JUDGMENT (Prayer: Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, as against the Decree and Judgment dated 15th March, 2017, passed in MCOP No.580 of 2011, by the Motor Accidents Claims Tribunal (Principal District Judge), at Cuddalore.) 1. The 2nd respondent/Insurance Company is the appellant before this Court, challenging the award passed in M.C.O.P. No.580 of 2011 on the file of the Motor Accident Claims Tribunal (Principal District Court) Cuddalore. The facts are briefly reproduced herein below necessary for appreciating the contentions raised by the appellant herein. 2. The respondents 1 to 6 herein who are the claimants before the Tribunal below are the legal representatives of late Bhoovaramoorthy's They are the wife, children and mother of the deceased. It is their case that the said Bhoovaramoorthy was working as a driver in Saudi Arabia and earning a sum of Rs.25,000/- per month. On 25.11.2010 when the deceased had come to India at about 15.00 hours, he was proceeding on the Vridhachalam to Chidambaram Main Road on a TVS Victor Motor Cycle bearing Registration No.TN-32-V-2778. When the vehicle had reached near Amdedkar Nagar, Bus Stop, a Skoda Car bearing Registration No.KA-03- ME-9286, belonging to the 7th respondent herein and insured with the appellant herein driven in a rash and negligent manner at great speed rammed the petitioner's motor cycle from behind and the driver of the motor cycle died on the spot. 3. The respondents 1 to 6 had originally filed their claim only against the owner and insurer of the Skoda car. In the original claim petition they had stated that the accident was only on account of the negligence on the part of the driver of the 7th respondent’s car herein. The 7th respondent had entered appearance through counsel and had not filed a counter he was therefore called absent and set ex parte. The appellant herein had filed a counter denying the very accident and contended that the 7th respondent’s vehicle was not involved in the said accident. However, the appellant had stated that they had not received any claim form the 7th respondent and was therefore, constrained to file the counter on the available material. Despite taking such stand in paragraph 9 of the counter, the appellant had made the following statement “On 25.11.2010 at about 15 hrs, The first Respondent car Regn. However, the appellant had stated that they had not received any claim form the 7th respondent and was therefore, constrained to file the counter on the available material. Despite taking such stand in paragraph 9 of the counter, the appellant had made the following statement “On 25.11.2010 at about 15 hrs, The first Respondent car Regn. No.KA-03-ME-9286 from east to west at a moderate speed, keeping extreme left of Virudhachalam to Chidambaram Main road, one person drove a TVS victor Regn No.TN- 32-V-2778 motor cycle and proceeds on the same direction from front side of the Car and he descent the TVS Victor motor cycle on his let side of the tar road for passes the first respondent car, after the first respondent car passes, he again to ascent the TVS Victor motor cycle on upper side of the tar road and he stumbled and slipped down with TVS Victor motor cycle due to the right side handle of the TVS Victor hit against the back corner of the left side of body of the first respondent Car and invited the accident and sustained fatal. This accident had happened due to the careless, rash and negligent act of the driver of the TVS Victor alone and not due to any rash and negligent act of the driver of the first respondent.” 4. The trial initially commenced on the basis of the above pleadings and after the evidence of RW.1, respondents 1 to 6 herein had filed an application to implead the owner of the motor cycle bearing Registration No.TN-31-BY-8447, and its insurer as respondents 3 and 4. The said petition was allowed and respondents 8 and 9 were impleaded as respondents 3 and 4 in the claim petition. Thereafter respondents 1 to 6 had filed an amendment petition to give effect to the order in the implead petition. The respondents 1 to 6 had deleted the statement that the accident had occurred only on account of the negligence of the driver of the Skoda car and substituted the same with the following sentence “The above accident also involved the Hero Honda Splendor Motor Cycle bearing Registration No. TN-31- BY-8447”. They had further submitted that along with the appellant and respondents 7, 8 and 9 were also jointly and severally liable to pay compensation to the petitioners. 5. They had further submitted that along with the appellant and respondents 7, 8 and 9 were also jointly and severally liable to pay compensation to the petitioners. 