JUDGMENT 1. - These six miscellaneous appeals have been filed under Section 173 of the Motor Vehicles Act, 1988 against the common order dated 11-04-2000 of Judge, Motor Accident Claims Tribunal, Jaipur in Claim Petition Nos.113/98, 115/98, 117/98, 116/98, 1031/98 and 500/99 except claim No.114/98, hence they are being disposed of by this common order. 2. Brief facts giving rise to these appeals are that the appellants filed claim petitions before the Motor Accident Claims Tribunal, Jaipur with the averments that on 30-06-1998 at around 6.00 a.m. deceased Ratan Singh, Bhoop Singh, Inderjeet Singh, Sheolal, Subhash and injured Ram Chandra and Raj Kumar were going in Jeep No.RJ143C701 towards Newai on receiving information about illicit liquor. When the jeep reached near village Jaisinghpura truck No. RJ05G0376 came from the opposite side which was driven rashly and negligently. This truck hit the jeep from the front side because of which Ratan Singh, Bhoop Singh, Inderjeet Singh, Seolal and Subhash died and Raj Kumar and Ram Chandra sustained injuries. Claimant appellants filed claim petition Nos.113/98, 115/98, 117/98, 114/98, 116/98, 1031/98 and 500/99, claiming respective amounts as mentioned in their claim petitions on account of death of Ratan Singh, Bhoop Singh, Inderjeet Singh, Seolal and Subhash and injuries received by Raj Kumar and Ram Chandra. Against respondent No.1 Gopal, ex parte order was passed on 27-10-1998 in all the claim petitions and respondent No. 2 Abdul Latif did not appear before the MACT, Jaipur despite due service on him in all the claim petitions. The claim petitions were contested by the respondent No.3 United India Insurance Company Ltd. on technical ground and fact of accident was not disputed. It was contended by the Insurance Company that the truck was insured with them and if the liability of paying compensation is fixed on them the same may be decided on the principle of contributory negligence. Issue No.1 in Claim Petition Nos. 113/98, 116/98, 117/98 and 115/98 related to death of Ratan Singh, Bhoop Singh, Inderjeet Singh, Sheo Lal and Subhash. Issue No.1 in Claim Petition Nos. 1031/98 and 500/99 related to injuries received by injured Ramchandra and Rajkumar. Five issues were framed in all the claim petitions. After recording the statements of the witnesses the Judge, Motor Accident Claims Tribunal, vide its common order dated 11-04-2000 rejected all the claim petitions. Against the common order dated 11-04-2000 these six appeals have been preferred. 3. 1031/98 and 500/99 related to injuries received by injured Ramchandra and Rajkumar. Five issues were framed in all the claim petitions. After recording the statements of the witnesses the Judge, Motor Accident Claims Tribunal, vide its common order dated 11-04-2000 rejected all the claim petitions. Against the common order dated 11-04-2000 these six appeals have been preferred. 3. Mrs. Naina Saraf, learned counsel appearing for the appellants argued that the observations given by the Tribunal in the impugned order is contrary to evidence which has been recorded by the Tribunal itself. The learned counsel contended that the Tribunal has not appreciated the evidence of AW-6 Ram Chandra who is an injured eye-witness of the occurrence. He stated in his statement that the accident had taken place because the truck was being driven rashly and negligently by the driver. He has also stated that when the truck hit the jeep, the same was on the correct side and it had gone on the wrong side after being hit by the truck. The Tribunal disbelieved this witness only on the ground that the truck hit the jeep twice. The learned counsel for the appellants placed reliance on site plan Ex.4. In the site plan map jeep has been shown about 3 ft. on the wrong side. The learned counsel argued that the site plan is prepared after the incident has taken place and shows the last position of the vehicles where they stopped. The learned counsel for the appellants contended that the site plan should be appreciated in the light of the statement of AW-6 Ram Chandra injured, who has stated that the jeep had gone on the wrong side because of hitting by the truck and the Tribunal has not considered this fact. The learned counsel further contended that an FIR was lodged regarding the accident which was produced before the Tribunal as Ex.3. In the FIR it has been clearly mentioned that the truck had hit the jeep from the opposite side. The Tribunal has failed to appreciate the FIR in the right manner. Further it has been contended that there is no rebuttal by the respondents to prove that the accident had not taken place because