accident. From police papers it can be seen that the accident has occurred on road intersection. Though it is claimed that the accident occurred as the rider of the motor-cycle came in excessive speed and gave dash to the motor car, which ultimately dashed against the deceased pedestrian. It is however pertinent to note that having regard to the spot of the accident both rider of the motor-cycle as well the driver of the car ought to have been taken care in order to ensure that no accident occurred. Drivers of both vehicles seem equally responsible for accident. In any case since deceased is pedestrian and having not contributed in occurrence of the accident, as rightly held by Tribunal, this is case of composite negligence of two vehicles in causing of accident. The law on the point of liability of payment of compensation in case of composite negligence is fairly settled to say that it is open for the Claimants to seek recovery of the compensation from any one or both joint tort-feasures. In such circumstances, it was not open for the Tribunal to apportion the percentage of payment of compensation by Opponents. Tribunal therefore at the stage of deciding claim petition has not committed any error in not apportioning the amount of compensation between them.

8. It is however n