JUDGMENT : H.K. Rathod, J. Heard learned Advocate Mr. HM Thakkar for appellant insurance company. In this appeal, appellant has challenged award made by claims tribunal, Ahmedabad (Rural) Ahmedabad in claim petition no.1333 of 2003 dated 30.11.2007 wherein claims tribunal has awarded Rs. 3,33,500.00 with 7.5% interest in favour of respondent original claimant. 2. Learned Advocate Mr. Thakkar for appellant raised contention before this Court that claims tribunal has committed an error in not appreciating contention raised by insurance company in respect of contract carriage permit which was not available with owner and driver at the time of accident because that period was coming to an end on 9th March, 2003 and accident occurred on 15th March, 2003 and, therefore, as per section 66(1) of MV Act, owner of vehicle cannot use or permit use of vehicle except in accordance with condition of permit granted and yet vehicle was used contrary to condition of permit granted and, therefore, it amounts to breach of condition incorporated in insurance policy by owner. He submitted that as per section 149(2)(a)(i)(a) of MV Act, there is breach of condition of insurance policy if vehicle is on date of contract of insurance not covered by permit to ply for hire or reward. He submitted that claims tribunal has committed an error in directing appellant insurance company to pay compensation to claimant and then to recover it from owner. He submitted that the moment appellant is permitted by claims tribunal to recover from owner, that would mean that the appellant is not liable to pay compensation to claimant. He submitted that claims tribunal has committed gross error in deciding question of negligence 50:50 per cent of both vehicles. He submitted that claims tribunal ought to have held that the driver of truck involved in accident is liable to the extent of 75% and driver of luxury bus is liable for negligence to the extent of 25%. Except these submissions, no other submission is made by learned Advocate Mr. Thakkar before this Court and no decision has been cited by him in support of the submissions recorded herein above. 3. I have considered submissions made by learned Advocate Mr. Thakkar before this Court. I have also perused impugned award made by claims tribunal. 4. Except these submissions, no other submission is made by learned Advocate Mr. Thakkar before this Court and no decision has been cited by him in support of the submissions recorded herein above. 3. I have considered submissions made by learned Advocate Mr. Thakkar before this Court. I have also perused impugned award made by claims tribunal. 4. Vehicular accident took place on 15.3.2003 between two vehicles namely Luxury bus No. GJ-1-X-9217 and truck No. RJ.4.0639 at about 11.30 p.m. opposite Desai Petrol Pump on Sarkhej Bavla Road in the sim of village Changodar when petitioner and other passengers were going by said luxury bus were going to Palitana and as soon as they reached near the place of accident, offending truck came from opposite side with full speed in rash and negligent manner endangering human lives and dashed with bus and thus accident had taken place. It was the case of claimant before claims tribunal that the claimant had taken treatment for pretty long time as indoor patient and outdoor patient and has spent huge amount for treatment. Therefore, based upon aforesaid facts, claim petition was filed by claimant before claims tribunal. 5. Before claims tribunal, opponent no.3 insurance company filed its written statement at Exh. 20 and opponent NO.6 insurance company filed its written statement at Exh. 29. Both insurance company of respective vehicles made allegations against driver of each other and not accepted liability for payment of compensation. Issues were framed by claims tribunal at Exh. 25 and thereafter, claims tribunal considered evidence on record. Claimant filed affidavit at Exh. 56 as per amended CP Code wherein she had narrated fact of occurrence of accident, involvement of vehicles cause of injury, ownership and insurance thereof, expenses incurred by her and treatment taken by her etc. Claims tribunal has considered evidence of claimant being natural and held that same being natural, required to be accepted. Thereafter, claims tribunal considered oral evidence of Dr.Balkishan Desai at Exh. 58 for proving disability suffered by her with respect to her one eye which has caused damage and lost sight due to head injury sustained by her in said accident. Said doctor has proved certificate of disability Exh. 59 issued by him. Claims tribunal considered evidence of said Doctor and certificate issued by him Exh. 59 and thereafter considered evidence of Dr. Anwar Ibrahim Mansuri Exh. Said doctor has proved certificate of disability Exh. 59 issued by him. Claims tribunal considered evidence of said Doctor and certificate issued by him Exh. 59 and thereafter considered evidence of Dr. Anwar Ibrahim Mansuri Exh. 60 who is eye surgeon and who has proved certificate of disability at Exh. 61 in respect of eye. Thereafter, claims tribunal has considered quantum in respect of which no challenge is made in this appeal and no submission is also made by learned Advocate Mr. Thakkar before this court and, therefore, that aspect is not required to be gone into because learned Advocate Mr. Thakkar is harping only on the aspect of negligence between two vehicles and breach of condition of permit. It is required to be noted that driver of luxury bus and driver of truck have not been examined before claims tribunal by either of the parties and, therefore, claims tribunal decided that issue on the basis of evidence on record. Charge sheet was filed against driver of truck and not against driver of luxury bus. Claims tribunal has discussed this aspect in para 12,13,15,16, 18 and40 of award as under: "12. The petitioner has produced documentary evident with list at Exh.31 and 44 consisting of material documents such as complaint, panchanama of place of accident, injury certificate, medical bills, police statement of petitioner recorded by police, charge sheet filed against driver of truck, treatment books, medical papers, disability certificate of Dr. Balkishan Desai and Dr. AI Mansuri, medical bills for Rs. 7279.38 ps. Ownership and insurance of vehicles involved in the accident out of which material documents such as complaint, panchanama of place of accident, injury certificate, medical bills, police statements, charge sheet, etc. are neither objected nor challenged during cross examination and the same are not controverted or disproved by opponents by producing any documentary evidence in rebuttal. The documentary evidence of ownership and insurance of truck is neither proved nor disproved by either of parties and same is not challenged during cross examination by opponent No.3 insurance company of the truck involved in accident. 