ORDER
K.S. Chauhan, J.
1. This appeal has been preferred being aggrieved by the award dated 17-11-2004 passed by the II Additional Motor Accidents Tribunal, Sehore in M.C.C. No. 40/04, whereby the claim petition filed by the appellants under Section 166 of the Motor Vehicles Act for compensation on account of death of Shivram caused in the motor accident has been rejected.
2. The facts of the case in short are that on 14-12-2000 at about 9:00 p.m. Shivram was pillion rider in Scooter No. MP04-G-4616 which was being driven by Rajkumar. They were going from Ashta to Sehore. One trolley filled with sugarcane and Tractor No. MBF-2760 was parked on the road near the well of Jagdish Jat without any parking light on. The scooter dashed with it. They became seriously injured. Shivram was carried to Hamidia Hospital where he succumbed to death on 16-12-2000 on account of the injuries sustained by him in the motor accident. The report was lodged by Rajkumar in Police Station Mandi wherein the Crime No. 349/2000 was registered under Sections 279, 337, 304A of IPC against the respondent No. 1-Rai Singh. The respondent Nos. 2 and 3 were the registered owner and respondent No. 4 was in the possession of the offending vehicle at the time of accident.
It was also averred that Shivram was working as a Peon in Laxmibai Girls Middle School, Sehore and was getting salary of Rs. 1,800/-. He was also doing the work of tailoring and earning Rs. 200/- per day. The claimants suffered a great loss on account of death of Shivram caused in the motor accident, therefore, they filed the claim petition claiming the compensation of Rs. 80,50,000/- to be awarded for the death of Shivram caused in the motor accident.
3. The respondent No. 1 filed the written statement denying the claim and liability mainly contending that he was not the driver of tractor-trolley on the date of accident. However, has contended that he was having valid driving licence. Further he has stated that he has been falsely implicated in this case, therefore, he is not liable to pay any compensation.
4. The respondent No. 2 has also submitted the written statement repudiating the claim mainly contending that respondent No. 1 was not in his employment. It is also contended that the driver of scooter was driving it in the intoxicated condition and dashed against the tractor parked on the side of road. It is also further contended that the vehicle was sold to respondent No. 4 in the year 1997, therefore, he is not liable to pay compensation.
5. The respondent No. 3 proceeded ex parte.
6. The respondent No. 4 also submitted the written statement mainly contending that he was not in the possession of that tractor trolley on the date of incident. He has sold it to Ratan Singh before two years back, therefore, he is not liable to pay compensation.
7. On the basis of the pleadings of the parties, the Tribunal framed the issues. Parties adduced their evidence. On appreciation of evidence the Tribunal found that the accident occurred due to rash and negligent driving of the scooter by scooter driver. It was not found proved that the driver of tractor trolley parked it on the road consequently the driver of scooter dashed against it however, it was found that Shivram died on account of the injuries sustained in the accident. The Tribunal found the case not proved hence dismissed the same. Being aggrieved by the award the appellants have filed the instant appeal under Section 173 of Motor Vehicles Act, 1988 on the grounds mentioned in the memo of appeal.
8. The learned Counsel for the appellants submitted that the Tribunal has not appreciated the evidence in its proper perspective and has committed illegality in not relying on the statement of Rajkumar who has categorically stated that the tractor and trolley was parked on road without parking light on and signal. The Tribunal has committed illegality in holding that scooter driver is responsible for this accident. The charge sheet was filed against the tractor trolley driver, therefore, the Tribunal ought to have accepted that the accident occurred due to the negligence of the tractor and trolley driver who parked the same at the wrong place, therefore, the impugned award be set aside and suitable compensation be awarded on account of death of Shivram caused in the motor accident.
9. On the other hand, the learned Counsel for the respondent Nos. 2 to 4 Shri Rajesh Nema has supported the award and submitted that the appellants failed to prove their case, therefore, the Tribunal has rightly dismissed their claim petition hence no interference is called for in this appeal.
10. The main point for consideration in this appeal is that whether the Tribunal has committed any illegality in dismissing the claim petition filed by the appellants?
11. We have perused the record and entire evidence adduced in the case.
12. Pushpa (A.W. 1) the widow of deceased Shivram and Ramesh Chand Malwiya (A.W. 2) is the brother-in-law of deceased have stated that Shivram died in the motor accident.
