JUDGMENT
R.K. Rastogi, J.
1. Both these appeals have been filed against the award dated 10.1.2006 delivered by Sri Ratan Lai Dhar, then Presiding Officer Motor Accident Claim Tribunal/A.D.J. Conn No. 17, Allahabad in M.A.C.P. 775 of 2000, Smt. Seema Verma and Ors. v. Abhineet Kesarwani and Ors. Since Doth the appeals have arisen out of the same Judgment, we have heard them together and now we decide them by?. common judgement.
2. The facts relevant for disposal of these appeals are that the appellants of both these appeals filed the aforesaid M.A.C.P. In the Court of District Judge, Allahabad with these allegations that Dr. Rajan Verma who was son of petitioners No. 5 and 6 (appellants in F.A.F.O. No. 845/06 and husband of petitioner No. 1 and father of petitioners No. 2 to 4 (appellants in F.A.F.O. No. 1574/06) was an Eye Specialist & renowned Surgeon of India. He was doing his private practice, and was earning Rs. 23,000/- per month. He was an income tax payer and had paid income tax of Rs. 51,934/- in the financial year 1999-2000 on total income of Rs. 2,77,873.50.
3. On 19.11.2000 he was going to village J/Bhadwa, Saidabad P.S. Handia, District Allahabad to attend a free eye camp sponsored by Leo Club (Lions Club) on Maruti van No. U.P. 70-N-5590. It was being driven by opposite party No. 1 Sri Abhineet Kesarwani and it was owned by opposite party No. 1-A Sri Kailash Nath Kesarwani. It was insured with the Oriental Insurance Company, opposite party No. 2. The driver of the offending Van was driving it in a very rash and negligent manner. When Maruti Van reached Haripur Binda, P.S. Handia District Allahabad on G.T. Road at about 2 P.M. its driver tried to overtake a vehicle. At that time Truck No. DL 1-G-7177 was coming from the opposite direction and it collided with the above Maruti Van. This truck was owned by opposite party No. 3 Sri Sagar Singh and was being driven by opposite party No. 4 Sri Mohan Dev Sharma. Both these vehicles collided and as a result thereof Dr. Rajan Verma died on the spot.
4. The petitioners then filed this claim petition originally for recovery of Rs. 1,28,60,000/- as compensation under the following heads:
1. Loss of prospective income in future for 20 years at the rate of Rs. 20,000/- per month Rs. 48,00,000/-,(2) Loss of career Rs. 50,0000/-, (3) Loss of Amenities Rs. 10,00,000/-, (4) Loss of Enjoyment of life Rs. 10,00,000/-, (5) Loss of Love and Affection Rs. 5,00,000/-, (6) Loss due to mental agony Rs. 5,00,000/- (6) Loss of House Keeping capacity Rs. 50,000/- and (7) Cremation and last rites Rs. 10,000/-, total Rs. 1,28,60,000/-.
The petitioners subsequently amended the claim petition and added the amount under the following heads:
1. The claim of Rs. 50,00,000/-under the head ” Loss of Career-was reiterated as loss of” Brilliant Lucrative Career” (2) The amount under the head of loss of Amenities’ was enhanced from Rs. 10,00,000/-to Rs. 30,00,000/-.The amount under the head ‘ loss of love and affection’ was enhanced from Rs. 5,00,000/- to Rs. 25,00,000/- and the loss under the head loss due to mental agony ‘ was enhanced from Rs. 5,00,000/- to Rs. 65,00,000/-.Thus net enhanced amount of compensation claimed was Rs. 2,28,60,000/-.
5. The opposite Party no1 filed written statement in which he stated that he is neither owner of the Maruti Van nor he has any concern with it nor he was driving it on the date of the accident, and so the above claim against him is liable to be dismissed. The opposite party No. 1-A (owner of Maruti Van) also filed written statement in which he admitted that he is owner of the Maruti Van. He also submitted that the vehicle was insured with the Oriental Insurance Company (opposite party No. 2) and he had claimed compensation from the Insurance Company in respect of the damage to the vehicle. He further submitted that there was no negligence of the driver of the Van and the accident had taken place due to rash and negligent driving of the Truck driver. He further stated that at the time of the accident it was being driven by the opposite party No. 1 who is his nephew. It was further pleaded that the accident had taken place due to negligence of the driver of the offending Truck and he had unnecessarily been impleaded, but if any liability is fixed upon him, the Insurance Company (opposite party No. 2) is liable to pay the same.
