1 S.B. Civil Miscellaneous Appeal No.1711 of 1999. Raju Singh Vs.Ram Singh & Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Miscellaneous Appeal No.1711 of 1999. Raju Singh son of Shri Hargun Singh Faujdar VERSUS Ram Singh son of Shri Kalya Singh & Others Date of Order :::: 12/11/2009 Hon'ble Mr. Justice Dalip Singh Mr. Ram Singh Rathore, Counsel for the claimant-appellant Mr. Vizzy Agarwal, Counsel for the Respondents *** By the Court : Heard learned counsel for the parties and perused the record as well as the award of the learned Tribunal. This miscellaneous appeal, under Section 173 of the Motor Vehicles Act, 1988, has been filed by the claimant- injured, who suffered injuries in a motor accident, which occurred on 15.08.1998, before the learned Motor Accident Claims Tribunal, Jaipur City, Jaipur, wherein the learned Tribunal determined the compensation amount of Rs.82,000/-. However, the learned Tribunal came to the conclusion that the case was one on composite negligence and since only the driver, owner and insurer of only one of the 2 S.B. Civil Miscellaneous Appeal No.1711 of 1999. Raju Singh Vs.Ram Singh & Others vehicles involved in the accident had been impleaded as party, the claim of the appellant was reduced to half and decreed to that extent against the respondents. Learned counsel for the respondents has relied upon the judgment of the Hon'ble Supreme Court in the case of T.O. Anthony Vs. Karvarnan and Others, reported in (2008) 3 S.C.C. Page 748, wherein in Para Nos. 6 and 7 of the judgment their Lordships of the Hon'ble Supreme Court while dealing and explaining the case of composite negligence and contributory negligence has held, as follows : 6. “Composite negligence” refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has th choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoers separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or person, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred 3 S.B. Civil Miscellaneous Appeal No.1711 of 1999. Raju Singh Vs.Ram Singh & Others to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence”. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore, where the injured is himself partly liable, the principle of “composite negligence” will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error”. On the basis of the above, the learned counsel for the claimant-appellant submitted that it was not at all necessary for the claimant to have impleaded the owner, driver and insurer of the second vehicle and, therefore, he was entitled to recover the entire amount from the owner, driver and insurer of 4 S.B. Civil Miscellaneous Appeal No.1711 of 1999. Raju Singh Vs.Ram Singh & Others the one vehicle alone, as in the present case. He, therefore, submits that in apportioning the liability and holding that the appellant entitled to only 50% of the claimed amount is erroneous on the part of the insurance company. Learned counsel appearing for the respondents, on the other hand, contended that in any evident when there are two or more joint tortfeasor the claimant must implead all of them, as party to the petition, as the respondents in this case would have the right to recover the amount from the other joint tortfeasor. I have considered the rival submissions and perused the judgment of the Hon'ble Supreme Court, quoted here-in-above. So far as the claim of the appellant is concerned, I am of the view that the learned Tribunal committed a serious error of law after having held the present case to be a case of composite negligence for awarding only 50% of the amount to the claimant-appellant. Hon'ble Supreme Court has clearly laid down that in the case of composite negligence each of the wrongdoers is jointly and severally liable to the injured and it is the choice of the injured claimant to proceed against all or any of the wrongdoers. So far as the submission of the learned counsel for the respondents is concerned, suffice it to say that the 5 S.B. Civil Miscellaneous Appeal No.1711 of 1999. Raju Singh Vs.Ram Singh & Others respondent, if he had any objection or claim against the owner, driver or insurer of the other offending vehicle then the respondents would have moved an application for impleading them, as party to the claim petition and made a claim against the other party. Not having done so, the respondents cannot in the present case contend that he must have a right to recover the amount from the owner/insurer of the other offending vehicle, who are not before this Court in this appeal. In any event, so far as the claimant-appellant is concerned, the right of the claimant-appellant to recover the entire amount from the respondents, who has been impleaded, as party cannot be apportioned or reduced to half, as has been done by the learned Tribunal. The award passed by the learned Tribunal by reducing the amount by 50% of Rs.82,000/-, as computed is, therefore, set aside. The claimant-appellant is entitled to get the entire amount, as determined by way of compensation for the injuries suffered in the motor accident, in question, which is Rs.82,000/- from the respondents. Learned counsel for the claimant-appellant further contended that the learned Tribunal has committed serious error of law in not awarding the interest and has merely held that in the event of amount not being paid within the stipulated period of 45-days from the award then only in that eventuality, 6 S.B. Civil Miscellaneous Appeal No.1711 of 1999. Raju Singh Vs.Ram Singh & Others the claimant would be entitled to interest. So far as the above contention is concerned, I am of the view that the same deserves to be accepted, as the claimant is entitled to interest, which would follow the award of compensation. In that view of the matter, the appeal is allowed. The claimant-appellant would be entitled to interest on the entire amount of Rs.82,000/- from the date of filing of the claim i.e. 30.10.1998 up to the date of the payment by the respondents @ 12% per annum, which was awarded by the learned Tribunal. So far as the balance amount of Rs.41,000/-, which is allowed by this court is concerned, the claimant-appellant would be entitled to the same with interest @ 6% per annum with effect from the date of filing of this appeal i.e. 10.09.1999 up to the date of payment. The amount shall be deposited by means of a demand draft in favour of the claimant with the learned Tribunal. This miscellaneous appeal stands allowed as aforesaid. There will be no order as to costs. (Dalip Singh), J. ashok/