JUDGMENT : 1. Heard learned advocate Mr.M.T.M. Hakim for learned advocate Mr.Mohsin M. Hakim for the appellant and learned advocate Mr.Rajesh Chauhan for learned advocate Mr.H.S.Munshaw for the defendant No.2. 2. The appellant is the original claimant who preferred Motor Accidents Claim Petition No.878 of 2007 under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.3,00,000/- for the injuries sustained by him in the accident which had occurred on 12th June, 2007 at Kapuari Chowkdi within the jurisdiction of Panigate Police Station of Vadodara City. 3. The facts stated in the claim petition are as under : 3.1. It is the case of the claimant that on 12.06.2007, the claimant was travelling from Idar to Bodeli in S.T.Bus bearing registration No.GJ-18-V-9592 which was being driven by the opponent no.1 in a rash and negligent manner and at a very high speed and when the bus driver i.e. opponent no.1 tried to cross the road without paying attention to other vehicles on road dashed the bus with one Tanker and caused the accident. As a result of this accident, the claimant sustained grievous bodily injuries. Thus, it is averred that the present accident had occurred, because of rash and negligent driving on the part of opponent no.1-bus driver. 3.2. So far as the compensation is concerned, it is averred by the claimant that, as a result of this accident he had sustained fracture in right leg and injury over left eyebrow. It is further stated that, at the time of accident he was doing masonry work and he was earning Rs.3,000/- per month. But due to fracture of right leg, the claimant has difficulty in walking and bending his right leg. He was unable to do masonry work because of which he had to suffer the loss of income. Moreover, on account of injuries, he underwent great pain, shock and suffering. He had to incur the expenses towards the medicines, transportation, attendant, special diet etc. Thus, the claimant has claimed Rs.3,00,000/- by way of compensation under all heads in the claim petition. 3.3. Moreover, on account of injuries, he underwent great pain, shock and suffering. He had to incur the expenses towards the medicines, transportation, attendant, special diet etc. Thus, the claimant has claimed Rs.3,00,000/- by way of compensation under all heads in the claim petition. 3.3. The Motor Accident Claims Tribunal, Vadodara (for short ‘the Tribunal’) passed the judgment and award dated 5th October, 2016 awarding Rs.66,668/- being 40% of Rs.1,67,200/- to claimant by way of compensation from the opponents jointly and severally together with interest at the rate of 9% per annum from the date of petition till payment with proportionate cost of the petition. 3.4. The Tribunal while determining the liability held that the respondent No.2-Gujarat State Road Transport Corporation and the driver of the bus are jointly and severally liable to the extent of 40% for causing the accident as determined by the Tribunal attributable to the S.T. Bus and the remaining 60% of negligence attributable to the other vehicle being unknown Tractor Trolley. 3.5. The Tribunal in paragraph No.8.5 of the judgment for determining the composite negligence of the S.T.Bus and the Tractor Trolley held as under : “8.5] A perusal of the evidence produced on record, it is clear that, at the time of accident the offending bus was going towards Chhotaudepur from Vadodara and when the bus was about to cross the Kapurai chowkdi, at that time, one unknown Trailer came from Ahmedabad side and dashed against the back side of the conductor side of the bus and the said fact is also supported by the panchnama Exh.20. It is not in dispute that, at the relevant time, the opponent no.1 bus driver was to cross the road to go Dabhoi road and the passengers were travelling in the bus. Admittedly, the present accident had taken place in the midnight on the four crossed road. So, when the driver of ST bus was carrying the numbers of passenger, he must have taken due and proper care and circumspect while crossing the road. The safety of the passengers is the prime duty of the bus driver. In the given case, the accident had taken place while the bus driver was trying to cross the road. At the point of relevant time, if the driver of ST bus i.e. opponent no.1 had remained careful the accident would not have been taken place. The safety of the passengers is the prime duty of the bus driver. In the given case, the accident had taken place while the bus driver was trying to cross the road. At the point of relevant time, if the driver of ST bus i.e. opponent no.1 had remained careful the accident would not have been taken place. Likewise, had the driver of unknown vehicle driven his vehicle at slow speed with due care, the accident would not have been taken place. So, I am of the opinion that the driver of both the vehicles had contributed to the cause of accident and both were responsible for the accident. However, keeping all the aspects in mind and way and manner of happening of accident, the contribution of the driver of the ST bus i.e. opponent no.1 towards the cause of accident can be assessed at 40% and that of the driver of the other unknown vehicle can be assessed at 60% and therefore, I hold that the drivers of both the bus and unknown vehicle were responsible for the accident. Hence, I answer Issue No.1 accordingly.” 