JUDGMENT : B.A. Patil, J. 1. The present appeal has been preferred by the appellant-insurer being aggrieved by the judgment and award dated 24.11.2014 passed by the 3rd Additional District Judge and 4th Additional Motor Accident Claims Tribunal, Belagavi, in MVC No. 637 of 2012. 2. Heard. Though the appeal is listed for admission, with consent of the Learned Counsel appearing for the parties, it is taken up for final disposal. 3. Brief facts of the case are that on 10.09.2011, the petitioner-Bharamappa was proceeding on his motor cycle bearing Registration No. KA-49-K-3335 and when he came near Nimra Hospital, at that time, the driver of the car bearing registration No. KA-37/M-4370 suddenly opened the door and as a result, the petitioner who was proceeding on the motor cycle hit the door of the car and in that process, petitioner fell down. At that time, a 407 maxi cab bearing registration No. KA.23/6419 which was coming behind the motor cycle of the petitioner, dashed to him and as a result of the same the petitioner sustained injuries. Immediately, he was shifted to Nimra Hospital, Gadag, wherein he was admitted as an inpatient from 10.09.2011 to 09.10.2011. For having sustained injuries, the claimant filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation. In pursuance of the notice, respondent Nos. 1, 2 and 4 appeared and filed their statement of objections. Respondent No. 3 did not file any written statement. The first respondent by denying the contents of the petition further contended that the said vehicle has been insured with the second respondent, the policy was valid and was in currency and, as such, he is not liable to pay the compensation. The second respondent filed its objections by contending that the driver of the car was not having a valid and effective driving licence, as such, there is a breach of policy conditions and hence it is not liable to pay any compensation. It was further contended that subsequently the vehicle was falsely implicated to claim compensation. It further contended that the compensation claimed is on the higher side. 4th respondent filed its statement of objection. It was further contended that subsequently the vehicle was falsely implicated to claim compensation. It further contended that the compensation claimed is on the higher side. 4th respondent filed its statement of objection. By denying the contents of the petition, it was contended that the rider of the motorbike was not having a valid and effective driving licence without which he could not have drove the motor cycle and the claimant has not observed the opening of the door of the car and as such, the accident took place due to the fault of the claimant himself. On these grounds, he prayed for dismissal of the said petition. On the basis of the above pleadings, the Tribunal framed the following issues: 1. Whether the petitioner proves that the accident that took place on 10.09.2011 at about 14.00 hours, while the petitioner was on his motor cycle No. KA-49/K-3335 near Nimra Hospital, in Gokak town, was due to the rash and negligent driving of the driver of car bearing No. KA-37/M-4370 and 407 Maxicab No. KA-23/6419? 2. Whether the petitioner proves that he has suffered permanent disability due to the injuries caused in the alleged accident? 3. Whether the petitioner is entitled to compensation, if so for what amount and payable by whom? 4. What is the final award? After hearing the Learned Counsel for the parties, the impugned judgment and award was passed. Assailing the said judgment and award, respondent No. 2-insurer is before this Court. 4. While assailing the impugned judgment and award, the Learned Counsel for the appellant contended that the Tribunal has seriously erred in fastening the liability on the insurer to an extent of 90% of the award amount. Secondly, it is contended that the Tribunal has wrongly answered the negligence issue and has apportioned and fixed 90% negligence on the part of the driver of the car and only 10% on the part of the driver of the maxi cab, as he could have avoided the accident, if, he had maintained safe distance and was at a moderate speed. Therefore, the Tribunal could have held that both the drivers are joint tort-feasors and are equally liable to pay the compensation. Therefore, the Tribunal could have held that both the drivers are joint tort-feasors and are equally liable to pay the compensation. She further contended that the Tribunal has not noticed the fact that the rider of the motor bike was holding a learners licence and he was not accompanied by the person who is holding a valid and effective driving licence and as such he has also contributed to the alleged accident. On these grounds she prayed for allowing the appeal by setting aside the impugned judgment and award by fastening the liability equally on the insurers of both the vehicles. 5. Per contra, Learned Counsel on behalf of respondent No. 1 by justifying the impugned judgment and award contended that no criminal case has been registered against the rider of the motor cycle and a case has been registered as against the driver of the car as well as the maxi cab and as such the Tribunal has rightly held that the driver of the car is liable to an extent of 90% and the driver of the maxi cab to an extent of 10% and prayed for dismissal of the appeal. 