13. Rajkumar (A.W. 3) is the scooter driver. He has deposed that on 14-12-2000 he was driving the scooter and Shivram was sitting as pillion rider. One trolley No. MBF-2760 filled with sugarcane was parked on the road. There was no parking light or any signal. One truck was coming from Bhopal side on account of dazzling light of that truck he could not see the tractor trolley parked there and dashed against trolley. He sustained the injuries. Shivram also sustained injury and became unconscious at the spot. Shivram was carried to the Sehore Hospital from where he was referred to Hamidia Hospital, Bhopal and succumbed to death during the course of treatment. The respondent No. 1 Rai Singh was the driver of that tractor trolley and after seeing the accident he ran away from the spot. Further he has submitted that he lodged dehati nalishi Exh. P-1.
14. In cross-examination this witness has stated that he was not driving the scooter in the intoxicated condition. He has further deposed that the tractor trolley was not parked in the right direction.
15. Rai Singh (NAW 4) has stated that he has not caused this accident. However, he has admitted that his driving licence and some other documents relating to this vehicle seized by the police vide Exh. P-9.
16. Jagdish Jat (NAW 2) has stated that one trolley filled with sugarcane was parked near to his house. He came out from his house after hearing the cries. In cross-examination he has stated that he has not witnessed the incident and there was not any traffic signal where the trolley was parked.
17. Satyaveer Singh Yadav (NAW 3) Head Constable who has investigated the case stated that he prepared the map Exh. P-4 and has also stated that the trolley filled with sugarcane was seized from the road side. He has also admitted that tractor No. MBF 2760 with trolley was seized vide seizure memo Exh. P-5. During the course of investigation, he found that the accident occurred due to the negligence of the driver of tractor trolley, therefore, the challan has been filed against the respondent No. 1.
18. On appreciation of the evidence the statement of Rajkumar (AW 3) seems to be reliable because his presence at the spot cannot be doubted at the time of incident. He has clearly stated that the tractor trolley parked on the road without parking light or signal and on account of dazzling light of another truck he could not see the parked vehicle and hence dashed against it. Thus the accident caused due to the negligence of driver of tractor trolley.
19. Further his statement is supported by the documents filed by the claimants in support of their claim petition. From the statement of Satyaveer Singh Yadav it is manifestly clear that the offence against the respondent No. 1 has been registered and during the course of investigation, it was found that this accident occurred due to the negligence of the driver of tractor trolley hence the charge sheet was filed against him.
20. On perusal of entire evidence, it can safely be said that the accident had not occurred due to rash and negligent driving by the scooter driver but it occurred due to the negligence of driver of tractor trolley who parked it on the road without any parking light or indicator. Thus the driver failed to take the necessary care and precaution while parking the vehicle.
21. The learned Counsel for the appellant has placed reliance on the judgment rendered in the case of The New India Assurance Co. Limited v. Smt. Kalpana 2007(1) M.P.H.T. 423 (SC). In this case, the deceased was driving his vehicle which dashed with a truck parked on the road in a running condition without any indicator. The deceased sustained grievous injuries and later died. The deceased was aged 33 years at the time of accident. The finding of the Claims Tribunal that accident took place on account of negligence of the deceased and on that finding dismissed the claim petition was set aside by the High Court. The High Court held that the truck was negligently parked on the road in a running condition without any indicator. In these circumstances the High Court held that insurer was liable to pay compensation. The view of the High Court was affirmed by the Hon’ble Apex Court but explaining in detail the multiplier to be applied reduced the amount of compensation fixed by the High Court.
22. As Truck and Tractor both appear to be negligent, driver of Truck did not use dipper and Tractor Trolley was parked without signal and switching on parking light. The deceased Shivram was pillion rider who died in this accident, therefore, his legal representatives are entitled to get compensation from any of the joint tort-feasors of the vehicles in the light of decision of Full Bench of this Court in Sushila Bhadoriya and Ors. v. MPSRTC and Anr. , 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 insurer of both the vehicles or anyone of them.
(ii) There can not be apportionment of the liability of joint tort-feasors. In case both the joint tort-feasors 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 tort-feasors.
