In cases of composite negligence, claimants can recover full compensation from any joint tortfeasor, and apportionment of damages is not permissible unless all tortfeasors are impleaded.

ORAL ORDER

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988 , is preferred by the appellant – original claimant being aggrieved and dissatisfied with the judgment and award dated 12.04.2017 passed by the Motor Accident Claims Tribunal, Gandhidham - Kutchh in Motor Accident Claim Petition No.142 of 2007.

2. In petition under section 163 of MV Act, whereby claimant - Shri Rayasangji Dhanaji Thakor was occupant in Jeep No.Gj- 13-V-1037. Learned Tribunal assessed Rs.1,24,500/- and granted same with interest at the rate of 7.5% p.a. from the date of petition till realization and directed to recover jointly from opponent no.1 and 2 i.e. driver and owner of Jeep. Learned Tribunal in case of composite negligence, went to decide inter-se negligence of two vehicles and held driver of Jeep fully negligent in causing road accident and exonerated opponent no.3 and 4 from liability to pay compensation.

3. Before I take facts of road accident, it deserves to be mentioned that driver of either vehicles have not entered into witness box to unfurl real facts of road accident. Facts which could be taken from the pleadings is that claimant was travelling with family in Jeep No.GJ-13-V-1037 from Samkhiyal to Morbi. When the jeep reached 3 kilometers from Samhiyal, at that time, opponent no.3 driver of Santro Car No.GJ-12-P-7542 came from opposite side in excessive speed and dashed with jeep. Resultantly, the claimant who was occupant in jeep was seriously injured. He was taken to hospital and ultimately, he filed claim petition under section 163 of MV Act for getting compensation.

4. Learned Tribunal fasten liability upon driver and owner of Jeep to pay compensation, perhaps on account of filing of FIR and charge-sheet against driver of Jeep. While fastening liability on driver of jeep to pay compensation, learned Tribunal ignored material aspect that it is case of composite negligence. Use of motor vehicle is sufficient to grant compensation. In case of composite negligence, claimant has election to prefer claim petition against any of the wrong doer due to whose negligence accident took place. The finding of learned Tribunal fastening complete liability upon driver and owner of jeep is not sustainable. Finding of learned Tribunal assessing inter-se negligence of wrong dower under section 163A of the MV Act is violative of very purport of legislation. Proceedings under section 163A cannot be made par with section 166 of MV Act. [see : Shivaji vs Divisional Manager United India [( 2019 (12) SCC 395 ].

5. In case of composite negligence, claimants can recover the amount of compensation jointly and severally from any of the wrong dower in view of judgment of Hon'ble Apex Court in the case of Khenyei (supra). In para 18, the Hon'ble Apex Court has held as under :-

"18. This Court in Challa Bharathamma & Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle – trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after maki