ORAL ORDER

1. First Appeal No.1335 of 2011 and First Appeal No.1336 of 2011 were heard by the Division Bench and both the appeals came to be dismissed by an order dated 08.02.2022. The appeals were raised by the Oriental Insurance Co. Ltd. The present First Appeal is also arising from the same accident, which is against the judgment dated 04.07.2019 by Motor Accident Claims Tribunal (Main), Mahesana in M.A.C.P. No.810 of

2007.

2. Through the grounds of appeal inter alia the primary challenge is to the decision under the issue of negligence, where the Tribunal had considered sole negligence of the driver of Truck being Registration No.MP-09-KA-6255.

3. In the referred First Appeal No.1335 of 2011 and First Appeal No.1336 of 2011, the Division Bench has affirmed the observation of the Tribunal attributing 80% negligence to the driver of the truck and 20% negligence of the deceased motorcyclist. The decision was given in M.A.C.P. Nos.799 of 2007 and 809 of 2007 by Motor Accident Claims Tribunal, Mahesana on 29.11.2010;

while the impugned decision is dated 04.07.2019.

4. In view of the fact that the judgment earlier decided on 29.11.2010 has been confirmed by the Division Bench, applying the principle of res judicata, the said observation is required to be followed.

5. Hence, here, in this case, the negligence of the truck driver is required to be decided as 80% and that of the deceased motorcyclist as 20%. Thus, the observation of attributing sole negligence of driver of Truck No.MP-09-KA-6255, would stand modified to the extant of 80%.

6. The case of the claimant would be as of composite negligence, thus, in accordance to judgment of Khenyei Vs. New India Assurance Company Ltd., reported in (2015) 9 Supreme Court Cases 273, the learned Tribunal was required to decide the composite negligence factor. It is to be noted that in the case of Khenyei Vs. New India Assurance Company Ltd. (supra), it has been laid down in paragraph 22 to 22.4 as under:

“22. What emerges from the aforesaid discussion is as follows :

22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.

6.1 Thus, in view of the judgment of Khenyei Vs. New India Assurance Company Ltd. (supra), the claimant would be entitled to recover the entire amount from any of the tort feasors. There is no reason to entertain any other grounds raised in the appeal.

7. In view of the above, the appeal is partly allowed. No costs. Record and proceeding be sent back to the concerned Tribunal forthwith, if received. Pending Civil application shall stand d