13. No other witness has been examined by either of parties hereto. The driver and/or owner of the offending vehicle have not stepped into witness box. 13. No other witness has been examined by either of parties hereto. The driver and/or owner of the offending vehicle have not stepped into witness box. No documentary evidence in rebuttal has been produced by opponent in rebuttal, however, opponent no.6 has produced policy of insurance of vehicles involved in accident at with list at Exh. 64 which is neither proved nor disproved by either of parties and therefore, there is no reason for tribunal to reject evidence of petitioner but to accept it for want any evidence from opponents so far as the occurrence of accident, fact of injuries sustained by petitioner, age of petitioner, involvement of vehicles, ownership thereof, etc. 15. Thereafter, opponent no.3 insurance company has filed written arguments at Exh. 67 contending inter alia that the accident took place between two vehicles of same size however while taking turn by the luxury bus without any signal, accident has occurred and therefore there is no responsibility of the truck driver who was going on his track at moderate speed, however, if the tribunal comes to conclusion that the truck driver is also responsible, it is humbly submitted by him that the negligence of truck driver ought to have been considered at 25% and the bus driver ought to have been considered at 75%/ Moreover, it is contended that considering the evidence of doctors and injury of one eye of petitioner followed by disability, it should be considered at the most 15 per cent for body as a whole permanent disability and so far as quantum is concerned, there is no proof of income of petitioner and, therefore, on the basis of notional income per month, the compensation should be calculated equivalent to no fault liability. 16. Likewise, the learned advocate for opponent no.6 insurance company has argued contending inter alia that there was no permit of vehicle insured and, therefore, the insurance company is not liable to make any payment of compensation because it is a case of commission of breach of conditions of policy. SO far as quantum is concerned, it is argued that as there is no proof of income produced by the petitioner on record, and therefore, on the basis of notional monthly income of Rs. SO far as quantum is concerned, it is argued that as there is no proof of income produced by the petitioner on record, and therefore, on the basis of notional monthly income of Rs. 1500/- the quantum has to be awarded considering permanent disability of 15 to 25 per cent body as a whole as argued by learned advocate for opponent no.3 insurance company holding both drivers of both vehicles liable equally for causing accident. 18. In such peculiar facts of case, there is no reason for this tribunal to disbelieve the facts of the petition and evidence of petitioner as averred and as produced for want of any evidence of driver and owner of vehicles involved in accident. Moreover, it is a case of composite negligence and not the case of contributory negligence. 40. So far as negligence and adverse inference against the driver of offending vehicle and their liability are concerned, it is clear from the evidence that the offending vehicles i.e. Truck and luxury are owned by opponents no.7 and 5 respectively and the drivers of the offending vehicles have not stepped into witness box and therefore, it is difficult for the tribunal to hold either driver of both vehicles liable for causing accident solely and accordingly the opponents are vicariously liable for the negligence of the driver of the vehicles involved in accident and thus opponents are jointly and severally liable to make compensation to petitioner. Even otherwise, it is the case of composite negligence and not the case of contributory negligence. So far as the liability of opponent no.6 insurance company of luxury bus is concerned, it is contended by opponent no.6 insurance company that there is a breach of condition of policy i.e. to say that as per its contention there was no valid and legal permit. With this regard, this tribunal is of the considered view that in case of breach of condition of policy, the opponent no.6 insurance company may be at liberty to recover the amount paid by it to the petitioner from the owner subsequently in view of the observations made herein by the tribunal." 6. With this regard, this tribunal is of the considered view that in case of breach of condition of policy, the opponent no.6 insurance company may be at liberty to recover the amount paid by it to the petitioner from the owner subsequently in view of the observations made herein by the tribunal." 