JUDGMENT : The 4 th respondent [the United India Insurance Co. Ltd.], in M.V.O.P.No.178 of 2008 on the file of learned IX Additional District Judge-cum-Chairman, Motor Accidents Claims Tribunal (FTC), Chittoor (for short “MACT”) filed the present appeal invoking Section 173 of the Motor Vehicles Act, 1988 (for short “the M.V. Act”), questioning the propriety and sustainability of the decree and order dated 28.12.2011 therein passed therein by the learned MACT. 2. Respondent Nos.1 to 6 herein were the claimants before the learned MACT and respondent Nos.7 to 9 were respondents 1 to 3. 3. For the sake of convenience, the parties will be hereinafter referred with reference to their status before the learned MACT i.e., is as and how they are arrayed in the impugned order. 4. Claimant No.1 is the wife, claimant Nos.2 to 6 are the children of one M.Venkatesu Gowdu (hereinafter referred to as “deceased”). 1 st respondent L.Thomas, is the registered owner of tractor bearing No.AP 03 D-3079 (hereinafter referred to as “offending vehicle No.1”) and the 2 nd respondent Roshan Zameer is its purchaser by the date of accident and also the owner-cum-driver. 3 rd respondent is the owner of the auto bearing No.CAS 3017 (hereinafter referred to as “offending vehicle No.2”). 4 th respondent is the insurer of the said vehicle. Case of the claimants: 5.[i] The deceased was travelling in offending vehicle No.2 on 07.08.2003 along with some other villagers from Baireddipalle village to go to their village Ramanapalle. When they were near Ramarachabanda place near Ganginayanipalle Village, Baireddipalle Mandal, within the limits of Baireddipalle Police Station, Chittoor District, both the offending vehicles driven by respective drivers, dashed against each other in a rash and negligent manner, whereby the auto in which the deceased was travelling, turned into 90 degree angle to its right side, then the deceased who was sitting on the left side, was thrown between the two wheels and sustained head injury apart from the injuries on the ribs, legs etc., the deceased was shifted to Dr.Balaram Nursing Home for first aid, from there to CMC Hospital, Vellore, but on the way to hospital, he succumbed to injuries. A case in Crime No.33 of 2003 was registered for the offences punishable under Sections 304A and 337 of the Indian Penal Code, 1860 (for short “I.P.C.”) against the driver of the tractor (offending vehicle No.1). A case in Crime No.33 of 2003 was registered for the offences punishable under Sections 304A and 337 of the Indian Penal Code, 1860 (for short “I.P.C.”) against the driver of the tractor (offending vehicle No.1). It is the specific case of the claimants that the accident occurred due to the rash and negligent driving of the drivers of both the vehicles. Hence, all the respondents are liable to pay compensation. [ii] The deceased was aged about 59 years, hale and healthy, agriculturist, earning Rs.75,000/- per annum and contributing the same to the family. He was also doing the business of selling sheeps and cows in and around the villages earning Rs.5,000/- per month additionally. Hence, the claimants are entitled for a compensation of Rs.5,00,000/- being the dependants and legal heirs. 6. Owners of both offending vehicles remained ex parte. The 4 th respondent-Insurance Company (appellant herein) with whom the offending vehicle No.2 was insured, alone contested the case. 7. [i] The case of the appellant (4 th respondent) in brief is that the petitioner shall prove the pleaded accident, death of the deceased due to accident, dependency and entitlement of the claimants for compensation, negligence of driver of offending vehicle No.2 in occurrence of the accident, age, occupation and income of deceased, valid and effective insurance policy for offending vehicle No.2 issued by the 4 th respondent, valid and effective driving licence for the driver of offending vehicle No.2, compliance of conditions of police by the 3 rd respondent-owner of offending vehicle No.2 etc., with clear and strict proof. [ii] Further, it is also claimed by the 4 th respondent (claimant) that the case is registered by police against the driver of the offending vehicle No.2 and the cause for the accident is the negligence of the driver of the offending vehicle No.1 and that there was no negligence on the part of driver of offending vehicle No.2. Therefore, no liability can be fastened on the 4 th respondent (appellant) Insurance Company. 8. Reference to both vehicles involved in the accident viz., the tractor and auto as offending vehicle No.1 and offending vehicle No.2 herein is made for the sake of convenience and clarity as to facts and to appreciate the contentions made by the parties. 