6. The Learned Counsel for the owner also justifies the impugned judgment and award and prays for dismissal of the appeal. 7. Learned Counsel appearing on behalf of respondent No. 4 insurer of the motor cycle vehemently argued and contended justifying the judgment and award passed by the Tribunal. He further contended that if the driver of the car had not opened the door, the accident would not have taken place and the rider of the motor cycle would not have sustained the injuries. Under these circumstances, he prayed for dismissal of the appeal by confirming the judgment and award passed by the Tribunal. 8. The accident is not in dispute so also the involvement of the offending vehicles insured with respondent No. 2 and respondent No. 4-insurers. 9. The main contention taken up by the learned counsel appearing for the appellant is that the apportionment of the liability which has been made by the Tribunal is not in accordance with law and the facts of the case. 9. The main contention taken up by the learned counsel appearing for the appellant is that the apportionment of the liability which has been made by the Tribunal is not in accordance with law and the facts of the case. During the course of argument, she contended that the driver of the maxi cab could have avoided the accident, if he had maintained a safe distance between the two vehicles and had driven the said vehicle at a moderate speed. The fact remains that the accident took place when the rider of the motor cycle was proceeding near the Nimra hospital at which time, the driver of the car bearing registration No. KA- 37/M-4370 suddenly opened the right side door of the car which came in the way of the motor cyclist, as a result of which, the rider-petitioner fell down and at the same time, a maxi cab which was coming behind the motor cycle hit the motor cyclist, as a result of which, he sustained injuries in the alleged accident. As could be seen from the facts, the accident in question is not a contributory negligence but a composite negligence. There is difference between contributory and composite negligence. In case of contributory negligence, a person who suffered injury or died contributing to the accident, he cannot claim compensation to the extent of his contribution of negligence, but in case of composite negligence, a person who has suffered has not contributed to the accident but has suffered due to the out come of combination of negligence of two or more persons. This principle has been laid down in the case of Khenyei vs. New India Assurance Company Limited and Others, (2015) 9 SCC 273 at para 15 and 16. By going through the dictum of the Hon'ble Apex Court in the case quoted supra, composite negligence refers to the negligence on the part of two or more person: where a person is injured as a result of negligence on the part of two or more wrongdoers, it is stated that the person was injured on account of the composite negligence of those wrongdoers. In case of composite negligence, each wrongdoer is jointly and severally liable to pay the compensation to the injured and he can proceed as against any one of the tort-feasors to recover the same. In case of composite negligence, each wrongdoer is jointly and severally liable to pay the compensation to the injured and he can proceed as against any one of the tort-feasors to recover the same. In that light, 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. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Pawan Kumar and Another vs. Harkishan Dass Mohan Lal and Others, (2014) 3 SCC 590 at paras 7 to 11 which read as under: "7. The distinction between the principles of composite and contributory negligence has been dealt with in Winfield & Jolowicz on Tort (Chapter 21) (15th Edn. 1998). It would be appropriate to notice the following passage from the said work: "Where two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tort-feasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law is such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tort-feasor against the others. It is greatly to the plaintiff's advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in case where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role. * * * The question of whether there is one injury can be a difficult one. The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role. * * * The question of whether there is one injury can be a difficult one. The simplest case is that of two virtually simultaneous acts of negligence, as where two drivers behave negligently and collide, injuring a passenger in one of the cars or a pedestrian, but there is no requirement that the acts be simultaneous........" 8. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony followed in K. Hemlatha. 9. Paras 6 and 7 of T.O. Anthony which are relevant may be extracted herein-below (SCC p. 751) "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." 10. In the present case, neither the driver/owner nor the insurer has filed any appeal or cross-objection against the findings of the High Court and both the vehicles were responsible for the accident. In the absence of any challenge to the aforesaid part of the order of the High Court, we ought to proceed in the matter by accepting the said finding of the High Court. From the discussions that have preceded, it is clear that the High Court was not correct in apportioning the liability for the accident between drivers/owners of the two vehicles. 