23. Thus in the light of Apex Court decision and the evidence adduced in this case, we find that the accident occurred due to the negligence of tractor trolley driver also by parking at the wrong place without taking proper precaution at the time of parking the vehicle. Thus we set aside the finding of Tribunal that the accident did not occur due to negligent of respondent No. 1.
24. Now we come to the question of determination of the compensation to be awarded to the legal representatives of deceased Shivram.
25. Pushpa (A.W. 1) has deposed that her husband was serving in a Girls Middle School, Sehore on the post of Peon and getting salary of Rs. 1900/- per month. Apart from it he was also doing the tailoring work and earning Rs. 200/- per day.
26. Ramesh Chand Malviya (A.W. 2) has also supported her evidence in this regard.
27. N.P. Mathil (A.W. 4) has deposed that Shivram was posted as temporary/daily wager in Government Maharani Laxmibai Kanya Higher Secondary School, Sehore. He was posted since 3rd April, 1992 and he was getting the salary of Rs. 1,882/- per month at the rate prescribed by the Collector, Sehore. He has further deposed that the rates were revisable after every six months. At present the rate is fixed at Rs. 2,036/-. He has filed the salary certificate Exh. P-20 and voucher Exh. P-21 and statement of bill Exh. P-22.
28. Thus from the evidence of appellants adduced in the case it is clearly established that deceased Shivram was employed as temporary Peon in the establishment of Government Maharani Laxmibai Kanya Higher Secondary School, Sehore and was getting the salary at that time at Rs. 1,882/-. His pay was likely to be revised after every six months by the Collector, Sehore.
29. Bharat Singh (A.W. 4) has deposed that Shivram was working at his tailoring shop and was getting Rs. 150-200 per day.
30. Since Shivram was Peon at the time of accident and was getting the salary of Rs. 1,882/- per month, keeping in view the future chances that his pay was likely to be revised from time to time, we deem it proper to assess his monthly income at Rs. 2,000/- per month, annually Rs. 24,000/-. After deducting 1/3rd amount which he would have spent on himself had he been alive the annual dependency comes to Rs. 16,000/-. Since he was of 25 years of age hence the multiplier of 18 is applicable and the same is applied. Thus the compensation comes at Rs. 2,88,000/-. Since he was hospitalized in Sehore and Hamidia Hospital, Bhopal and got the treatment there and died after 2-3 days of the accident, therefore, Rs. 7,000/- is awarded towards the medical expenses incurred on his treatment. In addition to it Rs. 30,000/- is awarded in the customary heads such as funeral expenses, loss of estate, loss of expectancy of life including Rs. 7,500/- awarded to the widow on account of loss of consortium. Thus the total compensation comes to Rs. 3,25,000/-. This amount shall carry interest at the rate of 6% per annum from the date of filing of the claim petition till realisation.
31. From the evidence it transpires that the respondents are trying to shift the responsibility from one to another. As it is clear that the respondent No. 1 was the driver of the offending vehicle at the time of incident. The vehicle was registered in the name of respondent Nos. 2 and 3.
32. Amritlal (NAW 1 and 5) has stated that this tractor was in his possession since 5 years but he has sold it to Ratanlal in the year 1998. Rameshchandra (NAW 6) has also supported the statement of Amritlal. Thus Amritlal has stated that he sold the tractor to Ratanlal in the year 1998 but there is no document in support of his statement.
33. On perusal of record it transpires that Ratanlal was made the party but subsequently deleted his name on his application. Thusprima facie there is no documentary evidence that the offending vehicle was sold to Ratanlal at that time.
34. Amritlal (NAW 1 and 5) produced the power of attorney Exh. D-1 made by respondent Nos. 2 and 3 in his favour.
35. Since respondent Nos. 2 and 3 are the registered owner of the vehicle and Amritlal has admitted that this vehicle was in his possession since five years, it has not been proved that it was sold to Ratanlal. In such circumstances, all the respondents are jointly and severally liable to pay the compensation.
36. Consequently, the appeal is allowed partly. The impugned award is set aside. The appellants are entitled to receive the compensation of Rs. 3,25,000/- with interest at the rate of 6% per annum from the respondents jointly and severally. There shall be no order as to costs.