IN THE HIGH COURT OF ORISSA AT CUTTACK MACA NO.933 of 2023 In the matter of an application under Section 173 of Motor Vehicle Act, 1988.

………………

Smt. Jharana Pakhira …. Appellant -versus-

Chandra Mohan Parmanik & …. Respondents Another For Appellant : M/s. B.B. Singh, P.B. Singh & N.

Panigrahi, Advocate For Respondent No.2: M/s. A.A. Khan, S.K. Mishra, S.K. Sahoo, J.P. Tripathy, Z.A. Khan and S. Mohanty, Advocate PRESENT:

THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY -----------------------------------------------------------------------

Date of Hearing:20.03.2025 and Date of Judgment: 20.03.2025 -----------------------------------------------------------------------------

Biraja Prasanna Satapathy, J

1. This matter is taken up through Hybrid Mode.

2. Perused the office note. Since notice on Respondent No.3 has been duly served on her jointly living sister, notice against the said respondent is treated as sufficient.

3. Heard learned counsel appearing for the parties.

4. The present appeal has been filed inter alia challenging Judgment dtd.17.07.2023 so passed by the learned 3^rd M.A.C.T, Balasore in MAC Case No.68 of 2021. The aid claim application was filed by the claimant-appellant seeking grant of compensation in respect of the death of the deceased Sapan Pakhira in a road accident which took place on 03.02.2021.

5. It is the case of the appellant-claimant that the deceased was travelling in a auto-rickshaw bearing Regd. No.OD-01AG-0788. While the said auto-rickshaw was going on the left side of the road, the truck bearing Regd. No.OD-01D-9411 caused the accident, coming from the front side. It is contended that since because of the negligence on the part of the driver of both the vehicles, the accident occurred and the deceased succumbed to the injury, on the ground of composite negligence, the Tribunal should have held the respondent-company under which the auto-rickshaw was insured, to pay the compensation and recover the same from the owner of the offending truck bearing Regd. No.OD-01D-9411.

5.1. In support of the submission, reliance was placed on a decision of the Hon’ble Apex Court in the case of Khenyei Vs. New India Assurance Co. Ltd. & Others, 2015(2) T.A.C 677 (S.C ). Hon’ble Apex Court in the said decision in para 18 has held as follows.

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 nin the executing Court concerned if the dispute between the insurer and 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 2/3^rd and 1/3^rd of respective drivers. Thus, 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 making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tor-feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.

What emerges from the aforesaid discussion is as follows:

(i) 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.

(ii) In the case of composite negligen