JUDGMENT : M.R. SHAH, J. 1. As common question of law and facts arise in this group of appeals and as such arise out of the impugned common judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi), Ahmedabad Rural, Ahmedabad (hereinafter referred to as the “Tribunal”) passed in Motor Accident Claims Petition Nos. 452 of 2003 to 455 of 2003, all these appeals are decided and disposed of by this common judgment and order. 2. Feeling aggrieved and dissatisfied with the impugned common judgment and award passed by the learned Tribunal passed in MACP Nos. 452 of 2003 to 455 of 2003 in so far as holding the driver of the Truck No. GJ-1-AT-6785 contributory negligent to the extent of 85%, appellant herein-Insurance Company of said Truck, the New India Insurance Company Limited has preferred present First Appeals. 3. That the vehicular accident between the Truck No. GJ-1-AT-6785 and Maruti Car No. GJ-1-AR-5446 occurred on 26.01.2003 at about 12.30 a.m. That in the said vehicular accident driver of the Maruti Car No. GJ-1-AR 5446 and the passengers in the said Maruti Car died. That in the said accident, initially one Dilipbhai Ganeshbhai Patel who was also passenger in the Maruti Car sustained serious injuries. That at the time of accident Maruti Car was being driven by one Vikas Babusing Barot who died in the said accident. Thus, in the said accident one Janakbhai Ghanshyambhai Patel; Laljibhai Mangaldas Patel and Vikas Babusingh Barot (Driver of the Maruti Car) who all were passengers in the said Maruti Car died. In the said accident one another passenger of the Maruti Car Dilipbhai Ganeshbhai Patel sustained serious injuries and therefore, the heirs and legal representative of deceased Janakbhai Ghanshyambhai Patel, preferred MACP No. 453 of 2003 claiming Rs. 25 lakhs towards compensation; the heirs and legal representative of deceased Laljibhai Mangaldas Patel preferred MACP No. 454 of 2003 claiming Rs. 25 lakhs towards compensation; heirs and legal representative of the deceased Vikas Babusing Barot (driver of the Maruti car), preferred MACP No. 455 of 2003 claiming Rs. 25 lakhs towards compensation. As the injured Dilip Ganeshbhai Patel was seriously injured and he was unconscious at the relevant time and gone in Coma his wife Giraben Dilipbhai Patel preferred MACP No. 452 of 2003 claiming compensation of Rs. 25 lakhs. Thus, MACP Nos. 25 lakhs towards compensation. As the injured Dilip Ganeshbhai Patel was seriously injured and he was unconscious at the relevant time and gone in Coma his wife Giraben Dilipbhai Patel preferred MACP No. 452 of 2003 claiming compensation of Rs. 25 lakhs. Thus, MACP Nos. 453 of 2003 to 455 of 2003 were fatal cases and MACP No. 452 of 2003 was injury case. 3.1. It was the case on behalf of the original claimants that on the date of accident i.e. 26.01.2003 at about 12.30 a.m. in the midnight., the injured Dilipbhai Ganeshbhai Patel along with the deceased Janakbhai Ghanshyambhai Patel; the deceased Laljibhai Mangaldas Patel and deceased Vikas Babusinh Barot were proceeding in a vehicle Maruti Zen Car No. GJ-1-AR-5446 (which was owned by the opponent no. 3) for the Vadodara on the Ahmedabad-Vadodara National Highway No. 8 and the said vehicle was being driven by the deceased Vikas Babusingh Barot and when they reached at nearby the Nandesary Cross roads opposite to the Gopi Hotel, on the National Highway No. 8, at that time, the driver of vehicle Truck No. GJ-1-AT-6785 (which was owned by the opponent no. 1) came in rash and negligent manner, with an excessive speed and, dashed front portion of his vehicle with the rear portion of said car and therefore, the vehicle Maruti Car turned turtle. As a result thereof, all the deceased sustained injuries and succumbed to said injuries, whereas the Injured Dilipbhai Patel sustained serious injurious of multiple fractures at both legs, ribs, skull bone along with the serious head injuries with hemorrhage. Thus, according to the original claimants the accident in question had occurred on account of rash and negligent driving of the driver of the vehicle Truck. The Crime regarding the accident in question was registered before the Chhani Police Station, Vadodara vide C.R. No. I-16 of 2003. 