of the rash and negligent driving of the truck. The Tribunal has failed to appreciate the FIR in the right manner. Further it has been contended that there is no rebuttal by the respondents to prove that the accident had not taken place because of the rash and negligent driving of the truck. In this regard attention of this court has been drawn on the cases of Said Peer Asraf Shah Jilani and another v. Indra Jeet and others ( 2005 (10) RDD 4556 ; Oriental Insurance Company Limited v. Meena Variyal and others (2007 (2) TAC 417 (SC) : ( AIR 2007 SC 1609 ); Heer Singh and others v. Jai Singh and others (2005 (12) TAC 921) : (AIR 2005 (NOC) 204 (Raj) ; RSRTC and another v. Manorma Devi and others (2005) ACC 798 and Daya Bhai and others v. Shri Gopal and others, S. B. Civil Misc. Appeal Nos. 74, 61, 72, 73, 75, 76, 79, 80, 81 of 1997 (2010 (1) CCR 454 (Raj)) : (AIR 2010 (NOC) 18 (Raj) ). Lastly the learned counsel contended that the order dated 11-04-2000 passed by the Tribunal may be set aside or in the alternative the matter should be remanded back to the Tribunal to decide afresh in the light of the aforesaid judgments. 4. Mrs. Archana Mantri, learned counsel appearing for the Insurance Company on the other hand contended that the Tribunal has rightly passed the judgment after due appreciation of evidence. She has further contended that the claimants have not impleaded the Insurance Company of the Jeep because the appellants are entitled only to claim compensation from the Insurance Company having insurance of the jeep in which they were travelling. The learned counsel further argued that the claimants also have not impleaded the Insurance Company of the jeep because the jeep was not insured. Lastly it has been contended that the appellants are only entitled to claim compensation from the Insurance Company of the jeep. For that purpose reliance has been placed on Minu B. Mehta and another v. Balkrishna Ramchandra Nayan and others (1977 TAC 320 ) and APSRTC and others v. K. Hemalatha and others (2008 (4) TAC 769 (SC) : ( AIR 2008 SC 2851 ). 5. I have considered the arguments raised by both the parties and also perused the record and the rulings cited by the parties. 5. I have considered the arguments raised by both the parties and also perused the record and the rulings cited by the parties. The Tribunal has not properly appreciated the evidence of AW-6 Ram Chandra who is an injured eye-witness of the occurrence. Injured stated in his statement that the accident has taken place because the truck was being driven rashly and negligently. It has also been stated by him in his statement that when the truck hit the jeep, the same was on the correct side and it had gone on the wrong side after being hit by the truck. The site plan Ex.4 shows that the jeep was about 3 ft. on the wrong side. It is an admitted fact that the site plan is prepared after the incident has taken place and it shows the last position of the vehicles where they stopped. In the FIR Ex.3 it has been clearly mentioned that the Truck had hit the jeep from the opposite side. It is also true that there is no rebuttal by the respondent-Insurance Company to prove that the accident had not taken place because of the rash and negligent driving of the truck. 6. In T.O. Anthony v. Karvarnan and others (2008) 3 SCC 748 : AIR 2008 SC (Supp) 1646 ) in paras 6 and 7, the Apex Court held as under: 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 the 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 wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, 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 to as his contributory negligence. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, 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 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." 7. In A.P.S.R.T.C. and another v. K. Hemalata (2008) 6 SCC 767 : ( AIR 2008 SC 2851 ), the Apex Court held in para 11 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 negligently 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 plaintiffs 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 plaintiffs part has also contributed to damage this cannot be ignored in assessing the damages. If the negligence on the plaintiffs 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. 