236 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 15.09.2025 New India Assurance Company Ltd. ... Appellant Versus Sarabjit Kaur and Others ... Respondents FAO-1802-2014 (O&M)

New India Assurance Company Ltd. ... Appellant Versus Sarabjit Kaur and Others ... Respondents CORAM : HON'BLE MRS. JUSTICE ALKA SARIN Present : Mr. Ashwani Talwar, Advocate for the appellant in both the appeals.

Mr. Parvez Chugh, Advocate for respondent No.3 in FAO-1801-2014 and for respondent No.4 in FAO-1802-2014.

ALKA SARIN, J. (Oral)

1. This order shall dispose off both the above-captioned appeals filed by the Insurance Company challenging the awards dated 16.01.2014 passed by the Motor Accident Claims Tribunal, Sri Muktsar Sahib (hereinafter referred to as the ‘Tribunal’) in claim petitions being MACT-11-2012 and MACT-12-2012 filed by the claimant-Sarabjit Kaur.

2. The only ground for filing the present appeals is that it was held to be a case of composite negligence. Though the Insurance Company has paid the entire amount of compensation to the claimants, however, it is unable to recover the same from the joint tortfeasor inasmuch as the Tribunal has failed to determine the extent of their negligence.

3. Leaned counsel for the appellant has relied upon the judgment in Khenyei vs New India Assurance Co. Ltd. & Ors. [2015(4) RCR (Civil) 532] to contend that the claimants can realize the amount from either of the tortfeasors however the joint tortfeasor would have the liberty to recover the same, after making the whole payment of compensation, from the other joint tortfeasor.

4. Per contra learned counsel for respondent No.3 would contend that the amount can only be recovered in execution proceedings and no order can be passed in the present appeal.

5. Heard.

6. In the present case it has been held to be a case of composite negligence however the Tribunal failed to determine the extent of the negligence. Though admittedly the claimants have recovered the entire amount of compensation from the Insurance Company, however, the Insurance Company is seeking recovery rights against the joint tortfeasor.

Hon’ble Supreme Court in the case of Khenyei (supra) 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 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 tort 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 negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at