3.2. The claim petitions were opposed by the appellant herein original opponent no. 2 i.e. The New India Insurance Company Limited-insurer of the Truck involved in the accident by filing written statement at Exh.13 in MACP No. 452 of 2003, Exh.16 in MACP No. 453 of 2003, Exh.13 in MACP No. 454 of 2003 and Exh.14 in MACP No. 455 of 2003, wherein inter-alia denied all the facts of the claim petitions regarding the accident, date, time and place of accident. It was specifically contended that the alleged accident had taken place on account of sole negligence of the driver of the Maruti Car and the driver of the Truck was in nowhere responsible for the accident. It was the specific case on behalf of the appellant- Insurance Company that the driver of the truck was going from Vasad towards Vadodara and when he reached near Gopi Hotel, the driver of the Maruti Car came driving the said Maruti Car rashly, negligently and in full speed from Vadodara side and after dashing with the road divider came over to the other side of the road meant for the traffic coming form Ahmedabad towards Vadodara and dashed with the said truck which was going on the correct side of the road. It was the case on behalf of the appellant Insurance Company that Maruit Car should have been driven on the road meant for the traffic coming from Vadodara towards Ahmedabad but it crossed over the road divider and went into the road meant for traffic for Ahmedabad towards Vadodara. It was also the case on behalf of the appellant that with respect to said accident in question First Information Report was given by one Shri Kamleshbhai Himmatlal Thakker with Chhani Police Station being CR-I-16 of 2003. Panchnama of accident was also drawn. It was the case on behalf of the appellant-Insurance Company that the police after investigation in fact held the driver of the Maruti Car responsible for Accident and no charge sheet was filed against the driver of the truck. Thus, it was the specific case on behalf of appellant-Insurance Company that the driver of the Truck was not at all responsible and/or negligent for the accident and accident had taken place due to rash and negligent driving of the driver of the Maruti Car. 3.3. The claim petitions were also opposed by owner of the Maruti Car – Karshanbhai Mangaldas Patel by filing written statement in respective claim petitions. His case was of total denial. 3.4. That thereafter, the learned Tribunal framed the issues at Exh.22 in MACP No. 452 of 2003 and at Exhs. 27, 24 and 18 in respective MACP Nos. 453 of 2003 to 455 of 2003. 3.5. On behalf of the claimants, the claimants led following oral evidence:- Particulars Exh. No. Affidavit filed by the claimant namely Giraben Dilipbhai Patel. 3.4. That thereafter, the learned Tribunal framed the issues at Exh.22 in MACP No. 452 of 2003 and at Exhs. 27, 24 and 18 in respective MACP Nos. 453 of 2003 to 455 of 2003. 3.5. On behalf of the claimants, the claimants led following oral evidence:- Particulars Exh. No. Affidavit filed by the claimant namely Giraben Dilipbhai Patel. 26 Affidavit filed by the claimant no. 1 namely Vinubhai Mangaldas Patel 27 Affidavit filed by the claimant no. 1 namely Chandrikaben Laljibhai Patel 28 Affidavit filed by the claimant namely Vaishaliben Vikas Barot 29 Affidavit of examination in chief of Witness No. 5 Barvantbhai Dahyabhai Chavda 35 Affidavit of examination in chief of Witness No. 6 Dr. Hiteshbhai Himmatlal Mehta 38 Affidavit of examination in chief of Witness No. 7 Dr. Vijay Ratilal Shah 40 Affidavit of examination in chief of Eyewitness Shivabhai Ishwarbhai Nabbodari 57. 3.6. On behalf of the claimants following documentary evidences were brought on record:- Particulars Exh. No. FIR regarding accident 52 Panchnama of scene of occurrence 53 Photographs 60 Insurance Policy of Truck 47 Inquest Panchnama 61 MACP No. 452 of 2003 Particulars Exh. No. Original certificate issued by Dr. Mehta & Dr. Vijay Seth 41 Injury Certificate Disability Certificate (80% body as whole) 39 Certificate of Corporation 62 Physiotherapy Card 63 IT returns Mark 37/1 Medical Report 64 Discharge Card 65 GIC report 66 Medical Bills 67 3.7. On behalf of the opponent driver of the offending truck Usmankhan Nivazkhan Sipai was examined at Exh.44. That thereafter, solely relying upon the deposition of one Shivabhai Ishwarbhai Nabbodari who was examined at Exh.57 who posed himself as eyewitness and ignoring the deposition of other witnesses who were also examined by the claimants namely one Balvantbhai Dahyabhai Chavda who was examined at Exh.35, who was also eyewitness, by impugned judgment and award, the learned Tribunal has held the driver of the truck involved in the accident contributory negligent to the extent of 85% and driver of the Maruti Car contributory negligent to the extent of 15%. 