9. On the strength of pleadings, the learned MACT settled the following issues for trial: 1. 8. Reference to both vehicles involved in the accident viz., the tractor and auto as offending vehicle No.1 and offending vehicle No.2 herein is made for the sake of convenience and clarity as to facts and to appreciate the contentions made by the parties. 9. On the strength of pleadings, the learned MACT settled the following issues for trial: 1. Whether the accident was caused due to the rash and negligent driving of the driver of the Tractor bearing No.AP 03 D 3079 or the Auto bearing No.CAS 3017? 2. Whether the petitioners are entitled for any compensation? If so to what amount and from whom? 10. Evidence before learned MACT: Sl. No. Description Remarks Oral evidence P.W.1: M.Mohan Gowdu Claimant No.2 P.W.2: J.M.Krishnaiah Chetty Eyewitness to the accident Documentary evidence Ex.A1: Certified copy of the FIR. Ex.A2: Certified copy of the Charge sheet. Ex.A3: Certified copy of the Accident Information Register. Ex.A4: Certified copy of M.V.I. Report. Ex.A5: Certified copy of P.M. Report. Ex.A6: Certified copy of rough sketch. Ex.A7: Certified copy of inquest report. On behalf of petitioner Ex.B1: Copy of the Insurance Policy On behalf of respondents. Findings of learned MACT: 11. Learned MACT while addressing the rival contentions and issues, as to whether the accident occurred due to exclusive negligence on the part of the driver of the tractor (offending vehicle No.1) or with the contribution of negligence by the driver of the auto (offending vehicle No.2), by referring to crime record and registration of case against the driver of the offending vehicle No.1 viz., Roshan Zameer, respondent No.2, observed that mere registration of case and filing of charge sheet cannot be the exclusive basis to conclude that the accident has occurred due to exclusive negligence of the driver of offending vehicle No.1. The standard of proof like beyond the reasonable doubt applicable in criminal cases cannot be extended to the cases before the learned MACT and probability is sufficient. Further observed that, the contesting 4 th respondent viz., the Insurance Company did not lead any evidence nor did take any steps to summon the drivers of either tractor or auto viz., offending vehicles 1 and 2 to place any convincing material to disbelieve the contribution of negligence by the driver of the auto. Further observed that, the contesting 4 th respondent viz., the Insurance Company did not lead any evidence nor did take any steps to summon the drivers of either tractor or auto viz., offending vehicles 1 and 2 to place any convincing material to disbelieve the contribution of negligence by the driver of the auto. Further, the learned MACT found that as against the evidence of P.W.2, who is said to be an eye-witness, there is no rebuttal evidence to discord his testimony. Hence, in the light of the evidence of P.W.2, absence efforts by the Insurance Company; occurrence of accident due to contributory negligence of drivers of both vehicles pleaded by the claimants is fit to be accepted. Accordingly, the compensation payable is apportioned between the persons responsible in respect of two vehicles by learned MACT. 12. There is no appeal by claimants questioning the apportionment and the quantification of compensation. There is no appeal by the respondents 1 and 2, who are concerned with the offending vehicle No.1 viz., tractor. Owner of the auto i.e. 3 rd respondent remained ex parte all through. Since R1 to R3 before the learned MACT, remained ex parte therein and as no additional burden would be thrown on them, in the event of either allowing or dismissing the appeal, this Court finds that their presence is not necessary and the language under Order XLI, Rule 14 of CPC as to dispensing presence of parties in appeal, who remained ex parte before the trial Court, is applicable to the context. Hence, it is found that there is no need of notice to them. It is relevant to note the Order XLI, Rule 14, in sub-rule (1) of CPC (A.P. State Amendment) proviso, namely:- “Provided that the Appellate Court may dispense with service of notice on respondents, who have remained absent, against whom the suit has proceeded ex parte in the Court from whose decree the appeal is preferred or who have been declared absent by the said Court.” Proper appearance of parties before this Court: 13. [i] In the context of the case before this Court, specific notice to respondents 1 to 3 is not necessary as they remained ex parte. However, in respect of respondents 1 to 8 in this appeal, notices served. [i] In the context of the case before this Court, specific notice