5. After the amendment, the appellant had filed a counter in which they had submitted that the 7th respondent has been falsely impleaded in the case. They had contended that on 25.11.2010, the car was stopped by the police and checked, at which point of time it was noted that there was no injury or damage to the car and the car was allowed to pass. Thereafter, Vridhachalam Police have called the owner of the Skoda car namely the 7th respondent to take the vehicle to the R.T.O. Neyveli for inspection and after the inspection it is found that the 7th respondent’s vehicle was not involved in the accident. The appellant had further pleaded that the case were being cooked up by the Special Sub Inspector of police and Inspector of Police for monetary benefits. The appellant had gone on to state that pending the case when they had made further inquiries they came to learn that the accident was on account of the collision between two motor cycles and in order to gain more money the 7th respondent's vehicle has been roped in. Therefore, they would submit that the claim is a false claim. 6. The 9th respondent herein who is the insurer of the motor cycle had filed a counter denying the involvement of the Hero Honda Splendor Motor Cycle and contended that the accident had occurred only on account of the carelessness and negligence of the 7th respondent’s car. The 9th respondent therefore prayed for a dismissal of the claim against respondents respondents 8 and 9 herein. 7. After the amendment once again the parties had gone to trial afresh. The 1st respondent once again examined herself as P.W.1 thereafter one more eye witness was examined as P.W.3. P.W.2 was examined prior to the amendment. Ex.P.1 to P.14 was marked on the side of the petitioners. The 7th respondent's Managing Trustee of Universal Education Academy in Bangalore examined himself as R.W.1 and the Junior Assistant, Motor Vehicle’s Inspector Office, Vridhachalam gave evidence as R.W.2. The appellant's official deposed as R.W.3. P.W.2 was examined prior to the amendment. Ex.P.1 to P.14 was marked on the side of the petitioners. The 7th respondent's Managing Trustee of Universal Education Academy in Bangalore examined himself as R.W.1 and the Junior Assistant, Motor Vehicle’s Inspector Office, Vridhachalam gave evidence as R.W.2. The appellant's official deposed as R.W.3. The appellant had only marked R.1 series which were the copies of the Motor vehicle’s Reports in respect of the deceased’s TVS Victor Motor Cycle, the Motor Cycle belonging to the 8th respondent and insured with the 9th respondent and the Skoda car belonging to the 7th respondent and insured with the appellant which were inspected post the accident. Ultimately, by an award dated 15.03.2007, the Tribunal below had awarded a total sum of Rs.16,00,000/- (Rupees Sixteen Lakhs Only) and the liability was fastened only on the appellant and the 7th respondent. It is challenging this award that the appellants are before this Court. 8. Mr. J.Micheal Visuvasam, learned counsel appearing on behalf of the appellant would contend that respondents 1 to 6 have not come to Court with a definite case. Initially the claim petition was filed against the 7th respondent herein and its insured the appellant herein. In column 23, respondents 1 to 6 had contented that the accident had occurred solely on account of the driver of the 7th respondent's Skoda car. He would contend that after the evidence of R.W.1, respondents 1 to 6 herein has filed the application for impleading respondents 8 and 9 herein as respondents 3 and 4 in the claim petition. It was their case that the 8th respondent/ driver of the motor cycle which is insured with the 9th respondent was also involved in the accident and therefore, they were necessary parties to the proceedings. It appears that the said application was allowed as there were no objections to the same. Thereafter, respondents 8 and 9 were impleaded as respondents 3 and 4 in the claim petition. After the newly impleaded respondents were added, the respondents 1 to 6 had filed an amended claim petition and in the amended claim petition they had contended that the motor cycle belonging to the 8th respondent herein i.e; the Hero Honda Splendor Motor Cycle bearing Registration No.TN-31-BY-8447 was also responsible for the accident. The claim petition does not elaborate as to how the motor cycle was involved. The claim petition does not elaborate as to how the motor cycle was involved. They had pleaded that the appellant and respondents 7 to 9 were therefore jointly and severally liable to pay the compensation to them. 9. The learned counsel would further submit that they had filed an additional counter in which they had clearly narrated that the Skoda was car was in no way responsible for the accident which is evident from the fact that the Motor vehicle inspector who had inspected the vehicle had opined that there was no damage to the Skoda car. This according to him would demonstrate clearly that the Skoda car had not rammed the deceased's motor cycle from behind. If really the car had hit the motor cycle from behind there would be damage to the front side of the vehicle and such a damage is non-existent. 