3.8. After holding so, the learned Tribunal has partly allowed the aforesaid claims petitions and was awarded the compensation as under:- Case No. Amount MACP No. 452 of 2003 Rs. 11,56,800/- MACP No. 453 of 2003 Rs. 6,71,600/- MACP No. 454 of 2003 Rs. 6,36,500/- MACP No. 455 of 2003 Rs. 6,30,530/- 3.9. 3.8. After holding so, the learned Tribunal has partly allowed the aforesaid claims petitions and was awarded the compensation as under:- Case No. Amount MACP No. 452 of 2003 Rs. 11,56,800/- MACP No. 453 of 2003 Rs. 6,71,600/- MACP No. 454 of 2003 Rs. 6,36,500/- MACP No. 455 of 2003 Rs. 6,30,530/- 3.9. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal in so far as holding the driver of the truck involved in the accident contributory negligent to the extent of 85%, the appellant herein – Insurance Company has preferred the present First Appeals. 4. Shri Ajay Mehta, learned advocate for the appellant – Insurance Company has vehemently submitted that in the facts and circumstances of the case the learned Tribunal has committed gross error in holding the driver of the Truck No. GJ-1-AT-6785 contributory negligent to the extent of 85% and in holding driver of the Maruti Car No. GJ-1-AR-5446 contributory negligent to the extent of 15% only. 4.1. It is vehemently submitted by Shri Mehta, learned advocate for the appellant – Insurance Company that the findings recorded by the learned Tribunal on negligence and more particularly, holding the driver of the Truck No. GJ-1-AT-6785 contributory negligent to the extent of 85% and in holding driver of the Maruti Car No. GJ-1-AR-5446 contributory negligent to the extent of 15% only are as such perverse and contrary to the evidence on record. 4.2. It is vehemently submitted by Shri Mehta, learned advocate for the appellant that learned Tribunal has materially erred in considering and relying upon the deposition of Shivabhai Ishwarbhai Nabbodari Exh.57 who posed himself to be an eyewitness. 4.3. It is further submitted by Shri Mehta, learned advocate for the appellant-Insurance Company that as such the witness Shivabhai Ishwarbhai Nabbodari is got up eyewitness and as such in fact he was not the eyewitness at all. It is vehemently submitted that firstly the said Shivabhai Ishwarbhai Nabbodari was not at all present at the time of accident and/ or was an eyewitness, which is evident from the fact that neither at the time of preparing panchnama nor even during the course of investigation his statement was recorded by the police nor even he appeared before the Investigating Officer posing himself to be eyewitness. It is submitted that even the said witness Shivabhai Ishwarbhai Nabbodari was not initially examined by the claimants. It is submitted that even the said witness Shivabhai Ishwarbhai Nabbodari was not initially examined by the claimants. It is submitted that as such after examining other witnesses including Balvantbhai Dahyabhai Chavda who was examined at Exh.35 who in fact was the eyewitness and after closing pursis was submitted and thereafter the opponents led evidence and submitted closing pursis, only thereafter and at a belated stage an application was given on behalf of the claimants to permit them to lead further evidence/ additional evidence by examining the said Shivabhai Ishwarbhai Nabbodari and thereafter the claimants examined the said witness. It is submitted that therefore, the learned Tribunal has committed the gross error in considering and relying upon the deposition of the said Shivabhai Ishwarbhai Nabbodari. It is further submitted by Shri Mehta, learned advocate for the appellant-Insurance Company that while considering the issue with respect to negligence, the learned Tribunal has as such ignored, may be conveniently, the deposition/ evidence of the Balvantbhai Dahyabhai Chavda (Exh. 35) who as such was examined by the claimants themselves and who as such was claimants witness. It is submitted that in the entire judgment after narrating what the said witness Balvantbhai Dahyabhai Chavda had said, thereafter there is no discussion whatsoever by the learned Tribunal appreciating or discussing the deposition of the said witness. 