6. In view of the observations made by claims tribunal while deciding question of negligence, since neither of the parties had taken care to examine driver of bus and truck, claims tribunal has drawn adverse inference against driver of both vehicles in respect of their liability and held that it is difficult for tribunal to hold either driver of both vehicles liable for causing accident solely and accordingly opponents are vicariously liable for negligence of driver of vehicles involved in accident. Subsequently pursuant to an application filed by advocate for appellant before claims tribunal, it was clarified by claims tribunal that there is negligence to the extent of 50 % in respect of luxury bus driver and 50 per cent in respect of driver of truck and thus, liability of driver of both vehicles was quantified. Considering the reasoning given by claims tribunal and also considering fact that the appellant had not taken care to see that the driver of luxury bus is examined before claims tribunal for giving correct picture of accident, who was the best person to throw light in this regard, finding of claims tribunal holding driver of both vehicles liable 50:50 per cent cannot be considered to be erroneous When there was no evidence before claims tribunal to decide percentage of negligence as to which driver is responsible for accident, though involvement of both vehicles was proved, according to my opinion, such finding of claims tribunal cannot be considered to be unreasonable, or unjust looking to evidence on record. Claims tribunal has rightly examined issue of negligence and in doing so, no error has been committed by claims tribunal requiring interference of this court. According to my opinion, claimant who was travelling in luxury bus at the time of accident as fare paid passenger was the victim of negligence on the part of driver of truck as well as luxury bus and, therefore, claims tribunal was right in holding responsibility of driver of both vehicles and consequently owner and insurance companies thereof, vicariously. 7. According to my opinion, claimant who was travelling in luxury bus at the time of accident as fare paid passenger was the victim of negligence on the part of driver of truck as well as luxury bus and, therefore, claims tribunal was right in holding responsibility of driver of both vehicles and consequently owner and insurance companies thereof, vicariously. 7. Claimant was travelling as fare paid passenger at the time of accident. Risk of passenger is covered by the terms of policy by insurance company. It is not case of appellant insurance company that the risk of claimant was not covered under the policy of insurance. The only contention is that the owner of luxury bus plied vehicle beyond the period of permit on hire and reward which amounts to breach of conditions of policy of insurance by owner and, therefore, in view of breach committed by owner, for that, insurance company is not liable. According to my opinion, for such breach committed by owner, insurance company cannot avoid its responsibility or liability for payment of compensation to claimant as per terms and conditions of policy. Compulsory insurance covered risk of passenger travelling in luxury bus and such liability cannot be denied by insurance company merely on the ground of breach committed by owner. If owner has committed any breach as alleged by appellant insurance company, then, it is a dispute between owner and insurance company but for that, passenger, who is otherwise entitled for compensation and whose risk has been otherwise covered by policy of insurance, cannot be made to suffer and insurance company cannot be permitted to avoid its liability on such ground but after satisfying award by making payment of compensation to claimant, insurance company is at liberty to recover said amount of compensation from owner if breach is proved by insurance company. Passengers travelling in luxury bus are not party to insurance policy, therefore, they are governed only under the terms and conditions of policy of insurance and if basically insurance policy is covering risk of passengers travelling in luxury bus, then, insurance company cannot deny its liability in respect of such passengers and, therefore, contentions raised by learned advocate Mr. Thakkar in that regard cannot be accepted and same are therefore rejected. Thakkar in that regard cannot be accepted and same are therefore rejected. Claims tribunal has rightly decided this issue giving option to insurance company to recover same from owner and in doing so, no error has been committed by claims tribunal. Giving of right to insurance company to recover compensation from owner of vehicle cannot be considered at par with exoneration of insurance company from its liability to indemnify owner of vehicle. In this case, question of exoneration of appellant insurance company does not arise because breach is committed by owner of vehicle but for that, passenger cannot be made to suffer whose risk has otherwise been covered by policy and same must have to be satisfied first by insurance company being compulsory insurance and, thereafter, it can recover same from owner in accordance with law and, therefore, contentions raised by learned advocate Mr. HM Thakkar in that regard cannot be accepted and same are, therefore, rejected. 8. As regards contention raised by learned Advocate Mr.Thakkar regarding negligence, same cannot be accepted by this court because it is not a case of contributory negligence but it is a case of composite negligence and either of the driver not received any injury and, therefore, question of contributory negligence does not arise. It is a case of composite negligence and apportionment has been made by claims tribunal holding 50:50 per cent liability of both drivers of offending vehicles. Composite negligence refers to negligence on the part of two or more persons. That aspect has been considered by apex court in APSRTC v. K. Hemlatha & Ors., reported in (2008) 6 SCC 767 . In said decision, apex court considered aspect of contributory negligence, test thereof and held that of the two, who was driving his vehicle negligently and rashly and in case both were so doing, who was more responsible for accident and who of the two had the last opportunity to avoid the accident are the relevant facts. On apportionment of damages, it was held that plaintiff can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable reasoned man, he might himself be hit and he must take into account the possibility of others being careless. Relevant Para 11 and 13 is therefore quoted as under : "11. Relevant Para 11 and 13 is therefore quoted as under : "11. To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligence and rashly and in case both were so doing who was more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff's fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might himself be hit and he must take into account the possibility of others being careless." "13. