1. This appeal arises out of a judgment and award rendered by the Motor Accident Claims Tribunal, Jamnagar, in Claim Case No.536/1999, on 17.06.2004.
2. The claimant-appellant was travelling in a chhakdo rickshaw which met with an accident with a truck on 21.06.1999. The driver of the truck fled from the place of accident and his whereabouts or other details could not be known, and therefore, driver, owner and insurer of the truck were not joined as party respondents in the claim petition. The claimant-appellant had claimed a compensation of Rs.1,00,000/- and the tribunal came to the conclusion that the drivers of both the vehicles were equally responsible for their act and held that the driver, owner and insurer of the chhakdo would be liable to pay Rs.30,400/- to the claimant as the driver, owner and insurer of the truck were not joined as party respondents.
3. The original claimant has approached this Court to challenge the said judgment and award, only on the count that the tribunal could not have held that the driver, owner and insurer of the chhakdo rickshaw bearing registration No.GJ- 10-U-9758 were liable to pay compensation of Rs.30,480/-, as the negligence is held to the extent of 50 per cent. So far as the appellant's claim case is concerned, the accident occurred because of composite negligence of drivers of both the vehicles, and therefore, the drivers, owners and insurers of both the vehicles would be jointly and severally liable to pay the compensation and the claimant can recover the same from any one of the joint tortfeasors.
4. Heard learned Advocate, Mr. Rachh, for the appellant, Mr. Mehta, learned Advocate on behalf of Mr. H.B. Parikh, learned Advocate for respondent No.1. Mr. Harshad Patel, learned Advocate for respondent No.2 is not present when the matter is heard.
5. Undisputedly, the claimant was travelling in chhakdo rickshaw and cannot be attributed any negligence for the accident. The tribunal has held that the driver of the chhakdo rickshaw as well as driver of the hit and run truck are equally responsible for the accident. Therefore, so far as the claimant is concerned, it is a case of composite negligence of drivers of chhakdo rickshaw and truck. Consequently, owners and insurers of both the vehicles shall be vicariously liable to pay the compensation. The liability of drivers, owners and insurers of both the vehicles shall be joint and several. The tribunal has held that the claimant was entitled to a compensation of Rs.60,800/-, but, then it held that the driver, owner and insurer of the chhakdo rickshaw shall be liable to pay compensation to the extent of Rs.30,400/-, whereby, in the opinion of this Court, the tribunal has committed an error. The liability of the joint tortfeasor in case of composite negligence shall be joint and several. The judgment and award is not challenged on any other ground.
6. The appeal is, therefore, ALLOWED to the extent that the liability of the driver, owner and insurer of both the vehicles is held to be joint and several and claimant as such shall be entitled to recover, from any one of them, the amount of compensation i.e. Rs.60,800/-, which he is entitled to get. Ordered accordingly. No order as to costs.
(A.L.DAVE, J.) Umesh/