ORDER [ENTITY], J.
1. In this appeal preferred under [SECTION] of the [ACT] (for brevity 'the Act') the legal propriety of the award dated 29-6-2004 passed in [CASE NUMBER] by the Motor Accidents Claims Tribunal, Waraseoni (for short 'the Tribunal') is called in question by the claimants-appellants (hereinafter referred to as 'the claimants').
2. The claimants initiated an action under [SECTION] of the Act for grant of compensation of Rs. 7,09,000/- for the death of the deceased, [ENTITY], as his legal representatives on the foundation that on 19-9-2003 at about 3 o'clock in the morning the deceased was travelling in a Marshall Jeep bearing registration No. MH-26-C/4930 and when it reached near Dabrapara, Bhilai at G.E. Road a truck bearing registration No. KCG-04/ZC 1395 being rashly and negligently driven by the first respondent dashed against it as a result of which the jeep skidded to certain distance and its three tyres came out due to the aforesaid accident. Some of the persons travelling in the jeep sustained grievous injuries and some other died at the spot. Because of the accident the deceased, [ENTITY], breathed his last at the spot. A [CASE NUMBER] for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] at the concerned Police Station.
3. It was pleaded by the claimants that at the time of death of deceased, [ENTITY], he was 21 years of age, able bodied and was serving in a grocery shop from which he was earning Rs. 2,000/- as salary. In addition to the same, he was also getting Rs. 1,500/- from working in the agriculture field. It was contended that he was maintaining the family and his death has caused immense loss to the legal representatives. On various heads the claimants putforth a claim of Rs. 7,09,000/-.
4. The non-applicant driver filed his written statement resisting the factum of negligence by stating, inter alia, that the jeep was moving at a great speed and it was patent that the jeep driver was sleeping and at the time of collision the speed of the jeep was quite high and the driver was unable to control. In essence, the driver of the truck put the full blame on the jeep driver. The owner of the truck chose to remain ex parte before the Tribunal. The insurer resisted the claim of the claimants on the ground that the truck in question was not involved in the accident and it was not insured with it. It was also putforth that the driver of the truck did not have the valid licence to drive a heavy vehicle. It was the stand of the Insurance Company that the claimants had not impleaded the owner, driver and insurer of the jeep, though the driver of the jeep was responsible for causing the accident. The income aspect putforth by the claimants was seriously controverted by the insurer.
5. The Tribunal framed as many as seven issues and came to hold that the accident had occurred due to the negligence of both the drivers and their contribution was determinable at 50% each; that at the time of accident the driver of the truck possessed valid and effective driving licence; that the truck in question was insured with the Insurance Company and the insurance was valid at the time of accident; that the claimants were entitled to receive compensation of Rs. 3,17,712/- but as the liability had to be apportioned, and, therefore, the insurer alongwith the owner and driver would be jointly and severally liable to pay a sum of Rs. 1,58,856/-; that the claimants should be entitled to 8% per annum interest with effect from 20-10-2003, i.e., from the date of presentation of the application of the claim petition till realization of the full amount within a period of two months, and that after expiration of two months the claimants would be entitled to get interest at the rate of 10% per annum on the awarded sum. Apart from the above, the Tribunal also issued directions in which manner the amount would be kept in the fixed deposit and how it shall be disbursed.
6. We have heard Mr. [ENTITY], learned Counsel for the petitioner and Mr. [ENTITY], learned Counsel for the respondent No. 3-Insurer.
7. Questioning the defensibility of the award it is submitted by Mr. [ENTITY], learned Counsel for the appellant that the Tribunal has grossly erred by reducing the amount of compensation by 50% treating it to be a contributory negligence though the analysis made by the Tribunal would clearly establish that it is a case of composite negligence. It is his further submission that the owner, driver and the insurer of both the vehicles, namely, truck or the jeep are to be kept in a singular compartment of joint tort feasors and hence, the legal representatives are entitled to sue any one of the tort feasors and hence, the reasons ascribed by the Tribunal that the owner, driver and insurer of the jeep have not been made as parties and, therefore, the compensation required to be slashed down by 50%. It is canvassed by Mr. [ENTITY] that though the Tribunal has relied on the decision rendered in [PRECEDENT] , and expressed the opinion that it is a case of composite negligence, but has reduced the amount by 50% because of non-impleadment of owner, driver and the insurer on the ground that they stay in the nearby village and, therefore, it was imperative on the part of the claimants to array them as respondents which is unacceptable in law.