11. We, accordingly, hold that the drivers/owners of both the vehicles are jointly and severally liable to pay compensation and it is open to the claimants to enforce the award against both or any of them. 11. We, accordingly, hold that the drivers/owners of both the vehicles are jointly and severally liable to pay compensation and it is open to the claimants to enforce the award against both or any of them. The order of the High Court dated 5-7-2006 is modified to the extent indicated above and the appeal is allowed." But, however, when there is contributory negligence, then under such circumstances, there has to be appreciation of evidence and facts so as to fix the liability for the purpose of recovery amongst the tort-feasors subsequently because of the reason that right of recovery is foisted as per the apportionment made by the Tribunal. In the instant case on hand, though, it is contended that the petitioner contributed to the alleged accident, and was holding learner's licence, no charge sheet has been filed as against him. Be that as it may. The contention taken up by the insurer has not been proved. In that light, the Tribunal, after assessing the facts and circumstances, has come to the conclusion that the driver of the car has contributed to the alleged accident to an extent of 90% and the driver of the maxi cab has contributed to the accident to an extent of 10%. But when the facts and circumstances of the case are looked into, it is the driver of the car who has opened the right side door all of a sudden without taking proper care and caution which a reasonable driver could have taken and as a result of which the motor cyclist hit against the door of the car which made him to fall down and at that the same time, a maxi cab which was coming behind the motorcyclist, hit him and as such the accident took place. When the accident has taken place as stated above, then under such circumstances, the accident is as a result of composite negligence of both the drivers. But the only question which remains is the apportionment of the negligence of each of the drivers and whether the driver of the maxi cab was having any chance to avoid the accident in question? 10. To determine the question as to who contributed to the accident and to what extent, it becomes relevant to ascertain as to who was rash and negligent and who of the two had the possibility of avoiding the accident. 11. 10. To determine the question as to who contributed to the accident and to what extent, it becomes relevant to ascertain as to who was rash and negligent and who of the two had the possibility of avoiding the accident. 11. By going through the records, though the respondent got examined RW-1 and RW-2, neither the appellant-insurer, the owner nor the insurer of the maxi cab has lead any evidence in this behalf. If the driver of the maxi cab has foreseen and acted cautiously with consciousness, he could have avoided the accident. But, however, the fact remains that when the rider of the motor cycle has Men down due to the opening of the right side door of the car by its driver, then under such circumstances, if the driver of the maxi cab who was behind the motor cyclist had maintained a safe distance between the vehicles and if he was proceeding at a moderate speed, he could have definitely avoided the accident to some extent, but he has not done so and if that were to be taken into consideration, then under such circumstances the apportionment of liability which has been made to the extent of 90% on the part of the driver of the car and 10% on the part of driver of the maxi cab appears to be not justifiable. If the respondents had examined the drivers and lead the evidence to show that he, as a reasonable man, had applied the brakes or there was no other possibility to take vehicle on the either side, then under such circumstances, the entire liability would have been fixed on the driver of the car. However, there is no evidence to show that such a care has been taken while opening the door. But, however, the fact remains that if the driver of the car had taken care before opening the door, the accident would not have occurred. In the absence of any such evidence led by the parties, only on the basis of records and fact, if the liability is fixed to an extent of 80% on the driver of the car and 20% on the driver of the maxi cab, who was having a possibility to avoid the accident, as discussed above, would meet the ends of justice. 12. 12. Keeping in view the above facts and circumstances of the case, the appeal is allowed in part. The judgment and award dated 24.11.2014 passed by the 3rd Additional District Judge and 4th Additional Motor Accident Claims Tribunal, Belagavi, in MVC No. 637 of 2012, is modified to the extent of apportionment of liability as indicated above. Both, the appellant- insurer and respondent No. 4-insurer are directed to deposit the compensation awarded according to the apportionment of their liability made in this appeal within a period of six weeks from the date of receipt of a certified copy of this judgment. In view of dismissal of the appeal, I.A. No. 2 of 2015 does not survive for consideration and the same stands disposed of. 13. Registry is directed to transfer the amount in deposit to the Tribunal concerned forthwith and draw the decree accordingly.