to respondents 1 to 3 is not necessary as they remained ex parte. However, in respect of respondents 1 to 8 in this appeal, notices served. Against R9-S.A.Nazeer, owner of the auto, appeal was dismissed for default and it is also observed in the case proceedings that R-9 is not necessary party since the Insurance Company is contesting the matter. It is also relevant to note that R-9 herein remained ex parte before the learned MACT. [ii] In this appeal, for respondents 1 to 6, although notices are served, they did not choose to appear. Hence, this Court is constrained to proceed ex parte after giving sufficient opportunity. Respondents 7 and 8 herein are persons concerned with the tractor and respondent No.9 herein is the owner of the auto-offending vehicle No.2. The claim in respect of claimants 2 to 6 viz., respondents 2 to 6 herein, was dismissed by the learned MACT and petition was allowed in respect of claimant No.1 (R1) alone. Therefore, there is sufficient representation of parties and proper notice to the parties in this appeal. Arguments in Appeal: 14. The crime was registered against the driver of the offending vehicle No.1 and he was charge sheeted. The evidence of P.W.1 and P.W.2 is interested one. Therefore, the same cannot be the basis. The observations and findings as to contributory negligence by the driver of auto are not tenable and it can be presumed that as there was no insurance for the offending vehicle No.1, the case is twisted implicating the auto without any basis and the learned MACT erred in believing the contributory negligence on the part of the driver of the auto and the apportioning the liability on the owner and Insurance Company of the auto-offending vehicle No.2. 15. Since there is no appeal by the claimants and by the persons concerned with offending vehicle No.1, the apportionment of liability between offending vehicle Nos.1 and 2, need not be considered as in dispute from their end. However, the (appellant) Insurance Company of offending vehicle No.2- auto is disputing such apportionment. Since the claimants are not before this Court either by appeal or cross-appeal or atleast by way of participation, contending that the compensation awarded to them as low, the quantum aspect also can be considered as out of dispute. However, the (appellant) Insurance Company of offending vehicle No.2- auto is disputing such apportionment. Since the claimants are not before this Court either by appeal or cross-appeal or atleast by way of participation, contending that the compensation awarded to them as low, the quantum aspect also can be considered as out of dispute. The legal position that even in the absence of appeal and cross-objections, the respondents-claimants can seek enhancement of compensation applies only when the claimants are before the Court and makes such claim or contest. Therefore, now the quantum aspect also is out of dispute. Now, the only point requires determination is, who is negligent among the drivers of offending vehicle Nos.1 and 2. 16. Therefore, the points for determination are: 1. Whether the pleaded accident dated 07.08.2003, was occurred owing to the negligent driving of the drivers of both offending vehicle No.1 and offending vehicle No.2 and the apportionment of liability at 50% each made by the learned MACT between the drivers of both vehicles is justified and sustainable in the facts and circumstances of the case? 2. What is the result of the appeal? Point No.1: Analysis of evidence: 17. P.W.1-M.Mohan Gowdu, is the son of the deceased. He is the second claimant. His evidence is that the 2 nd respondent before the MACT is the driver of offending vehicle No.1 (tractor) and the 3 rd respondent is the driver of offending vehicle No.2 (auto). They were proceeding in opposite direction. Neither of them moved aside to avoid the accident. Consequently, both the vehicles dashed against each other. During cross-examination, it is elicited that he is not an eye-witness to the accident and as per the investigation of the police, the driver of the tractor-offending vehicle No.1 is responsible for the accident and that he do not know whether the case is registered against the driver of the auto. He has denied the suggestion that there was no negligence on the part of the driver of the auto-offending vehicle No.2. 18. P.W.2 is one J.M.Krishnaiah Chetty, his name is referred by P.W.1 as an informant under FIR. It is relevant to note that under Ex.A1-FIR, Krishnaiah Chetty is shown as informant. He has denied the suggestion that there was no negligence on the part of the driver of the auto-offending vehicle No.2. 