4.4. It is further submitted by Shri Mehta, learned advocate for the Insurance Company that as such Balvantbhai Dahyabhai Chavda was also examined by the claimants themselves and in his deposition at Exh.35 he categorically stated that he had seen the accident; he was the eyewitness to the accident and that the Maruti Car was coming from the Vadodara side and proceeding towards Ahmedabad and all of sudden because of rash and negligent driving on the part of the driver of the Maruti Car, it crossed the road divider and came in front of the truck coming from the opposite side i.e. proceeding from Ahmedabad to Vadodara and the accident had taken place. It is submitted that despite the above clear deposition and the evidence, the learned Tribunal solely relying upon the deposition of Shivabhai Nabbodari has observed and held that the Maruti Car was proceeding from Ahmedabad to Vadodara and Maruti Car was ahead of the Truck and because of the rash and negligent driving of the driver of the Truck, the Truck dashed with the rear portion of the Maruti Car and due to which the accident had taken place. It is submitted that the aforesaid finding is absolutely perverse and contrary to the evidence on record and contrary to other evidence also such as FIR given by one Shri Kamleshbhai Himmatlal Thakker (Exh.52) produced and relied upon by the claimants, including deposition of the driver of the Truck etc. It is submitted that therefore, the driver of the truck cannot be said to be in any manner responsible and/ or negligent for the accident and driver of the Maruti Car was sole responsible and negligent for the accident. It is submitted that thereafter the appellant-Insurance Company cannot be held liable to pay the compensation and therefore, the impugned judgment and award passed by the learned Tribunal holding the appellant Insurance Company liable to pay the compensation deserves to be quashed and set aside. 5. Present appeals are vehemently opposed by Shri Hiren Modi, learned advocate appearing for the original claimants. Shri Modi, learned advocate for the original claimants has vehemently submitted that as the findings recorded by the learned Tribunal holding the driver of the Truck No. GJ-1-AT-6785 contributory negligent to the extent of 85% and the driver of the Maruti Car contributory negligent to the extent of 15% are on appreciation of evidence, more particularly, considering the deposition of the Shivabhai Ishwarbhai Nabbodari (Exh.57) and the panchnama of the place of the accident, it is submitted that therefore, the same is not required to be interfered with by this Court in exercise of appellate jurisdiction. 5.1. 5.1. Shri Modi, learned advocate for the original claimants has further submitted that Shivabhai Ishwarbhai Nabbodari who has been examined at Exh.57, in his deposition has categorically stated that he was eyewitness to the accident; he has seen the accident from his garage which was near the Gopi Hotel and that Maruti Car was proceeding towards Vadodara and that the Maruti Car was ahead of the truck and due to rash and negligent driving on the part of the driver of the truck, the truck dashed from behind the Maruti Car and the accident had taken place, in which, all the passengers sustained serious injuries. It is submitted that therefore, as such no error has been committed by the learned Tribunal in holding the driver of the truck contributory negligent to the extent of 85%. 5.2. In the alternate, it is submitted by Shri Modi, learned advocate for the original claimants that so far as deceased Janakkumar @ Ghanshyambhai Patel, Laljibhai Mangaldas Patel and Dilipbhai Ganeshbhai Patel as there were occupants in the Maruti Car, therefore, they can be said to be third party and therefore, even if and assuming that the driver of the Maruit Car was sole negligent for the accident, so far as deceased Janakkumar @ Ghanshyambhai Patel, Laljibhai Mangaldas Patel and Dilipbhai Ganeshbhai Patel are concerned, it will a case of composite negligence and therefore, being one of the tortfeasors, the owner and the Insurance Company of the Truck are liable to pay the compensation and/ or the claimants in MACP Nos. 452 of 2003 to 454 of 2003 can recover the entire amount of compensation from any of the tortfeasors and thereafter it will be between the owner and Insurance Company of the respective vehicles/tortfeasors. In support of his above submissions, he has heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of Khenyei vs. New India Assurance Company Limited and Others, reported in (2015) 9 SCC 273 . He has also relied upon the decision of the Hon'ble Supreme Court in the case of T.O. Anthony vs. Karvarnan and Others, reported in 2008 ACJ 1165 and another decision of the Hon'ble Supreme Court in the case of Andhra Pradesh State Road Transport Corporation and Another vs. K. Hemalatha and Others, reported in 2008 ACJ 2170 , in support of his above submissions. 