6. The opposite party No. 1 filed an additional written statement in which he admitted that he was driving the Maruti Van at the time of the accident and pleaded that the accident took place due to rash and negligent driving of the Truck driver. Insurance Company (opposite party No. 2) also filed a written statement in which it admitted insurance of the Maruti van. It may be mentioned that it was also alleged that this Company had insured the Truck No. DL-IG-7177 also. The Insurance Company, however, denied the insurance of the above Truck and further pleaded that the accident had taken place due to rash and negligent driving of the Truck driver and so it was not liable to pay any compensation.
7. Opposite parties No. 3 and 4 i.e. the truck owner and driver did not appear to contest the above case.
8. The following issues were framed by the Presiding Officer of the Tribunal in this case:
1. Whether the accident took place on 19.11.2000 at 2 P.M. at village Haripur Binda, P.S. Handia District Allahabad on G.T. Road due to rash and negligent driving of Truck No. DL-IG-7177 resulting into death of Dr. Rajan Vernna who was travelling in Maruti Van No. U.P. 70N-5590?
2. Whether petitioner No. 1 is wife of the deceased and petitioners No. 2, 3 and 4 are his children?
3. Whether Maruti Van was insured with the opposite party No. 2 at the time of the accident and whether it was being driven by a driver holding valid licence?
4. Whether deceased Rajan Verma was an income tax payer and what was his annual income?
5. Whether claimants are entitled to get compensation. If yes, to what amount and from which of the opposite parties?
6. Whether Maruti Van No. UP-70 N-5590 was insured with the opposite party No. 2 ( Oriental Insurance Company) If not, then its effect?
7. Whether opposite party No. 4, driver of the Truck No. DL-IG 7177 did not have any valid licence at the time of the accident? If so. its effect?
9. The petitioners produced Smt. Seema Verma (petitioner No. 1) as P.W. 1, Sri Rajesh Ji Verma (petitioner No. 5) as P.W. 2, Sri Gyanendra Nath Verma Advocate as P.W. 3, Dr. Rakesh Kumar Verma as P.W. 4 and SriAvinash, eye witness of the incident as P.W. 5. Sri Abhineet Kesarwani, opposite party No. 1 was examined as D.W. 1. Besides this oral evidence, some documents were also filed to show income of the deceased and his post mortem report, site plan, technical report of the vehicle and the policy of Insurance.
10. The Presiding Officer of the Court took issues No. 1 and 7 together and held that the accident had taken place due to rash and negligent driving of both the drivers of the Maruti Van and the Truck. He held on issue No. 2 that petitioner No. 1 is widow of the deceased and petitioners No. 2, 3 and 4 are children of the deceased. He held on issue No. 3 that the driver of the Maruti Van had valid driving licence at the time of the accident. He held on issue No. 5 that the owner of the truck and its so called Insurance company had been impleaded in the case and so there was proper joinder of necessary parties and there was no defect of non joinder. He held on issue No. 8 that the Truck was not insured with the opposite party No. 2 Oriental Insurance Company at the time of the accident. He held on issue No. 9 that there was no evidence on record to prove that the truck driver had valid driving licence at the time of the accident and so this issue was decided against him. He held on issues No. 4 and 6 that the income of Dr. Rajan Verma was Rs. 22,0007- per month and so his annual income was Rs. 2,64,000/-.
11. He further pointed out that two employees were also working in the clinic of the deceased whose salary was being paid by him, and after deducting a sum of Rs. 88,000/- which he would have incurred upon himself in the clinic, the amount of dependency came to Rs. 1,76,000/- per year. He was further of the view that taking into consideration age of the deceased which was 43 years and eight months at the time of his death, the multiplier of 15 was applicable under Schedule II of the Motor Vehicles Act, and so the amount of Rs. 26,40,000/-was payable under the head of ” loss of income”. He further held that a sum of Rs. 2000/- was payable in respect of funeral expenses and a sum of Rs. 2500/- was payable towards “loss of estate”. He further held that petitioner No. 1 was entitled to recover Rs. 5,000/- for loss of consortium and the remaining petitioners were also entitled to recover Rs. 5,000/- for mental pain and suffering due to death of Dr. Rajan Verma. He therefore awarded a sum of Rs. 26,54,500/- to the petitioners as compensation along with pendentilite and future interest at the rate of 7% per annum till the date of actual recovery. He further pointed out that since the accident had taken place due to negligence of both the drivers of the Truck as well as of the Maruti Van, the owners of both the vehicles were liable to pay the amount of compensation equally and he therefore apportioned the amount between the owner of the Truck and of the Maruti Van half and half and ordered that the Insurer of Maruti Van shall be liable to pay Rs. 13,25,250/-plus interest to the petitioners and similarly opposite party No. 3 truck owner will be liable to pay Rs. 13,25,250/-plus interest being the amount of his share. The claim petition, in this way, was decreed against the Insurance Company (opposite party No. 2) and the opposite party No. 3, Sri Sagar J;. Singh (owner of the offending Truck). Being not satisfied with the amount of compensation and also being dissatisfied with the apportionment of the above amount, the petitioners No. 1 to 4 filed F.A.F.O. No. 1574/06 and petitioners No. 5 and 6 filed F.A.F.O. No. 845/06J.