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for the loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then, the issue that arises is not about the composite negligence of all drivers but about the contributory negligence of the driver concerned." 9. Therefore, in view of the observations made by apex court as quoted above, when there was no sufficient evidence on record before claims tribunal for making apportionment of negligence between two vehicles involved in accident, claims tribunal is perfectly justified in holding that the drivers of both vehicles involved in accident are equally responsible for causing accident, means, both are 50:50 per cent negligent. Unfortunately both drivers remained absent and not examined by either of the parties before claims tribunal for assisting claims tribunal to decide negligence of either of the drivers. Unfortunately both drivers remained absent and not examined by either of the parties before claims tribunal for assisting claims tribunal to decide negligence of either of the drivers. Not only that, even the owner of luxury bus is also not examined and any passenger travelling in luxury bus at the time of accident has also not been examined before claims tribunal to point out less negligence on the part of driver of luxury bus and, therefore, it cannot be said that claims tribunal has committed any error in holding that drivers of both vehicles are 50:50 per cent liable and negligent for accident and, therefore, according to my opinion, claims tribunal has not committed any error in deciding this issue which would require interference of this court. In case of composite negligence, claimant is entitled to recover total whole amount of compensation from any of the tortfeasor. This aspect has been considered by apex court in Guddi Devi and others v. Madhya Pradesh State Road Transport Corporation and others, 2008 ACJ 1545 . Relevant para 13 of said decision is reproduced as under: "13. After careful perusal of the statement of this witness, we are not inclined to accept the contention of the learned counsel for the respondent no.1 because the said witness has clearly stated that after the breakdown, the bus has again started and was moving at the time of the accident. There was head on collusion between the two vehicles. Hence, drivers of both the vehicles were equally responsible for the said accident and as has been laid down by the Full Bench of this Court in case of Sushila Bhadoriya 2005 ACJ 831 (MP), we hold that the claimants are entitled to recover the amount of compensation from any of the joint tortfeasors." 10. This aspect is also examined by Division Bench of this Court in New India Assurance Co. Ltd. v. Rajabhai Varsangbhai Bharwad and others, 2006 ACJ 2222 . Relevant observations made by Division Bench of this Court in para 16 are reproduced as under: "16. The second contention raised by the learned counsel for the appellant is that the M.A.C.Tribunal ought not to have considered 50% negligence on the part of the driver of the jeep considering the size of the vehicle. Relevant observations made by Division Bench of this Court in para 16 are reproduced as under: "16. The second contention raised by the learned counsel for the appellant is that the M.A.C.Tribunal ought not to have considered 50% negligence on the part of the driver of the jeep considering the size of the vehicle. It is contended that the size of the luxury bus is much bigger than the size of the jeep and, therefore, M.A.C. Tribunal ought not to have considered 50% negligence on the part of the driver of the jeep. On the very face of it, this contention of the learned counsel for the appellant does not seem to be well founded or based upon any principle of law. Negligence can only be attributed, by looking to the facts and circumstances of a particular case, so as to come to the conclusion as to which vehicle was at fault. Negligence cannot be made proportional to the size of the vehicle or vehicles involved in the accident. It may be possible that the bigger vehicle was being driven cautiously and correctly and that the smaller one was being driven rashly and negligently, or vice versa. This can only be determined by looking into the factual aspect and peculiar circumstances of any given case and no generalisations can be made regarding it. This contention, therefore, is untenable and cannot be accepted." 11. Considering the fact that claimant who was travelling in luxury bus as fare paid passenger, according to my opinion, claims tribunal has rightly decided matter at issue while giving option to appellant to recover same from owner in case if insurance company is able to satisfy that owner has committed breach of condition of insurance policy. According to my opinion, policy was in force at the time of accident and, therefore, insurance company cannot avoid its liability by raising such technical contentions and, therefore, claims tribunal has rightly decided matter and, therefore, there is no substance in this appeal and same is required to be dismissed. 12. In result, this appeal is dismissed. 13. In view of orders passed by this court in first appeal, civil application for stay stands disposed of as not surviving. Amount if any deposited by appellant in registry of this Court be transmitted to claims tribunal immediately. Appeal dismissed.