8. Mr. [ENTITY], learned Counsel for the respondents submitted that the award passed by the Tribunal cannot be faulted as the claimants have deliberately not made the jeep owner, driver and the insurer as the parties. It is contended by him that the present case would fit into the compartment of contributory negligence and hence, the award passed by the Tribunal cannot be found fault with. Learned Counsel further submitted that there can be apportionment of compensation even in the case of composite negligence and the same having been done by the Tribunal the award is absolutely flawless.
9. Before we proceed to deal with the concept of composite negligence and contributory negligence and the effect of non-impleadment of the owner, driver and insurer of the jeep in which the deceased was travelling, we would like to put in on record that Mr. [ENTITY], learned Counsel for the appellant submitted that he does not intend to assail the amount determined by the Tribunal for the purpose of compensation but his only challenge is with regard to the apportionment inasmuch as the grant of compensation of Rs. 3,17,712/- is just and fair in the case at hand.
10. Because of the aforesaid statement made by the learned Counsel for the appellant we would like to refrain from dwelling upon the same and advert to other issues. From the material brought on record and the findings recorded by the Tribunal it is discernible that the deceased died the accidental death while travelling in the jeep. He was not driving the jeep. He had not contributed to the causation of the accident. In the absence of any contribution for causing the accident, the question of contributory negligence does not arise. In the case of [PRECEDENT]. , the Apex Court dealt with the concept of contributory negligence in the following terms:
The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an 'author of his own wrong'.
11. In [PRECEDENT]. , the Apex Court has explained the concept of contributory negligence thus:
Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning.
12. Tested on the touchstone of the aforesaid parameters, there cannot be any shadow of doubt that in the absence of any role remotely played by the deceased in the causation of accident, it cannot be held that he had contributed to the accident. In fact, as is evincible, he was travelling in the jeep and the accident had occurred because of the collision between the truck and the jeep. Thus, he was a third party in respect of both the vehicles. As far as he is concerned the accident has been caused by the composite negligence by the feasors. This Court in [PRECEDENT], has held as under:
26. On the same principle, in the case of tort-feasors, where the liability is joint and several, it is the choice of the claimant to claim damages from the owner and driver and insurer of both the vehicles or any one of them. If claim is made against one of them, entire amount of compensation on account of injury or death can be imposed against the owner, driver and insurer of that vehicle as their liability is joint and several and the claimant can recover the amount from any one of them. There cannot be apportionment of claim of each tort-feasors in the absence of proper and cogent evidence on record and it is not necessary to apportion the claim.
12.1 From the aforesaid enunciation of law it is quite clear that where the liability is joint and several it is the choice of the claimant to claim from the owner, driver and the insurer of both the vehicles or any one of them. The entire of amount of compensation on account of the injuries or death can be imposed on the owner, driver and insurer of that vehicle. In view of the aforesaid, the conclusion arrived at by the Tribunal that as the owner, driver and insurer of the jeep have not been made parties, therefore, 50% is to be deducted, is absolutely unsustainable. The liability in entirety can be imposed on the insurer of the truck. Therefore, the amount of compensation determined by the Tribunal in favour of the claimants has to be made good by the insurer of the truck.
13. Consequently, the appeal is allowed. The award passed by the Tribunal is modified and it is directed that the amount of compensation determined by the Tribunal be paid to the claimants by the respondent No. 3, Insurer alongwith interest at the 6% per annum from the date of presentation of the application till the date of realisation. The amount already paid shall be deducted. In the peculiar facts and circumstances of the case there shall be no order as to costs.