JUDGMENT
Arun Mishra, J.
1. This appeal has been preferred by the claimants aggrieved by the dismissal of the claim petition as per award dated 3.2.2004 passed by the First Addl. M.A.C.T., Sidhi in Claim Case No. 51 of 2002.
2. On 14.6.2001 at about 9 p.m. the deceased Gajendra Singh was going to the village Bichhi from Sidhi on a motor cycle as pillion rider along with motorcyclist Shiv Singh. His age was 25 years. When they reached at about 9.40 p.m. near house of Ashok Singh, tractor No. MP 17-A 2399 and trolley No. MP 17-A 2400 driven by Shivraj in zigzag and rash and negligent manner came on the road. When side was sought, driver of the tractor gave side, Shiv Singh took motor cycle ahead, driver of the tractor brought the trolley back and dashed the head of pillion rider Gajendra Singh on the left side. He sustained injuries. Motor cycle was thrown away. Shiv Singh also fell down. The several persons came to the spot. Driver did not stop the tractor and ran away with the tractor. Report was immediately lodged at P.S., Bahri and the tractor was intercepted by the police within half an hour and seized. Gajendra Singh had obtained education up to class 12th and used to work as Head Mechanic at Parihar Motor Workshop. It was claimed that he earned Rs. 6,000 per month. Total compensation of Rs. 8,89,000 was claimed by the parents. After due investigation charge-sheet was filed against driver of tractor for commission of the offence under Sections 279 and 304A of Indian Penal Code.
3. It was contended by the respondents, owner and driver, that a false criminal case was registered. Charge-sheet was also filed based on false implication. Motor cycle fell down as it went in a ditch owing to which Gajendra Singh fell down along with Shiv Singh. The accident was outcome of rashness and negligence of the motorcyclist Shiv Singh. Shiv Singh was not having a valid driving licence to drive motor cycle. Shiv Singh was badly drunk and he was unable to balance the motor cycle which was the cause of the accident.
4. Learned Claims Tribunal has found that it has not been established that the accident occurred between the tractor and motor cycle, hence claim petition has been dismissed. Aggrieved thereby this appeal has been preferred by the claimants.
5. After hearing the learned Counsel for the parties and going through the evidence, we find that the finding which has been recorded by the Claims Tribunal with respect to the non-involvement of tractor in the accident in question, cannot be allowed to sustain as same is found to be perverse.
5.1. We have gone through the evidence on record. Surendra Singh, CW 1, has stated that the accident was caused due to the reason that driver of the tractor-trolley all of a sudden after giving side brought back the trolley in the passage of motor cycle. After the accident, trolley dashed the tree, motor cycle also fell down. He has withstood cross-examination. Girdhari Singh, CW 3, has also supported the statement of Shiv Singh. He has stated that Shiv Singh wanted to obtain side, side was given by driver of tractor, while he was overtaking, the accident took place. There is nothing in his cross-examination to disbelieve the statement. We further find that F.I.R. was lodged immediately. F.I.R., PI, is on record which was lodged within half an hour on 14.6.2001 in which involvement of aforesaid tractor was clearly mentioned. From other documents also it is clear that tractor was involved in the accident. Police also after due investigation has filed charge-sheet against driver. We also find from the statement of driver Shivraj, NAW 1, that police intercepted the tractor and seized it at Mayapur immediately after accident on the said date itself. It is clear that he ran away along with tractor and did not stop on the spot. Prompt lodging of the F.I.R. supports the case of claimants beside seizure of the tractor immediately by the police, also buttresses the case of the claimants. ‘Man may lie but circumstances do not’ is the cardinal principle of evaluation of evidence. Circumstances unerringly point out the involvement of the tractor-trolley in question in the accident. When we consider the statement of Rahul, NAW 2, he has stated that motor cycle fell down as it went into ditch, thereafter tractor reached the spot. The witness was unable to state whether the accident has taken place in front of house of Ashok Singh. He was unable to state whether his police statement was recorded by the police. Thus no reliance can be placed on the statement of Rahul. Govind Lai Jaiswal, NAW 3, has also stated that motor cycle fell down due to failure to negotiate a ditch owing to which Gajendra Singh fell down along with motor cycle. The case set up is prima facie unreliable. He has further stated that after half an hour tractor in question came to the spot. It is clear that he has tried to save the driver and owner. He has further denied his statement, Exh. D2, recorded in the criminal case by the police, thus he has contradicted his earlier version and has also stated that police has not recorded his statement. In view of the aforesaid no reliance can be placed on the statement of Govind Lal Jaiswal. Ashok Singh, NAW 4, has stated that he came to know about the accident after about two hours. He has not witnessed the incident. Lalji Mishra, NAW 5, is also not an eyewitness. He has also contradicted his police statement, thus reliance cannot be placed on his version. However, it is apparent in the facts and circumstances of the case that while the motorcyclist was overtaking, though side was initially given it appears that tractor was brought back after giving side, free passage to motor cycle was not available, consequently at the time when motor cycle was overtaking as safe distance was also not maintained by motorcyclist accident has taken place which appears to be case of composite negligence. It is a case of composite negligence vis-a-vis claimant as he was travelling as pillion rider. In case of composite negligence, it is permissible to sue any of the joint tortfeasors and to recover entire compensation as held by Full Bench of this Court in Sushila Bhadoriya v. Madhya Pradesh State Road Trans. Corpnoration , the question referred has been answered by Full Bench of this Court thus:
(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. The claimant may implead the owner, driver and the insurer of both the vehicles or any one of them.
(ii) There cannot be apportionment of the liability of joint tortfeasors. In case both the joint tortfeasors 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 law, there is no necessity to apportion the inter se liability of joint tortfeasors.
Thus, in our opinion compensation can be recovered by the claimants from the respondents and the joint tortfeasors can settle their inter se dispute between themselves.
6. Learned Counsel for the respondents has relied upon the decision of the Apex Court in Municipal Corporation of Greater Bombay v. Laxman Iyer , in which Apex Court has laid down that negligence is not an absolute term, but is a relative one. It is rather a comparative term. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other’s negligence. Whichever party could have avoided the consequence of other’s negligence would be liable for the accident. In the instant case, facts are clear while motor cycle was overtaking accident has taken place. Thus it is a case of composite negligence, owing to which accident appears to have taken place.
7. Coming to the question of quantum of compensation. Deceased was 25 years of age. He was a Head Mechanic. It was claimed that he earned a sum of Rs. 6,000 per month. However, no salary certificate has been produced, thus in our opinion, it would be safe to assess the income at Rs. 3,000 per month. After deducting 1/3rd amount which the deceased would have spent on himself had he been alive loss of monthly dependency comes to Rs. 2,000 and Rs. 24,000 per annum. Age of parents was 40-42 years at the time when claim petition was filed, multiplier of 15 is applicable which we apply. Thus compensation on account of loss of dependency comes to Rs. 24,000 x 15 = Rs. 3,60,000. In addition we award a sum of Rs. 10,000 on account of loss of expectancy of life, loss to estate and funeral expenses. Thus the total compensation comes to Rs. 3,70,000 (rupees three lakh seventy thousand). The compensation enhanced by us to carry interest at the rate of 6 per cent per annum.
8. Resultantly, appeal is partly allowed to the aforesaid extent. Parties to bear their own costs as incurred.