3.6. The Tribunal thereafter in paragraph No.16 determined the liability as under : “Liability : 16] As decided above, the opponent no.1 bus driver held negligent to the extent of 40% for the occurrence of this accident. Admittedly the ST bus bearing registration No.GJ-18-V-9592 involved in the accident was being driven by the opponent no.1 and it was belonging to the opponent no.2- Gujarat State Road Transport Corporation. Therefore, the opponent no.1 & 2 being driver & owner of the offending bus both are jointly & severally liable to pay 40% amount of compensation i.e. Rs 66,668/- to the claimant.” 4.1. Learned advocate Mr.Hakim for the appellant submitted that the Tribunal could not have restricted the award to 40% of the compensation i.e. Rs.66,668/- to the claimant. The Tribunal, once having determined composite negligence, ought to have awarded the entire amount to the claimant without restricting the liability to one of the fort feasors and the appellant-claimant ought to have been paid the entire amount by the respondent-S.T.Corporation and the Driver of the bus jointly and severally irrespective of the determination of the composite negligence to the extent of 40% in the accident which had occurred by which the claimant suffered the injury. 4.2. 4.2. In support of his submission, reliance is placed on decision in case of Khenyei Versus New India Assurance Company Limited reported in (2015) 9 SSC 273 to submit that the Tribunal once having determined the composite negligence, it could not have restricted the liability of one of the joint tortfeasors from whom the compensation can be recovered by the claimant. 4.3. It was submitted by learned advocate Mr.Hakim that the claimant is entitled to implead only one joint tortfeasor for the purpose of claim under Section 166 of the Act and there is no obligatory or mandatory requirement on part of the claimant to join both the tortfeasors from whom the compensation may be recovered. It was submitted that when the claimant has chosen to join only the GSRTC which is the one of the joint tortfeasors and the owner of the unknown tractor trolley was not impleaded, the apportionment of the composite negligence cannot be made by the Tribunal in absence of the impleadment of the joint tort feasors and it would be open for the GSRTC to claim the amount of the balance joint composite negligence attributed by the Tribunal from the other joint tortfeasors by filing a Suit for recovery from the other tortfeasor, the contribution to the extent of his fixed negligence. 5. Learned advocate Mr.Rajesh Chauhan for learned advocate Mr.H.S.Munshaw for the defendant No.2 submitted that it is the obligation on part of the claimant to join all the joint tortfeasors and in absence of impleadment of the joint tortfeasors by the claimant, the Tribunal has not committed any error in restricting the award to 40% of the composite negligence attributable to the respondent No.2-GSRTC. It was submitted that the Tribunal has not committed any error in awarding 40% amount of compensation payable by the GSRTC and restricting liability to that extent. 6. Having heard the learned advocates for the respective parties and having considered the material on record, it appears that the Tribunal has committed manifest error in restricting the liability of the joint tortfeasors i.e. GSRTC up to 40% on the basis that the GSRTC was liable for a composite negligence up to 40% only. 7. This issue is no more res integra. The Apex Court in case of Khenyei (Supra) in this context, held as under : “15. There is a difference between contributory and composite negligence. 7. This issue is no more res integra. The Apex Court in case of Khenyei (Supra) in this context, held as under : “15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [ 2008 (3) SCC 748 ] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder : “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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. 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 wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong- doer 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 of 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 of 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. 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.” 16. In Pawan Kumar & Anr. v. Harkishan Dass Mohan Lal & Ors. [ 2014 (3) SCC 590 ], the decisions in T.O. Anthony (supra) and Hemlatha (supra) have been affirmed, and this Court has laid down that where plaintiff/claimant himself is found to be negligent jointly and severally, liability cannot arise and the plaintiff’s claim to the extent of his own negligence, as may be quantified, will have to be severed. He is entitled to damages not attributable to his own negligence. The law/distinction with respect to contributory as well as composite negligence has been considered by this Court in Machindranath Kernath Kasar v. D.S. Mylarappa & Ors. [ 2008 (13) SCC 198 ] and also as to joint tortfeasors. This Court has referred to Charlesworth & Percy on negligence as to cause of action in regard to joint tortfeasors thus: “42. Joint tortfeasors, as per 10th Edn. [ 2008 (13) SCC 198 ] and also as to joint tortfeasors. This Court has referred to Charlesworth & Percy on negligence as to cause of action in regard to joint tortfeasors thus: “42. Joint tortfeasors, as per 10th Edn. of Charlesworth & Percy on Negligence, have been described as under : “Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them is the same, namely, that the same evidence would support an action against them, individually….. Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them.” 17. The question also arises as to the remedies available to one of the joint tortfeasors from whom compensation has been recovered. When the other joint tortfeasor has not been impleaded, obviously question of negligence of nonimpleaded driver could not be decided apportionment of composite negligence cannot be made in the absence of impleadment of joint tortfeasor. Thus, it would be open to the impleaded joint tortfeasors after making payment of compensation, so as to sue the other joint tortfeasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tortfeasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tortfeasor can recover the amount so determined from the other joint tortfeasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them. 18. This Court in National Insurance Co. Ltd. v. Challa Upendra Rao with respect to mode of recovery has laid down thus : “13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executive Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executive Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.” 19. In Oriental Insurance Co. Ltd. v. Nanjappan & Ors. also this Court has laid down thus : “8. Therefore, while setting aside the judgment of the High court we direct in terms of what has been stated in Baljit Kaur's case [ 2004 (2) SCC 1 ] that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. The for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. The for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs.” 20. This Court in Challa Bharathamma & Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. 21. The same analogy can be applied to the instant cases as the liability of the joint tortfeasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle – trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailortruck the amount to the aforesaid extent in the execution proceedings. Thus, the vehicle – trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailortruck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tortfeasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.” 8. Applying the above conspectus of law examined by the Apex Court in the present case, it would squarely be applicable to the facts of the case. The liability of the respondents-original defendants is accordingly extended to 100% with a rider that the respondents may recover the same from the other joint tortfeasure as held by the Apex Court in the aforesaid judgment. 9. The Division Bench of this Court in case of Kusumben Vipinchandra Shah and Another Versus Arvindhai Narmadashankar Raval and Others reported in 2007 (1) G.L.H. 601 held that when there is a case of composite negligence and not a case of contributory negligence, as the deceased was not driving the vehicle but deceased was a mere passenger in the Jeep insured by the insurance company, then those who are sued cannot insist on having the others being joined as defendants because the liability of the joint tortfeasors is joint and several. The relevant paragraph of the said judgment reads as under : “6. After examining all the previous decisions of this Court and also the leading books on the subject, including Pollock, the Division Bench held that where a person is injured without his own negligence but on account of the negligence of the two drivers of the colliding vehicles, it is a case of composite negligence and the plaintiff is not bound to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rule as to remoteness of damage, he is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty or contribution or indemnity as between those persons, though in any case he cannot recover in the whole more than his whole damages. He has a right to recover the full amount of damage from any of the joint tortfeasors. Those who are sued cannot insist on having the others being joined as defendants because the liability of the joint tortfeasors is joint and several. Every wrong doer is liable for the whole damage and it does not matter whether they acted between themselves as equals. This Court further held that the defendant who is compelled to pay the entire amount of damages decreed has a right to contribution from the other wrong doer. The liability in the case of composite negligence, normally should not be apportioned, as both wrong doers are jointly and severally liable for the whole loss. Rule of apportionment of liability applies in a case of contributory negligence, i.e. where the injured himself is also guilty of negligence.” 10. In view of the above, the contention raised on behalf of the respondent is not tenable and accordingly, the same is rejected. The findings of the Tribunal in paragraph No.16 shall stand modified and the original defendants are liable to pay the entire compensation of Rs.1,67,200/- to the claimant. The final order is also modified to the above extent. 11. The Appeal is accordingly allowed. No order as to cost. 12. Record and Proceedings to be sent back to the concerned Tribunal.