10. He would submit that initially the counter was filed without getting any details from the insured and thereafter, when the insurance company had undertaken an independent investigation, they had come to learn that the 7th respondent's car was in no way involved in the accident. He would submit that it was only the motor cycle belonging to the 8th respondent which had caused the accident and therefore it is only respondents 8 and 9 herein who were liable to pay the compensation to respondents 1 to 6 herein. He would submit that the FIR has been lodged by the wife of the deceased who is not even an eye witness to the accident and her complaint was only based on hearsay. That apart, the FIR had been lodged a day after the accident. 11. He would also contend that respondents 1 to 6 have deliberately suppressed the involvement of the motor cycle belonging to the 8th respondent in their original claim petition. They had been forced to file the amendment on account of the evidence adduced by R.W.1. He would submit that prior to the amendment, P.W.2 who was the eye witness had given evidence that the accident was on account of the negligence on the part of the driver of the Skoda car. They had been forced to file the amendment on account of the evidence adduced by R.W.1. He would submit that prior to the amendment, P.W.2 who was the eye witness had given evidence that the accident was on account of the negligence on the part of the driver of the Skoda car. However, post the amendment P.W.3 has been examined who has in very clear and categoric terms submitted that the deceased was first hit by the motor cycle and he had fallen down and thereafter the car belonging to the 7th respondent had once again hit him as a result of which grievous injuries had caused and the deceased had finally succumbed to his injuries. He would submit that the injuries to the deceased was caused only by the motor cycle belonging to the 8th respondent and it is this that had resulted in his death. The driver of the 7th respondent's Skoda car is in no way connected or responsible for the accident. 12. Mr.J.Chandran appearing on behalf of the 9th respondent would contend that the FIR and the evidence of P.W.2 clearly proves that the accident had occurred only on account of the negligence of the driver of the Skoda car. Even in the amended claim petition it is not stated as to how the 8th respondent's vehicle was involved in the accident. Therefore, the award has been rightly pronounced by the Tribunal below. 13. Per contra, M/s. Ramya V.Rao, learned counsel appearing on behalf of the respondents 1 to 6 would submit that the appellant herein had taken a contradictory stand with reference to the manner in which the accident had occurred in their earlier counter and in the subsequent counter. She would submit that it was only after the evidence of R.W.1 that the respondents 1 to 6 had come to learn about the involvement of a motor cycle and immediately a petition to implead the owner and insurer of the motor cycle had been filed. She would submit that the respondents 1 to 6 had filed the initial FIR only on the basis of the information that they had received, as none of them were eye witness to the accident. She would submit that the respondents 1 to 6 had filed the initial FIR only on the basis of the information that they had received, as none of them were eye witness to the accident. She would submit that from the evidence of P.W.3, it is clearly seen that the injuries to the deceased has been caused both by the driver of the 7th respondent's Skoda car as well as the driver of the 8th respondent's Hero Honda Splendor motor cycle. Therefore, she would submit that it is a case of composite negligence and the appellant and respondents 7 to 9 are jointly and severally liable to compensate respondents 1 to 6. She would further submit that the appellant herein has not been able to rebut/convert the evidence of P.W.3. She would therefore, submit that the appeal has to be dismissed. She would however add that in case the Court was inclined to accept the arguments of the appellant with reference to the involvement of the motor cycle belonging to the 8th respondent then the Court should consider making the appellant and respondents 7 to 9 jointly liable. 14. Heard the learned counsels on both sides. 15. The respondents 1 to 6 have originally filed the claim petition only against the 7th respondent and the appellant herein i.e; the owner of the Skoda car and its insurer. In the claim petition they had contended that the accident had occurred on account of the Skoda car hitting the petitioner from behind. The specific case of the respondents 1 to 6 was that the driver of the Skoda car alone was responsible for the accident. Nearly 3 years after the filing of the above claim petition, the respondents 1 to 6 have amended the claim petition by impleading respondents 8 and 9 herein and deleting from the claim petition the statement, that the accident had occurred on account of the negligence on the part of the driver of the 7th respondent's Skoda car and instead substituting the same with the statement that the accident also involved the Hero Honda Splendor motor cycle belonging to the 8th respondent herein. Prior to the amendment the respondents 1 to 6 had examined P.W.2 who had gone on record to state that the Skoda car had rammed the deceased's vehicle from behind and due to this Bhoovaramoorthy died on the spot. Prior to the amendment the respondents 1 to 6 had examined P.W.2 who had gone on record to state that the Skoda car had rammed the deceased's vehicle from behind and due to this Bhoovaramoorthy died on the spot. Post the amendment, P.W.3 has been examined as the witness who would state that the first impact on the vehicle of the deceased was that of the 8th respondent's motor bike as a result of which the deceased had fallen down, immediately, the Skoda car belonging to the 7th respondent had also hit the deceased. 