JUDGMENT
Manak Mohta, J.
1. The instant appeal has been preferred by the claimant-appellants against the judgment and award dated 14.3.1996 passed by Judge, Motor Accident Claims Tribunal, Dungarpur in Claim Case No. 108/91 whereby the learned Tribunal has awarded a sum of Rs. 1,04,750/- as compensation in favour of appellant-claimants and against respondents No. 1 to 3.
2. Briefly stated the facts of the case are that the claimant- Smt. Nani filed two claim petitions before the Motor Accident Claims Tribunal, Dungarpur, being Claim No. 107/91 for the injuries sustained by herself and claimed a sum of Rs. 1,99,000/- . She also filed another claim case on behalf of herself and on behalf of her five minor children, being Claim Case No. 108/91 claiming compensation of Rs. 4,65,000/- on account of untimely death of her husband-Lakshi in accident occurred between Truck No. GJ-09T/4276 and Truck No. HNH 5975 at Bichhiwara-Ratanpur Road, Dungarpur.
3. As per the facts stated in claim petition, on 22.4.1991, Mst. Nani with her husband-Lakshi and some other persons were travelling in Truck No. GJ-09T-4276. The sad truck was being driven by Somalal at a high speed. At about 1:30 p.m. when they reached near Village Goaga Mod on Bichhiwara-Ratanpur road their truck collided with truck bearing No. HNH-5975, which was coming from opposite side, at a high speed and was driven by its driver rashly and negligently. As a result of which, Mst. Nani herself sustained several injuries whereas her husband-Lakshi died in the said accident. An F.I.R. was lodged with regard to the accident at police station, Bichhi-wara. The claim petition was filed against the respondents-driver Soma Lal, owner-Arafat and Insurance Company of truck No. GJ-09T-4276. It was stated in the claim petition that the deceased was 45 years old. He was in service as peon in the Gram Panchayat and was earning Rs. 1500/- per month plus Rs. 500/- per month from agriculture work at the time of accident. The claimants were dependent on him. Due to accidental death, they suffered loss of income as well as loss of love and affection. Thus, under the different heads, the compensation of Rs. 4,65,000/- was claimed.
4. A joint reply was submitted by the respondents wherein the factum of accident was admitted. It was further stated in the reply that accident occurred due to high speed and rash and negligent driving by the driver of Truck No. HNH-5975. Thus, they cannot be made responsible. It was also denied that the deceased was earning Rs. 2000/- per month and stated that exorbitant amount of compensation has been claimed. It was alleged that the claimants have not impleaded the owner, Insurance Company and driver of Truck No. HNH 5975 as parties to the claim petition as they were necessary parties. It was prayed that the claim petition may be rejected.
5. On the basis of the pleadings of parties, following four issues were framed by the learned Tribunal:
1- vk;k iz’uxr okgu la[;k th-ts-09@ Vh&4276 ,p-,u-,p- 5975 ds pkydks foi{kh la[;k 1 o vU; ds }kjk fnukad 22-4-91 nksigj Ms<+ cus xzke /kkeksn Qyk xksxk ds eksM ij mDr okgu dks mis{kk!mrkoysiu ls pykdj dh xbZ nq?kZVuk esa vkbZ pksVksa ds ifj.kkeLo:I ukuh ds pksVsa vkbZ rFkk yDlh dh e`R;q gqbZ\
2- vk;k mDr okgu pkyd rc mDr okgu Loheh foi{kh la[;k 2 ds fu;kstu esa gksdj mlh ds fgrkFkZ ,oa yHkkFkZ dk;Z dj jgk Fkk\
3- vk;k foi{kh la[;k 3 chek dEiuh }kjk vius fyf[kr dFku dh izkjfEHkd vkifRr;ksa ,oa fo'ks"k dFku ds e?;utj chek dEiuh vius nkf;Ro ls eqDr gks ldrh gS] ugha rks bldk izHkko\
4- vk;k nkosnkjku vius nkoksa esa vafdr iz'uxr jkf'k ;k vU; dksbZ U;k; leer jkf'k ik ldrs gSa] gkW rks dkSu&dkSu nkosnkj fdruh&fdruh jkf'k] fdl&fdl foi{kh ls ,oa fdl izdkj ls ik ldrs gS\
4- vk;k nkosnkjku vius nkoksa esa vafdr iz'uxr jkf'k ;k vU; dksbZ U;k; leer jkf'k ik ldrs gSa] gkW rks dkSu&dkSu nkosnkj fdruh&fdruh jkf'k] fdl&fdl foi{kh ls ,oa fdl izdkj ls ik ldrs gS\
6. From the claimant’s side, Mst. Nani herself as PW I and PW 2 Amra were examined. During trial, the claimant produced and exhibited copy of the FIR Ex. 1, Copy of the site-plan Ex. 2, Copy of the Post-mortem Report Ex. 3, Copy of the Driving Licence of Somalal, Ex. 4, Copy of the Registration Certificate of the Vehicle Ex. 5, Copy of the Motor Acceptance Advice-cum-Receipt issued by the United Insurance Company Ex. 6, Copy of the Policy Ex. 7, Copy of the Injury Report of Mst. Nani Ex. P/8, Copy of the chargesheet Ex. 9 and Copy of the Salary Certificate Ex. 10. However, no evidence was led from the side of defence.