8. In the case of Daya Bhai and others v. Shri Gopal (supra) this court in para 13 held as under : "13. In the present case, from the perusal of the FIR and site plan prepared by the police on the spot, it appears that after the head-on-collision at point A on the road, the truck in question has dragged the Matador for about 50 ft. though the width of the road is 36 ft. but on account of head-on-collision between these two vehicles, in the opinion of this court, it is a case falling within the definition and concept of composite negligence where both the drivers of vehicles in question could be held to be negligent. Learned Tribunal appears to have fallen into error in holding that the driver of the Matador was solely negligent and responsible for the said accident in question. The finding of the Tribunal on issue No. 2 even though neither the owner nor the driver of the truck produced any evidence in rebuttal and they were proceeded ex parte nor the insurer led any evidence before the Tribunal, cannot be sustained." 9. In the case of Oriental Insurance Company and others v. Meena Variyal (2007) 5 SCC 428 in paras 24 and 25, the Apex Court held as under: "24. It was argued by learned counsel for the appellant that since on the finding that the deceased was himself driving the vehicle at the time of the accident, the accident arose due to the negligence of the deceased himself and hence the insurer is not liable for the compensation. Even if the case of the claimant that the car was driven by Mahmood Hasan was true, then also, the claimant had to establish the negligence of the driver before the insured (sic insurer) could be asked to indemnify the insured. The decision in Minu B. Mehta v. Balkrishna Ramchandra Nayan of a three-Judge Bench of this court was relied on in support. 25. The decision in Minu B. Mehta v. Balkrishna Ramchandra Nayan of a three-Judge Bench of this court was relied on in support. 25. In that decision, this court considered the question whether in a claim for compensation under the Motor Vehicles Act, 1939, proof of negligence was essential to support a claim for compensation. On the facts in that case, their Lordships found that the appeal was liable to be dismissed subject to certain directions issued therein. But their Lordships, in the light of the fact that the High Court had discussed the law on the question and it was of some importance, felt that it was necessary to state the position in law. Noticing that the liability of the owner of the car to compensate the victim in a car accident due to negligent driving of his servant is based on the law of tort, the court discussed the scheme of the Act of 1939 and the law on the question. Regarding the view of the High Court that it was not necessary to prove negligence, the Court held: (Minu B. Mehta case, SCC pp. 455-56, Para 33) "33. The reasoning of the two learned Judges is unacceptable as it is opposed to basic principles of the owner's liability for negligence of his servant and is based on a complete misreading of the provisions of Chapter VIII of the Act. The High Courts zeal for what it considered to be protection of public good has misled it into adopting a course which is nothing short of legislation." Their Lordships also noticed that proof of negligence remained the lynchpin to recover compensation. Their Lordships concluded by saying : (Minu B. Mehta case SCC pp. 456-57, para 37) "37. We conclude by stating that the view of the learned Judges of the High Court has no support in law and hold that proof of negligence is necessary before the owner or the Insurance Company could be held to the liable for the payment of compensation in a motor accident claim case." 10. As per the material available on record it is established that there is no rebuttal by the respondent-Insurance Company to prove that the accident had not taken place because of the rash and negligent driving of the truck. As per the material available on record it is established that there is no rebuttal by the respondent-Insurance Company to prove that the accident had not taken place because of the rash and negligent driving of the truck. In these circumstances in my considered opinion, the order of the MACT, Jaipur deserves to be set aside and the matter should be remanded back to the MACT to decide the claim cases afresh. 11. For these reasons the award of the MACT, Jaipur dated 11-04-2000 in Claim Cases Nos. 113/98, 115/98, 117/98, 116/98, 1031/98 and 500/99, is set aside and the appeals filed by the appellants are allowed and the matter is remanded back to the MACT, Jaipur to decide the matter afresh in the light of the aforesaid judgments and the arguments advanced by both the counsel within a period of six months if possible. The Deputy Registrar (Judicial) of this court is directed to sent the record of the cases to the MACT, Jaipur immediately. Both the parties are directed to appear before the MACT, Jaipur on November 15, 2010.Appeals allowed. *******