5.3. 5.3. Relying upon the aforesaid decisions of the Hon'ble Supreme Court, Shri Modi, learned advocate for the original claimants has vehemently submitted that in case of accident between two vehicles and in the case of composite negligence, the claimants are entitled to sue any of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. He has submitted that in the case of Khenyei (supra) in para 22, the Hon'ble Supreme Court has observed and held in para 22.1 to 22.3 as under: 22.1 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. 22.2. 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 his option whole damages from any of them. 22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. 5.4. It is submitted that so far as heirs and legal representative of the aforesaid three deceased occupants are concerned, they can receive the amount of compensation from the appellant also being joint tortfeasors. Making above submissions and relying upon above decisions, it is requested to dismiss the present First Appeals. 6. Heard the learned advocates for the respective parties at length. We have gone through the impugned judgment and award passed by the learned Tribunal. Making above submissions and relying upon above decisions, it is requested to dismiss the present First Appeals. 6. Heard the learned advocates for the respective parties at length. We have gone through the impugned judgment and award passed by the learned Tribunal. We have also considered and gone through the reasoning given by the learned Tribunal and findings recorded by the learned Tribunal while holding the driver of the truck negligent to the extent of 85% and the driver of the Maruti Car involved in the accident contributory negligent to the extent of 15%. We have reappreciated the entire evidence on record. 6.1. At the outset, it is required to be noted that it was the case on behalf of the original claimants that Maruti Car No. GJ-1-AR-5446 at the time of accident was being driven by one Vikas Babusing Barot was coming from Ahmedabad and proceeding towards Vadodara and Maruti Car was ahead of the Truck No. GJ-1-AT-6785 and because of the rash and negligent driving on the part of the driver of truck, the Truck dashed from behind the Maruti Car and accident had taken place. On the other hand, it was the specific case on behalf of the opponents, more particularly, the Insurance Company of the Truck No. GJ-1-AT-6785 that Maruti Car was coming from the opposite side i.e. from Vadodara and proceeding towards Ahmedabad and because of the rash and negligent driving of the driver of the Maruti Car, it crossed and jumped the road divider all of a sudden and came in front of the Truck No. GJ-1-AT-6785 which was in his correct side and accident had taken place. However, solely relying upon the deposition of one Shivabhai Ishwarbhai Nabbodari (Exh.57) who posed himself as an eyewitness for the first time before the Tribunal and in his deposition he stated that Maruti Car was coming from Ahmedabad and proceeding towards Vadodara and the Truck driver dashed behind the Maruti Car, accident had taken place and ignoring further oral as well as documentary evidences which as such were relied upon and led on behalf of the claimants, such as deposition of Balvantbhai Dahyabhai Chavda (Exh.35), FIR (Exh.52) and the deposition of the driver of the truck (Exh.44), the learned Tribunal was held that the driver of the Truck contributory negligent to the extent of 85% and driver of the Maruti Car contributory negligent to the extent of 15%. However, on appreciation of entire evidence on record, the aforesaid finding recorded by the learned Tribunal, cannot be sustained. On appreciation of the entire evidence on record, we are of the opinion that the learned Tribunal has materially erred in ignoring and/or not appreciating the deposition of Balvantbhai Dahyabhai Chavda (Exh.35) and the FIR given by one Shri Kamleshbhai Himmatlal Thakker (Exh.52) and deposition of driver of the truck (Exh.44). It is required to be noted that as such the FIR (Exh.52) was produced and relied upon by the claimants themselves. Therefore, as such there is no question of disputing FIR/contents of the FIR by the claimants, which