12. We have heard learned Counsel for the appellants and the learned Counsel for the opposite parties No. 1 and 2. The Truck owner and the driver did not appear to contest the appeal in spite of sufficient service of notice. Learned counsel for the appellants made the following three submissions before us;
1. That the accident had taken place due to sole negligence of the Maruti Van’s driver and there was no negligence of the Truck driver and the Tribunal had erred in holding that the Maruti’s driver and the Truck’s driver were equally responsible for the accident.
2. That the Claims Tribunal had erred in apportioning the amount of compensation between the opposite parties No. 2 and 3 because in this case the deceased was not at fault and so even if it is held that the accident had taken place due to fault of truck driver and of the Maruti van’s driver, they are joint tort-feasors and it is a case of composite negligence and not of contributory negligence, and so both the opposite parties No. 2 and 3 are jointly and severely responsible for payment of compensation and it was at the option of the petitioners to recover the amount of compensation from either of these two opposite parties.
3. That the amount of compensation is insufficient because the Tribunal has not taken into consideration the future prospects of the deceased.
Let us now consider all these points one by one.
13. First of all we take up the first point which is in regard to negligence of the Truck driver in the accident. The contention of the learned Counsel for the appellants is that the petitioners had led sufficient evidence to prove that the accident had taken place due to negligence of Maruti Van’s driver who was driving it in a very fast speed and who tried to overtake a vehicle at a time when the Truck was coming from the opposite direction, and when the Truck driver had flighted his head lights and even then the Maruti Van’s driver tried to over take the vehicle, and in doing so he collided with the Truck. He contended that in view of these facts there was no negligence of the Truck driver and it was the sole negligence of the Maruti Van’s driver and so the Maruti Van’s driver should be held solely responsible for the accident and consequently the Insurance Company opposite party No. 2 should be ordered to pay the entire amount of compensation to the petitioners.
14. It is however, to be seen that the driver and owner of the Truck have not filed any appeal against the award though they had been held 50% responsible for the accident and had been ordered by the Tribunal to pay 50% compensation to the petitioners. If they were aggrieved with the above portion of award of the Tribunal they should have filed an appeal against the award but they did not do so, and so the finding of the Tribunal that the opposite parties No. 2 and 3 are responsible to the extent of 50% for the accident and so they were liable to pay 50% compensation has become final, and when this finding has not been challenged by the owner of the Truck the petitioners have got no locus – standi to challenge this finding.)
15. Learned Counsel for the petitioners has, however, submitted before us that the petitioners are aggrieved with the finding of the Tribunal because they can easily recover the amount of compensation from the Insurance Company opposite party No. 2 and since the Truck was not insured by the owner of the Truck opposite party No. 3 it shall be very difficult for them to recover the amount from the truck owner and it is possible that they may not be able to recover even half of the amount of compensation from the truck owner and in this way their own interest will be jeopardised and so they have got a right to challenge the finding of the Tribunal on this point and their appeal on this account is maintainable.
16. We do not agree with this contention of the learned Counsel for the petitioners. It is to be seen that after careful consideration of the evidence, the Tribunal has awarded compensation against opposite parties No. 2 and 3. The claimants can be aggrieved with the amount of compensation but they can not be aggrieved with its apportionment between the opposite parties because even after apportionment the same amount has been awarded to them. The question whether they shall be able to recover that amount from the owner of the Truck or not is a legal question, and the appeal can not be entertained on this ground that it is difficult to realise the amount from the owner of the truck. The machinery for recovery of the amount has been provided in Section 17 of the Motor Vehicles Act which provides for issue of a recovery certificate against owner of the offending vehicle and the amount of compensation can be recovered from owner as arrears of land revenue. As such, the claimants have got no locusstandi to challenge the liability of the truck owner on the basis of its responsibility for the accident, and in the absence of any appeal from the owner of the truck, we are of the view that the finding of the Tribunal that the driver of the truck was 50% responsible for the accident and that truck owner is liable to pay 50% of the amount of compensation, can not be challenged in this appeal. The point is decided accordingly.