7. After hearing the parties, the learned Tribunal held that the accident occurred due to rash and negligent driving of both the concerned vehicles resulting in causing injuries to Mst. Nani and death of Lakshi and decided their responsibility fifty-fifty. It was further held that as the driver, owner and Insurance Company of Truck No. HNH 5975 have not been made parties. Thus, the learned Tribunal awarded half of the compensation amount determined to the claimants. In this way, in Claim Case No. 108/91 vide common judgment and award determined Rs. 2,09,500/- as compensation but awarded half of the said amount of Rs. 1,04,750/- in favour of the claimants and directed the non- claimants No. 1 to 3 to pay or deposit the amount of Rs. 1,04,750/- as compensation plus interest @ 12% p.a. from the date 11.9.91. They were made jointly and severally responsible.
8. The claimant-appellants being aggrieved by and dis-satisfied with the amount of compensation awarded by the learned Tribunal in claim Case No. 108/91 have filed the instant appeal for setting aside the judgment and award and for enhancement of the compensation amount.
9. I have heard learned Counsel for the parties and carefully perused the record of case.
10. During the course of argument, the learned Counsel for the appellants submitted that the learned Tribunal has not properly appreciated the material available on record and gave erroneous conclusions. It was contended that the deceased along with Mst. Nani were travelling in Truck No. GJ-09T/4276. At that time, the said Truck was being driven by respondent No. 1 Somalal at a high speed and collided with Truck No. HNH 5975, which was coming from opposite direction. That was also at high speed and was driven by its driver in rash and negligent way. It was submitted that the accident occurred between the concerned trucks, the learned Tribunal also came to the conclusion that the accident occurred due to rash and negligent driving of both the trucks. In this way, it was a case of composite negligence of both the drivers of the vehicles. It was further stated that the learned Tribunal has determined total compensation Rs. 2,09,500/- but awarded 50% of the compensation amount Rs. 1,04,750/- in favour of the claimants. It was urged that the finding of the learned Tribunal that the driver and owner of Truck No. HNH 5975 have not been made parties. Thus, fifty percent has been awarded is erroneous and not sustainable. It was contended that in a case of composite negligence, the claimants were entitled to receive the amount from any of them. It was also contended that the learned Tribunal has not awarded adequate compensation amount. The deceased Lakshi was in service and he was earning Rs. 2000/- by all source. It was prayed that the judgment and Award may be modified and reasonable compensation may be determined and total compensation amount may be made recoverable from respondents No. 1 to 3, the appeal may be allowed. In support of his argument, the learned Counsel for the appellants placed reliance on the following authorities:
(1) Mst. Rahmat and Ors. v. Ramchand and Anr. 2006 WLC (Raj.) UC 73
(2) RSRTC and Anr. v. Ghan Shyam and Anr. 2006 WLC (Raj.) UC 25
(3) RSRTC and Anr. v. Rajendra Singh and Anr. 2006 WLC (Raj.) UC57
(4) Omwati and Ors. v. Mohd Din and Ors. 2001 (2) TAG (Delhi) 665
(5) Sampat Kunvvar Bai and Anr. v. Gurmeet Singh and Anr. 1988 ACJ 342
(6) New India Assurance Co. Ltd. v. Avinash and Ors. 1988 ACJ 322
(7) Rajeshwar Prasad v. Bharat Sangh and Ors. 2004 (3) WLC (Raj.) 675
11. Learned counsel for the respondents refuted the contentions of the appellants and supported the judgment and Award of the learned Tribunal. In alternate, it was submitted that in case, the payment of full compensation is directed to make by respondents No. 1 to 3, they may be permitted to take legal action against the owner, driver and Insurance Company of the other Truck No. HNH 5975.