18. P.W.2 is one J.M.Krishnaiah Chetty, his name is referred by P.W.1 as an informant under FIR. It is relevant to note that under Ex.A1-FIR, Krishnaiah Chetty is shown as informant. The contents of the complaint annexed to Ex.A1 would show that P.W.2 was travelling along with the deceased in the auto at about 2.30 in the afternoon and that the tractor-offending vehicle No.1 came at high speed and dashed the auto-offending vehicle No.2. But his evidence in chief examination is that both vehicles were on the center of the road and neither of the drivers moved aside to avoid the accident. Consequently, both the vehicles dashed against each other and he has specifically stated that the accident is occurred due to rash and negligent driving of drivers of both the vehicles viz., the tractor and auto. During cross-examination, he has denied the suggestion that the negligence of the driver of offending vehicle No.1 viz., the tractor alone is the cause. He has also denied the suggestion that there was no negligence on the part of the driver of auto – offending vehicle No.2. P.W.2 is the direct eye-witness to the accident and he has travelled in the auto along with the deceased. Except the suggestion that he is interested in helping the claimants, no other material is placed to discard the evidence of P.W.2. 19. Whether the case on hand would fall under even composite negligence as both drivers are negligent as victim is third party, is a question? Where a claim is made by one of the party to the negligence, then it would be a case of contributory negligence. Distinction between composite and contributory negligence is explained by the Hon’ble Supreme Court in a case of Andhra Pradesh State Road Transport Corporation and another v. K. Hemlatha and others , [ (2008) 6 SCC 767 ] , wherein the Hon’ble Supreme Court has observed at para No.10 as under: “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 wrong-doers. '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 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.” 20. In case of composite negligence, the claimants are entitled to proceed against one or all of them and they had their choice and each one of the persons responsible for composite negligence, are liable to answer entire claim. However, in the present case, the restriction of the liability and apportionment made by the learned MACT is not in dispute from the end of the claimants by way of any appeal or by at least participation etc.. So it can be taken that claimants have no grievance against apportionment of negligence and compensation. In fact, it is their case that both the drivers are negligent. 21. The evidence placed by the claimant viz., the oral evidence of P.W.2- eyewitness to the accident and recitals in Ex.A1-FIR that both the vehicles coming in opposite direction, and they were negligent, would sufficiently discharge the prima facie burden on the part of claimants and then the onus shifts to the Insurance Company. 21. The evidence placed by the claimant viz., the oral evidence of P.W.2- eyewitness to the accident and recitals in Ex.A1-FIR that both the vehicles coming in opposite direction, and they were negligent, would sufficiently discharge the prima facie burden on the part of claimants and then the onus shifts to the Insurance Company. Logically, legally and academically speaking, the Insurance Company could have summoned its driver or at least the owner or the Investigating Officer or any other person shown as eye-witness in the charge sheet, to probablise its contention, that there is absence of negligence on the part of the driver of the offending vehicle No.2/auto and that there is complete negligence on the part of the driver of the (tractor)/offending vehicle No.1. No such efforts were put in. The standard of burden of proof in MACT cases can be equivalent to that of probability. As rightly observed by the learned MACT, the very factum of vehicles coming in opposite direction and the time being 2.30 p.m. in the afternoon and absence of any other evidence, contradicting the evidence of P.W.2, it can be concluded that the contribution of negligence by both drivers is fit to be accepted and apportioned equally between both vehicles. 22. In the light of the discussion made above and reasons stated, the point is answered against the appellant and in favour of the claimants concluding that the pleaded accident dated 07.08.2003 is the result of negligence of drivers of both the offending vehicles and findings of the learned MACT in that regard are fit to be accepted. Accordingly, confirmed and concurred. The point is answered accordingly. Point No.2: 23. In the result, the appeal is dismissed. As a sequel, miscellaneous petitions, if any, pending in this appeal shall stand closed.