as such was produced and relied upon by the claimants themselves. In the FIR which was given by an independent person, it is specifically mentioned that Maruti Car was coming from Vadodara and proceeding towards Ahmedabad which all of sudden jumped/crossed the road divider and which came ahead of the truck, due to which accident had taken place. The learned Tribunal has not at all discussed the same. 6.2. In the FIR given by one Shri Kamleshbhai Himmatlal Thakker (Exh.52) which has been specifically stated that Maruti Car was coming from the Vadodara and proceeding towards Ahmedabad and that all of sudden it jumped/crossed the road divider and came in front of the truck. As observed herein above, the FIR has been relied upon by the claimants themselves and the same has been produced by them. As observed by the Division Bench of this Court in the case of New India Assurance Co. As observed herein above, the FIR has been relied upon by the claimants themselves and the same has been produced by them. As observed by the Division Bench of this Court in the case of New India Assurance Co. Ltd vs. Jaysukhlal Maganlal Doshi & Others, reported in 2013 (3) GLR 2283 if the FIR is relied upon by the claimants themselves, the contents of the FIR cannot be ignored. 6.3. Even, Balvantbhai Dahyabhai Chavda who also was the witness examined on behalf of the claimants in his deposition at Exh.35 has categorically stated that he was the eyewitness to the accident; he had seen the accident; that the Maruti Car was coming from the Vadodara and proceeding towards Ahmedabad and truck was coming from Ahmedabad and proceeding towards Vadodara and all of sudden because of the rash and negligent driving on the part of the driver and the Maruti Car, Maruti Car crossed and jumped the road divider and came in front of the truck and the accident had taken place. The learned Tribunal has not discussed and/or appreciated the deposition of the said witness at all. At the cost of repetition, it is required to be noted that even the said witness was also examined by the claimants themselves. 6.4. Even otherwise also, the learned Tribunal has materially erred in relying upon and considering the deposition of Shivabhai Ishwarbhai Nabbodari who for the first time before the learned Tribunal posed himself to be the eyewitness. It is required to be noted and it is not in dispute that during the investigation the statement of Shivabhai Ishwarbhai Nabbodari was not recorded at all by the police officer. Even as admitted by the said witness, he was not present at the time when police prepared the panchnama of the place of accident and he came subsequently. Even he never appeared before the police and/or Investigating Officer posing himself to be eyewitness to the accident. Even he was not cited as witness by the claimants initially and/or even till evidence of the claimants as well as opponent was closed. Even he never appeared before the police and/or Investigating Officer posing himself to be eyewitness to the accident. Even he was not cited as witness by the claimants initially and/or even till evidence of the claimants as well as opponent was closed. Only after closing pursis was submitted by the claimants and thereafter the opponent led the evidence and thereafter they closed the evidence and thereafter at a belated stage and having realized that earlier evidence which was led by them would go against the claimants, on behalf of claimant one application was given permitting them to lead further evidence by examining Shivabhai Ishwarbhai Nabbodari which was subsequently granted and thereafter said Shivabhai Ishwarbhai Nabbodari came to be examined and he posed himself to be eyewitness for the first time before the learned Tribunal. Considering the aforesaid facts and circumstances, we are of the opinion that the learned Tribunal has materially erred in solely relying upon the deposition of the said witness Shivabhai Ishwarbhai Nabbodari and in holding that the Maruti Car was coming from the Ahmedabad to Vadodara and that driver of the truck dashed from behind the Maruti Car and accident had taken place. 