Now, we take up second point.
17. It was contended by the learned Counsel for the appellants that there was no fault of the deceased in the accident and this accident had taken place due to negligence of the drivers of both the vehicles and so they are compositely liable for payment of the amount. He submitted that the Tribunal had committed legal mistake by apportioning the amount of compensation between opposite parties No. 2 and 3. He submitted that even if it is held that the truck driver’s liability was 50% in the accident and so he was liable to pay 50% of the compensation amount, this apportionment should have no effect upon the right of the petitioners to recover the entire amount from any of the opposite parties, and since it is a case of composite negligence, it should be held that the petitioners can recover the entire amount of compensation from the Insurance Company though Insurance Company will have an option in that case to recover that amount from opposite party No. 3 which it had to pay to the petitioners in respect of responsibility of opposite party No. 3. In support of this contention he cited before us two Division Bench ruling of this Court in Raghib Nasim and Anr. v. Naseem Ahmad and Ors. 1986 ACJ 405 and U.P. State Road Transport Corporation and another v. Bittan Devi and others. 1988 ACJ 291. We have very carefully gone through both these rulings. In both these cases there was head on collision between two vehicles coming from opposite directions. In the claim petition filed by heirs of the deceased passengers who had died in the accident, their Lordships held that the claimants were entitled to recover entire amount of compensation from the owner/ insurer of either of the truck, vehicles.
18. Referring to doctrine of composite liability their Lordships made following observations in paras 13 and 14 in the ruling of U.P.S.R.T. C. and Anr. v. Bittan Devi and Ors. (supra) which run as under:
13. From what we have said above, we find that the accident was due to the composite negligence of both the drivers, i.e., the bus and the truck. As to what is composite negligence is defined in Andhra Marme Exports (P) Ltd. v. P. Radhakrishnan 1984 ACJ 355 (Madras) Pollock on Torts, 15th Edn, held:
Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled, o’ course, within the limits set out by the general rules as to remoteness o: damage to sue all or any one of the negligent persons. It is no concern o: his whether there is any duty of contributory or indemnity as between these persons though in any case he can not recover on the whole more than his whole damage.
14. since this was a case of composite negligence the respondents had a right under the law to sue the Corporation for the compensation for what had been suffered by them. The liability of the truck and the bus was joint and several. This being the position, the respondents could choose either of the two or prefer claim against both. In this view of the matter, although we have differed from the finding of the Claims Tribunal that on accident took place due to the sole negligence of the bus driver but that does not make out any case to reverse its judgement. The accident even if was due to the negligence of both, the liability of the Corporation would net vanish, extinguish or diminish.
19. In reply learned Counsel for the Insurance Company referred to two Division Bench rulings one of Karnataka High Court in Karnataka State Road Transport Corporation v. Reny Mammen 1990(2) T.A.C. 471 and the other of Gujarat High Court in Gujarat State Road Transport Corporation v. Nabuben and Ors. 1997 (11) T.A.C. 439 (Gujarat). In both the above cases there was head-on collision between two vehicles and it was held that their drivers and owners could not be held to be joint tort – feasors because they did not have any common intention and they were several tort – feasors, and so the claimant could not recover the entire amount of compensation from the opposite party of his own choice, and the amount could be recovered from the owners of both offending vehicles in the ratio of their liability only. Referring to doctrine of composite liability their Lordships observed in para 19(iv) of the ruling in Reny Mammen (supra) that if the owners of two motor vehicles agree to participate in a motor race, and if in the course of racing, an accident is caused in which both the vehicles are involved resulting into death or injury to a third person, the owners of both the vehicles would be joint tort feasors. Their Lordships have, however, observed in para 20 of the Judgment that where an accident takes place by head on collision between two vehicles coming from opposite directions, it is not a case of concerted or joint action on the part of the drivers owners, and so drivers and owners of those vehicles can not be treated to be joint tort-feasors and as such they are not jointly liable for payment of compensation.
20. It was contended by the learned Counsel for the Insurance Company that the law laid down in this ruling of Karnataka High Court is more elaborate and so it should be followed. We do not find any force in the above contention.
