IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.643 of 2007 ORIENTAL INSURANCE COMPANY LTD….Appellant. Versus SUSHILA DEVI & ORS. …………… Respondents. ----------- For the appellant: Sri Ashok Priyadarshi, Advocate. For the respondents: Sri Arvind Kumar Tiwary, Mrs. Rashmi Kumari and Sri Dineshwae Tiwari, Advocates. O R D E R 8 29.6.2010 The appellant has filed this Misc. Appeal against the Judgment dated 1.9.2007 and the Award dated 17.9.2007 passed by the learned Fast Track Court-IVth – cum- Motor Vehicle Accident Tribunal, Munger, in M.V.Claim Case No.50/02 awarding total compensation of Rs.12,69,500/-. 2. The claimants filed the aforesaid claim case claiming compensation on the facts, inter alia, that the deceased Prakash Mandal was traveling in Tata Maxi bearing Registration No.BR 10A 6221 from Bariyarpur , Munger. The said Tata Maxi collided with Tractor No.BR 9A – 4976 at about 1.30 P.M. on 26.1.2002 as a result of which the Maxi turned turtle as a result of which various passengers were injured. Prakash Mandal died during course of treatment. F.I.R. was lodged which was registered as Mufassil P.S. Case No.16/02 against both the drivers, i.e., the driver of Tata Maxi and the Tractor. Charge sheets were also submitted against both the drivers. 3 The further case is that the deceased Prakash Mandal was teacher in Gurunanak Middle School and was drawing salary of Rs,12,403/-. The Oriental Insurance Company 2 Ltd. the appellant is the insurer of Tata Maxi bearing Registration No.BR 10A – 6221. The Tractor being Registration No.BR 9A- 4976 is also insured by O.P.No.3, the Oriental Insurance Company Ltd. who is the appellant herein. 4. The Oriental Insurance Company and the other respondents appeared and filed contesting written statement. According to their written statement it is a case of contributory negligence and the owner of the Tractor has not filed the insurance certificate and the insurance policy. According to the owner of the Tractor the Tractor was not involved in the accident. The owner of the Tata Maxi stated that the Tata Maxi was insured with Oriental Insurance Company Ltd. 5. After framing the issues the learned Tribunal passed the Impugned Judgment and Award. 6. The learned counsel for the appellant submitted that although the case of contributory negligence is admitted by the claimants themselves and the charge sheet was also filed against both the drivers but the learned Tribunal has directed the appellant to pay the total compensation amount although there was no proof that the Tractor was insured with the appellant. The learned counsel also submitted that the Tribunal has wrongly calculated the compensation amount which is exorbitant. On the other hand, the learned counsel for the respondents submitted that in case of composite negligence the claimants can claim compensation from any of the tort – feasors 3 because all of them are liable jointly and severally. So far the second aspect of the argument is concerned the learned counsels submitted that there is no illegality in the calculation of the compensation. On these grounds it is submitted that Misc. Appeal is liable to be dismissed. 7. As stated above the learned counsel for the appellant raised only two points. So far the first point is concerned it is submitted that the applicants respondents have failed to prove that the Tractor was insured with the Insurance Company, the appellant. According to the learned counsels it is admitted case by the claimants that the deceased died because of rash and negligent driving by the driver of Maxi as well as the Tractor and, therefore, the learned court below could not have directed the appellant to pay the entire compensation. 8. It may be mentioned here that the Insurance Company has not adduced any evidence in the court below in support of the pleadings raised in the written statement regarding the rash and negligent driving by the driver of the Tractor. It is well settled principles of law that pleading is not the proof of the fact alleged in the pleading. Evidence is required for proving the fact alleged. In the present case although it was raised that the driver of the Tractor was also negligent but no evidence in support of the said fact was adduced by the Insurance Company. After considering the evidence available on record the learned court below noticed this fact that there was no evidence contrary 4 to the evidence adduced by the applicant and came to the conclusion that the accident took place because of rash and negligent driving by the driver of Tata Maxi No.BR 10A 6221. 9. The other aspect of the matter is that if number of persons are responsible for a tort they are all responsible with each other and also severally for the whole amount of the damages caused by them irrespective of the extent of their participation. In the present case even if it is held that the driver of the Tractor was also negligent it will be a case of composite negligence. Therefore, the claimant can claim the whole amount either from the Tata Maxi or the Tractor because both are liable jointly and severally. In a decision reported in 1999 (3) T.A.C. 367; ( Ganesh versus Syed M.Ahmad) the Full Bench of the Hon’ble Karnataka High Court has also held that in an accident caused by composite negligence the injured or legal representatives of deceased can claim the entire compensation from any of the several tort – feasors as their liability is joint as well as severally. 10. In view of the above settled principles of law I find no force in the submission of the learned counsel for the appellant. 11. So far the wrong calculation regarding compensation is concerned, from the impugned order it appears that the learned court below has deducted the allowances from the gross salary and came to the conclusion that his monthly 5 income was Rs.10,569/-. It was made a round figure of Rs.10,500/-. The learned court below also deducted 1/3rd from the said monthly income as personal expenses of the deceased. Although there is no straight jacket formula to deduct 1/3rd amount but usually the same principle is adopted in each case and, therefore, I find no illegality in deducting the same. Since the deceased was found to be aged about 43 years the learned Tribunal has rightly applied multiplier of 15 and, therefore, I find no illegality in the calculation and, moreover, the amount awarded appears to be just compensation. In view of the above facts I find no force in the submission of the learned counsel for the appellant. 13. In the result, I find no merit in this Misc. appeal and, accordingly, this Misc. appeal is dismissed. 15. The statutory amount deposited by the appellant may be transmitted to the court below so that it may be paid to the claimants. AnilKr.Sinha ( Mungeshwar Sahoo, J. )