6.5. On appreciation of entire evidence on record, we are of the opinion that Maruti Car was coming form the Vadodara and proceeding towards Ahmedabad i.e. opposite side of the truck and that the truck was coming from Ahmedabad proceeding towards Vadodara and that the Maruti Car all of sudden jumped and crossed the road divider and all of sudden it came in front of the truck, due to which, the accident had taken place. It is required to be noted that at the time of accident it was midnight. Considering the aforesaid facts and circumstances, when all of sudden the Maruti Car which was coming from opposite side jumped and crossed the road divider and came in front of the truck and thereafter when the truck dashed with the Maruti Car, the driver of the Truck cannot be said to be responsible and/or liable for the accident at all. The driver of the truck cannot be held negligent for the accident in question and therefore, the learned Tribunal has materially erred in holding the driver of the truck contributory negligent to the extent of 85%. The driver of the truck cannot be held negligent for the accident in question and therefore, the learned Tribunal has materially erred in holding the driver of the truck contributory negligent to the extent of 85%. In the facts and circumstances of the case, driver of the Maruti Car can said to be sole negligent for the accident. Under the circumstances, the appellant Insurance Company cannot be held liable to pay the compensation. 7. Now, so far as the submission of Shri Modi, learned advocate for the original claimants of MACP Nos. 452 of 2003 to 454 of 2003 heirs and legal representatives of deceased Janakkumar @ Ghanshyambhai Patel, Laljibhai Mangaldas Patel and Dilipbhai Ganeshbhai Patel who were occupant in the Maruti Car that as two vehiculars are involved and there are two tortfeasors, therefore so far as deceased occupant are concerned, they can be said to be third party and therefore, it would be case of the composite negligence and therefore, the original claimants of MACP Nos. 452 of 2003 to 454 of 2003 can recover the compensation from any of the tortfeasors including the appellant Insurance Company and reliance placed upon the decision of the Hon'ble Supreme Court in the case of Khenyei (supra), T.O. Anthony (supra) and K. Hemalatha and Others (supra) by the original claimants is concerned, the aforesaid has no substance. At the outset, it is required to be noted and as observed herein above, the driver of the Truck No. GJ-1-AT-6785 cannot at all be said to be negligent for the accident and consequently as such is not held negligent for the accident and the driver of the Maruti Car is held sole negligent for the accident. In light of the above findings, question with respect to composite negligence and/or decision of the Hon'ble Supreme Court in the case of Khenyei (supra), T.O. Anthony (supra) and K. Hemalatha and Others (supra) are required to be considered. As observed by the Hon'ble Supreme Court in the case of K. Hemalatha (supra), the decision which has been relied upon by the learned advocate for the original claimants “composite negligence” refers to the negligence on the part of two or more persons. As observed by the Hon'ble Supreme Court in the case of K. Hemalatha (supra), the decision which has been relied upon by the learned advocate for the original claimants “composite negligence” refers to the negligence on the part of two or more persons. In the aforesaid decision, it is observed that 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 and 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 para 9 and 10, the Hon'ble Supreme Court has observed and held as under: 9. 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 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 the drivers, but about the contributory negligence of the driver concerned. 10. 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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrong doer, 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. 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. 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 stands reduced in proportion to his contributory negligence. 