12. I have considered the rival contentions raised by the learned Counsel for the parties and perused the findings of the learned Tribunal on each issue. The learned Tribunal, after discussing the evidence, came to the conclusion that the accident occurred due to rash and negligent driving of both the concerned vehicles. To that extent, the finding of the learned Tribunal is correct. In this respect, before the learned Tribunal, PW 1 Mst. Nani has stated that she along with her husband was traveling in Truck No. GJ 09T/4276. The driver of the said Truck was Somalal (respondent No. 1) PW 1 has further stated that Truck No. HNH 5975 was coming from front side at a high speed and both the trucks collided with each other. She has stated that she sustained injuries and her husband also sustained injuries resulting into death. PW. 2 Amra who was also travelling in the same truck, has stated that the accident occurred due to rash and negligent driving of both the trucks, in which, Mst. Nani sustained injuries and her husband was also sustained injuries resulting in death. In this way, it is a case of composite negligence and all the tortfeasors are liable jointly and severally. I have considered the contentions raised by the appellants side with regard to quantum of compensation. PW. 1 Mst. Nani has stated that her husband was peon in Panchayat Samiti, Bichhiwara Dist. Dungarpur and she has also produced salary certificate Ex. 10 showing the salary plus other allowances of Rs. 1171/- per month. The age of the deceased at the time of accident has been assessed by the learned Tribunal about 45 years. No other income has been proved. On the basis of earning of the deceased, the learned Tribunal has determined loss of income of Rs. 2 lacs. Further the learned Tribunal has awarded general damages under different heads total Rs. 9,500/-. I have considered the contentions looking to the age of the deceased, the amount determined by the learned Tribunal is reasonable and there is no scope for enhancement but the learned Tribunal has further held that as the driver, owner and Insurance Company of the Truck No. HNH 5975 have not been made party to the claim proceedings. Thus, the learned Tribunal awarded 50% of the determined amount of Rs. 1,04,7507- in favour the claimants and against respondents No. 1 to 3. To that extent, the finding of learned Tribunal is not correct. In case of composite negligence, the claimants are entitled to recover full compensation from any of the joint tortfeasors. In this respect, number of citations have been placed by the learned Counsel for the appellants. I have carefully gone through those citations. They supported the view. In 2006 WLC (Raj.) 73, it was held that in case of composite negligence, all tort-feasors are jointly and severally liable, the relevant part of para 8 is reproduced below:
In the matter of composite liability, that is where the accident occurred due to the negligence of drivers of two vehicles and therein a person dies or sustains injuries, the claimants are entitled legally to recover the amount of compensation from both the tort-feasors or against any one as their liability is joint and several. Even if the owner or the insurance company of either of the vehicle is not impleaded as party to the claim petition, it will not materially affect the merits of the claim made by the claimants.
13. Thus, on the above discussion, the finding of the learned Tribunal to this extent requires modification and it is held that full compensation as determined by the learned Tribunal Rs. 2,09,500/- is payable by the respondents to the claimants. It is further made clear that respondents No. 1 to 3 are jointly and severally responsible to pay or deposit the amount in the Motor Accident Claims Tribunal, Dungarpur. Thus they are hereby directed to make payment. It is also made clear that respondents No. 1 to 3 are free to take legal action against the driver, owner and Insurance Company of Truck No. HNH 5975, if so advised.
14. In the result, the appeal is partly allowed. The Judgment and Award of the learned Tribunal is modified to the extent that in place of fifty percent of the determined amount i.e. Rs. 1,04,750/-, the full compensation amount of Rs. 2,09,5001- as determined by the learned Tribunal with simple Interest @ 12% p.a. till realization, is awardable in favour of the claimant- appellants and against the respondents No. 1 to 3. They will be jointly and severally responsible to pay. The respondents are directed to deposit the said amount in the MACT Dungarpur after deduction any amount, paid or deposited by them under this Award within a period of two months from the date of its judgment, failing which, the claimants will be entitled to recover the same. Rest of the judgment and Award is confirmed. No order as to costs.