21. It is to be seen that under the law of precedents the earlier ruling of a Division Bench of the Court is binding upon another Division Bench of the Court and so we have no other option but to follow the Division Bench ruling of this Court unless and until we doubt the correctness of that ruling and refer the matter to a larger Bench for determination of that point. Hence, in view of Division Bench rulings of this court, the rulings of other High Courts have got no binding effect upon us.
22. Now we take up the contention of the learned Counsel for the Insurance Company that the law laid down by Division Bench of our own High Court appears to be erroneous in view of the Division Bench rulings of Karnataka and Gujarat High Courts referred to above. In this connection it is to be seen that there is no discussion on any law point in the ruling of Gujarat High Court. However, In the ruling of Karanataka High Court the law on the point has been enunciated but with due respect to the Hon’ble Judges who decided the above case of Karnataka State Road Transport Corporation v. Reny Mammen (supra), the reasons given by their Lordships in paras 19(iv) and 20 of the above ruling do not appear to be sound Their Lordships have observed in para 19(iv) that if the owners of two motoi vehicles agree to participate in a motor race and if in the course of racing an accident is caused by two vehicles, it shall be taken to be a case of composite liability committed by joint tort-feasors but as observed in para 20 of the judgement, where two vehicles are coming from opposite directions it shall not be treated to be a case of composite liability and the drivers owners of both the vehicles shall be treated to be several tort feasors. In their opinion the basis of this difference is that in the case o’ Motor race there is joint intention of the driver of every vehicle to win try race but there is no such joint intention in case of accident by two vehicles coming from opposite directions. We do not agree with this view because in case of Motor race also there is no joint intention of the drivers of the vehicles to win the race jointly but there is separate intention of each driver of the vehicle to win the race individually, and when an accident in the course of motor race has been deemed to be a case of joint liability, the same doctrine shall also apply to a case of head on collision between two vehicles coming from opposite directions because in that case also drivers of both the vehicles have got the same intention to reach their destination at the earliest without any wastage of time and in achieving that goal they commit accident. So with due deference to their Lordships, in our opinion, the law laid down by their Lordships of Gujarat and Karanataka High Court and the distinction drawn by them does not appeal to reason and we are of the view that the law laid down by two Division Benches of this Court in the rulings cited above is correct and so we follow the same.
23. It may also be mentioned that the following High Courts have taken the same view which has been taken by this Court on the point of composite liability in the cases noted below:
1. Madras High Court
Krishnaswami v. Narayanan AIR 1939 Md. 261
2. Gauhati High Court
Heera Devi v. Bhabha Kanti Das AIR 1977 Gau 31
3. Madhya Pradesh High Court
Manjula Devi Bhutta v. Majusri Raha 1968 ACJ
4. Orissa High Court
(i) Archana Nayak v. State of Orissa
(ii) Golok Chandra Das v. Kausalya Nayak 1978 ACJ 84(Ori)
(iii) New India Assurance Co. Ltd. v. Ashok Kumar Acharya (1994)1 CJR 293
(iv) Divisional Manager Oriental Assurance Co. v. Jasoda Mohanta
5. Punjab & Haryana High Court
(i) Veena kumari Kohi v. Punjab Roadways 1967 ACJ 297.
(ii) Pushpa Sawhney v. Piara Singh
6. Rajasthan High Court
(i) United India Fire & General Insurance Co. Ltd. v. Sayar AIR 1976 Raj 173.
24. The Karnataka High Court while taking the different view in the above judgements has not followed to its own rulings in Ram Bai @ Meenakshi v. H. Mukanda Kamath 1986 ACJ 561 ( Kant)(DB) and in United India Fire and Genl. Insurance Co. Ltd. v. U.E. Prasad: AIR 1985 Kant 160 in which a different view has been taken and it has been held that in case of the collision between two vehicles both of them are jointly and severally liable for payment of compensation as joint tort-feasors.
25. The position in this way is that the view of this Court on the point of composite liability is supported by the rulings of the Madras, Gauhati, Madhya Pradesh, Orissa, Punjab & Haryana and Rajasthan High Courts referred to above, and it is also fortified by the rulings of the Karnataka High Court in the cases of Ram Bai and United India Fire and Genl Insurance Co. Ltd. (cited above) and so we follow the same.
26. The result is that in spite of the fact that the driver of the truck was held 50% liable for the accident and that the truck owner has been ordered to pay 50% of the amount of compensation, the petitioners have got right to recover the entire amount of compensation from any of the two opposite parties No. 2 and 3 and the Judgment debtor who is burdened with the liability of the other Judgment debtor shall be entitled to recover the amount from that Judgment debtor. The point is decided accordingly. Now we come to point No. 3 regarding amount of compensation. Having given careful consideration to the evidence and the Judgment of the Tribunal we are of the view that the Tribunal has properly fixed the amount of compensation and it does not require any interference.