16. The learned counsel appearing for the appellant would submit that the car belonging to the 7th respondent was not involved in the accident particularly on account of the fact the there was no damages to the car. If the sequence of the accident as narrated by P.W.3 is taken into account, the vehicle of the 8th respondent would have 1st hit the deceased's vehicle and on its impact the deceased would have fallen down. P.W.3 has deposed that the 7th respondent's car has followed right behind and hit the deceased who had already fallen down. The 8th respondent's motor cycle has rammed the vehicle of the deceased and sustained damages. This is evident from the Motor Vehicle Inspector's report (Ex.P.2) It is thereafter that the car belonging to the 7th respondent has hit the deceased. Therefore, since the car has hit the deceased there may be no damages to the car. That apart, the car has been presented for the MV inspection only 4 days after the accident. That apart, the evidence of R.W.1, the owner of the vehicle (Skoda car) does not inspire much confidence in the Court as it appears that the witness is not speaking the whole truth. The 7th respondent in his cross examination would state that he has left his hotel near Vaitheeswaran temple at 12 noon and had proceeded to Bangalore by car and reached Vridhachalam at 5 pm. However it is seen that the travelling distance between the two places i.e; Vaitheeswaran temple and Vridhachalam is just about one and a half hours, therefore, the statement that he had reached Vridhachalam at 5 pm appears to be a self-serving statement. However it is seen that the travelling distance between the two places i.e; Vaitheeswaran temple and Vridhachalam is just about one and a half hours, therefore, the statement that he had reached Vridhachalam at 5 pm appears to be a self-serving statement. If the petitioner had reached Vridhachalam at about 5 pm and was entering into the town, the statement that there was a police check at the entrance of the town appears to be improbable. The accident had taken place at 3 pm within Vridhachalam and therefore, the police would have been checking vehicles which were travelling out of Vridhachalam and not the vehicles entering Vridhachalam. 17. The other discrepancy in the evidence is the handing over of a vakalat to an Advocate merely on account of the police calling upon R.W.1 to submit his vehicle for inspection. Therefore, this Court has to rely upon the uncontroverted evidence of P.W.3, the eye witness. The appellant and the 7th respondent have not been able to rebut the evidence of P.W.3 that the accident had occurred only on account of the negligence of the motor cycle belonging to the 8th respondent ramming against the vehicle of the deceased on account of which the deceased had fallen down and thereafter he was hit by the 7th respondent car. However there is no evidence as to whether the deceased had died immediately upon his falling down from the bike after being hit by the vehicle of the 8th respondent or whether he had died on account of the impact of the car belonging to the 7th respondent. The accident therefore appears to be a result of a composite negligence of the motor cycle belonging to the 8th respondent as also the car belonging to the 7th respondent and insured with the 9th respondent and appellant respectively. 18. The Hon'ble Supreme Court in a Judgment reported in (2015) 9 SCC 273 - Khenyei Vs. New India Assurance Company Limited and Others had occasion to consider the issue as to whether it is open to a claimant to recover the entire compensation from one of the joint tortfeasors particularly when the accident had been the result of the composite negligence of the drivers of the trailer-truck and the bus. While dealing with the said issue the Hon'ble Bench had considered the various judgments regarding composite negligence. While dealing with the said issue the Hon'ble Bench had considered the various judgments regarding composite negligence. the Hon'ble Bench had relied upon the judgment of the Hon'ble Full Bench of the Karnataka High Court reported in Karnataka SRTC Vs. Arun - 2003 SCC Online Kar 715 : AIR 2004 Kar 149 , the Hon'ble Bench had extracted the following portions of the decision of the Full Bench of the Karnataka High Court:- “25. When injury is caused as a result of negligence of two joint tort-feasors, claimant is not required to lay his finger on the exact person regarding his proportion of liability. In the absence of any evidence enabling the Court to distinguish the act of each joint tort-feasor, liability can be fastened on both the tort-feasors jointly and in case only one of the joint tort-feasors is impleaded as party, then entire liability can be fastened upon one of the joint tort-feasors. If both the joint tort-feasors are before the Court and there is sufficient evidence regarding the act of each tort-feasors and it is possible for the Court to apportion the claim considering the exact nature of negligence by both the joint tort-feasors, it may apportion the claim. However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tort-feasors. In such cases, joint tort-feasors will be jointly and severally liable to pay the compensation. 