7.1. Therefore, the question of composite negligence would arise only in a case where there is negligence on the part of two or more persons and a person is injured as a result of negligence on the part of two or more wrongdoers. However, in a case where a person who is not held negligence at all and therefore he cannot be said to be wrongdoers, in that case, the aforesaid principle of composite negligence and therefore, the claimants can recover the amount of compensation from such a person would not arise. On fair reading of the aforesaid decisions of the Hon'ble Supreme Court which are relied upon by the learned advocate for the original claimants, we are of the opinion that only in a case where there is negligence (whatever may be percentage) on the part of two or more persons and/or where a person is injured as a result of negligence on the part of two or more wrongdoers, as held by the Hon'ble Supreme Court in the aforesaid decision, in such 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 and in such a case, the injured need not establish the extent of responsibility of each wrongdoer separately. In the aforesaid cases before the Hon'ble Supreme Court two or more persons were held negligent and therefore, it is held that so far as third party are concerned (other than driver of the vehicle who is held negligent to some extent) the claimants (third party) can recover from any of the wrongdoers, as so far as they are concerned, it would be composite negligence. In the present case as held and observed herein above, the driver of the truck cannot be said to be negligent at all and therefore, as such he cannot be said to be wrongdoer and/or tortfeasor and therefore, the question with respect to composite negligent shall not arise and therefore, the claimants of MACP Nos. 452 of 2003 to 454 of 2003 can not recover any amount of compensation from the appellant being insurer-Insurance Company of the Truck. In the aforesaid decisions, more particularly, in the case of K. Hemalatha and Others (supra), the Hon'ble Supreme Court has also further observed and held that 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. It is further observed that 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 stands reduced in proportion to his contributory negligence. 7.2. The word “composite negligence” itself is suggestive of the fact that there must be a negligence to some extent of a particular person. Even the word “wrongdoer” used in the said judgment is also suggestive of the fact that one of the person has also committed some wrong. Therefore, the submission made by Shri Modi, learned advocate for the original claimants that as two vehicles are involved in the accident the claimants who are third parties can recover the compensation from any of the person irrespective of fact that one of the person against whom the award is sought to be executed is not held negligent at all cannot be accepted. 7.3. 7.3. Considering the aforesaid facts and circumstances of the case and findings recorded by us holding the driver of the Maruti Car sole negligent for the accident and holding that the driver of the truck was not at all negligent for the accident and therefore, he cannot be said to be tortfeasor and/or wrongdoers even the claimants of MACP No. 452 of 2003 to 453 of 2003 cannot recover any amount of compensation from the appellant. 7.4. Under the circumstances and for the reasons stated above, the impugned judgment and award passed by the learned Tribunal holding driver of the Truck No. GJ-1-AT-6785 contributory negligent to the extent of 85% cannot be sustained and is hereby quashed and set aside and consequently the impugned judgment and award passed by the learned Tribunal holding the appellant Insurance Company liable to pay compensation cannot be sustained and same deserves to be quashed and set aside. 8. In view of the above and for the reasons stated above, all the appeals succeed. The impugned common judgment and award passed by the learned Tribunal passed in MACP Nos. 452 of 2003 to 455 of 2003 in so far as holding the driver of the Truck No. GJ-1-AT-6785 contributory negligence to the extent of 85% is hereby quashed and set aside and the driver of the Maruti Car is held sole negligent for accident and consequently the impugned judgment and award holding the appellant Insurance Company of the Truck No. GJ-1-AT-6785 liable to pay compensation also is hereby quashed and set aside. On the impugned judgment and award passed by the learned Tribunal being setting aside, any amount deposited by the appellant-Insurance Company pursuant to the impugned judgment and award passed by the learned Tribunal, the appellant-Insurance Company is entitled to get back the said amount, which shall be returned to the appellant-Insurance Company by the learned Tribunal from the amount which is deposited by the appellant- Insurance Company. All these appeals are allowed to the aforesaid extent. No costs. In view of disposal of First Appeals, no order in Civil Applications and are accordingly disposed of.