27. Learned Counsel for the appellants cited before us a ruling of Allahabd High Court in U.P.S.R.T.C. and Ors. v. Smt. Swarna Lata and Ors. 1996 Du. Mu. Pra. 162 (LKO). In this case an Advocate aged 2b years had died in a motor accident. He was earning Rs. 2000/- per month at that time and taking into consideration his age it was held that in future his income could be enhanced to Rs. 4000/- per month and so a sum of Rs. 4,80,000/- was awarded as compensation. It is to be seen that in the present case also a sufficient amount of Rs. 26,54,500/- has been awarded and so the above ruling does not render any help to the appellants.
28. Another ruling cited by the learned Counsel for the appellants is of Delhi High Court in the case of Dr. Nagendra Ghosh Gupta and another v. Lekhi Ram and Ors. 2001 (2) TAC. 46 (Delhi). In this case a Doctor aged 30 years had died in an accident. He had started his clinic and was earning Rs. 6000/- per month. The Tribunal assessed his gross income as Rs. 7,500/- per month and applying the multiplier of 18 awarded Rs. 8,40,000′-. The High Court considering the future prospects enhanced that amount to Rs. 21,60,000/ as compensation This ruling is also of no material help to the appellants because in the present case the annual dependency has been assessed to be Rs. 1,76,000/- per year approximately i.e. Rs. 14,700/- pet month and on that amount the petitioners have been awarded Rs 26,54,500/- as compensation which is more than Rs. 21,60,000/- as awarded in this case.
29. Another ruling cited by the learned Counsel for the appellants is of Delhi High Court in Kailash Rani and Ors. v. Satya Pal Singh and Ors. 1996 ACJ 297. In this case the Tribunal had assessed the dependency at Rs. 667/- per month and had awarded a sum of Rs. 1,02,051/-. The High Court taking into consideration the future prospects fixed dependency at Rs. 1,500/- per month and enhanced the award from Rs. 1,02,051/- to Rs. 2,70,000/-.
30. Learned Counsel for the appellants also cited before us a ruling of Hon’ble Supreme Court in Shashendra Lahri v. Unicef and Ors. (1997) II SCC 446. In this case a Student of B.Com. aged 17 years suffered multiple injuries in an accident and taking into consideration his good academic record and future prospects compensation of Rs. 58,000/- was awarded, but the Hon’ble Apex Court enhanced that compensation to Rs. 4,00,000/-.
31. Learned Counsel for the appellants also cited before us a ruling of Hon’ble Supreme Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas and Ors. . In this case the compensation was determined by the Tribunal on the basis of entire future earnings for over the period of lost life expectancy, then making deduction for uncertainties of life. This approach was held to be erroneous by Hon’ble Apex Court. It is to be seen that in the present case no such deduction has been made in respect of uncertainties of life and so this ruling also does not render any help to the appellants.
32. It may also be mentioned that all these rulings cited by the leaned counsel for the appellants are relating to the accidents which had taken place prior to enforcement of the Amending Act of 1994 whereby Schedule-II was added in the Motor Vehicles Act, 1988 making a structural formula for award of compensation. Learned Presiding Officer of the Tribunal has awarded compensation according to that formula in the present case and we find no error in his judgement. Hence, we are of the view that the appellants are not entitled to enhancement of compensation.
33. The position in this way is that both the appeals deserve to be v-partly allowed to this extent only that the petitioners shall be entitled to recover the entire amount of compensation from the Insurance Company opposite party No. 2 but the Insurance Company shall be entitled to recover that amount from the opposite party No. 3 which it had to pay to the petitioners to bear the liability of opposite party No. 3 as a joint tort feasor.
34. Hence, while maintaining the amount of compensation of Rs. 26,54,500/- as awarded by the Tribunal we order that the petitioner appellants shall be entitled to recover the entire amount of compensation from the Insurance Company opposite party No. 2. The Insurance Company opposite party shall, however, be entitled to recover that amount of compensation from opposite party No. 3 which it had to pay to the petitioners in respect of the liability of opposite party No. 3 as joint tort-feasors and this amount can be recovered by the Insurance company opposite party No. 2 from opposite party No. 3 by filing an execution application before the Motor Accident Claim Tribunal under the provision of Motor Vehicles Act. Parties to bear their own costs of these appeals.