26. On the same principle, in the case of joint tort- feasors where the liability is joint and several, it is the choice of the claimant to claim damages from the owner and driver and insurer of both the vehicles or any one of them. If claim is made against one of them, entire amount of compensation on account of injury or death can be imposed against the owner, driver and insurer of that vehicle as their liability is joint and several and the claimant can recover the amount from any one of them. There can not be apportionment of claim of each tort- feasors in the absence of proper and cogent evidence on record and it is not necessary to apportion the claim. 27.To sum up, we hold as under:- (i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles. 27.To sum up, we hold as under:- (i) Owner, driver and insurer of one of the vehicles can be sued and it is not necessary to sue owner, driver and insurer of both the vehicles. Claimant may implead the owner, driver and insurer of both the vehicles or anyone of them. (ii) There can not be apportionment of the liability of joint tort-feasors. In case both the joint tort-feasors are impleaded as party and if there is sufficient material on record, then the question of apportionment can be considered by the Claims Tribunal. However, on general principles of Jaw, there is no necessity to apportion the inter se liability of joint tort-feasors. 28. Reference is answered accordingly. Appeal be placed before appropriate Bench for hearing.” 19. The learned judges thereafter discussed the judgment of the Hon'ble Supreme Court reported in 2008 (3) SCC 748 - T.O.Anthony Vs. Karvarnan and others where the learned Judges had discussed the difference between a composite negligence and a contributory negligence as follows:- “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. 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." 20. Ultimately, the Hon'ble Bench had held as follows:- "22. 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." 20. Ultimately, the Hon'ble Bench had held as follows:- "22. What emerges from the aforesaid discussion is as follows: 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. 22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award." 21. The Hon'ble Bench has opined that the Courts/Tribunals could determine the inter se extent of the composite negligence of drivers so as to enable one to recover the sum from the others. 22. Therefore coming to the case on hand, from the evidence of P.W.3, it is clear that the first impact which resulted in the deceased falling down was that of the vehicle belonging to the 8th respondent herein, thereafter, the 7th respondent's car had hit the deceased. 22. Therefore coming to the case on hand, from the evidence of P.W.3, it is clear that the first impact which resulted in the deceased falling down was that of the vehicle belonging to the 8th respondent herein, thereafter, the 7th respondent's car had hit the deceased. There is no clarity as to who had caused the death. However taking into account the fact that vehicle which first dashed the deceased's vehicle and caused his fall and injuries, 60% of the negligence has to be laid against the 8th respondent and 40% negligence held on the 7th respondent as the driver, as per P.W.3 evidence, hit the deceased and their respective insurance companies. There was no serious contest with reference to the quantum of compensation on either side. 23. In the result, the Civil Miscellaneous Appeal is partly allowed by holding the drivers of the 7th and 8th respondent's vehicles jointly responsible for the accident and the death of the said Bhoovaramoorthy as this is a case of composite negligence. The 8th respondent shall be liable to an extent of 60% and the 7th respondent herein is liable to an extent of 40%. The respective insurance companies of the vehicles shall deposit their shares within a period of eight weeks from the date of receipt of a copy of the Judgment. On such deposit the claimants/petitioners are permitted to withdraw the said amount. The share of the minors shall be deposited in any one of the Nationalized Bank in fixed deposit under the reinvestment scheme initially for a period of three years. The interest accruing on the share of the minors shall be paid to the 1st respondent/ mother of the minors, once in three months, till they attain majority. No costs. Consequently, the connected Civil Miscellaneous Petition is closed, if any.