IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 146 of 2005 along with FAO No. 494 of 2005 Date of Decision : November 11, 2009 FAO No. 146 of 2005 Oriental Insurance Company Appellants Versus Sh. Ranjeet Singh and others. Respondents FAO No. 494 of 2005 Sh. Ranjeet Singh and others Appellants Versus Sh. Shamsher Singh and others Respondents. Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. FAO No. 146 of 2005 For the appellant : Mr. J. L. Kashyap, Advocate, for the appellant. For the respondents : Mr. Jagdish Thakur, Advocate, vice Mr. N. K. Thakur, Advocate, for respondents No. 1 to 3. Mr. Sanjeev Kuthiala, Advocate, for respondents No. 4 and 5. FAO No. 494 of 2005 For the appellants : Mr. Jagdish Thakur, Advocate, vice Mr. N. K. Thakur, Advocate, for the appellants. For the respondents : Mr. Sanjeev Kuthiala, Advocate, for respondents No. 1 and 2. Sanjay Karol, J. (Oral) These appeals arise out of common impugned award dated 5.1.2005 passed by the Motor Accident Claims Tribunal, Una, H.P. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 in MAC Petition No. 19 of 2003, titled as Sh. Ranjeet Singh & others versus Sh. Shamsher Singh & others. Both the claimants as also the insurer are aggrieved, hence their appeals are being heard and decided together. Appeal FAO No. 146 of 2005 has been filed by the insurer and Appeal FAO No. 494 of 2005 has been filed by the claimants. Facts necessary for adjudication of the present appeals are as under. Claimant Sh. Ranjeet Singh filed a petition under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act) claiming compensation of a sum of Rs. 10 lacs on account of death of Sh. Rachhpal Singh. The accident occurred due to the rash and negligent driving on the part of Sh. Sukhdev Singh (respondent No. 5 herein) who was driving tractor No. HP-19-9489. The deceased who was travelling on scooter bearing No. HP-19A-0797 was hit by the tractor in question and as a result thereof he sustained injuries and died on 10.12.2001. The petition was opposed by Sh. Shamsher Singh the owner and Sh. Sukhdev Singh the driver of the tractor inter alia on the ground that in fact the vehicle was not involved in the accident at all and in connivance with the police officials a false complaint had been lodged. The tractor having been insured with M/s Oriental Insurance Company Ltd., the insurer opposed the petition inter alia on the 3 ground that material terms and conditions of the policy stood breached inasmuch as the driver was not possessed with a valid and effective driving licence and that for want of impleadment of necessary parties i.e. the owner and the driver of the scooter who had contributed to the occurrence of the accident, the petition is bad for non-joinder of necessary parties. Based on the pleadings of the parties the Tribunal framed the following issues: “1. Whether respondent No. 2 was driving tractor No. HP-19-9489 on 9.12.2001 at 9.20 p.m. at village Kuthera Jaswalan in a rash and negligent manner resulting in death of Rachhpal Singh as alleged? OPP 2. If issue No. 1 is proved whether the petitioner is entitled for compensation, if so, from whom? OPP 3. Whether respondent No. 2 who was driving tractor No. HP-19-9489 was not having a valid and effective driving licence at time of accident and tractor was being plied without any valid RC and fitness certificate as alleged? OPR-3 4. Whether the petition is incomplete, vague and does not disclose any cause of action as alleged? OPR-3 5. Whether the petition is bad for non-joinder of necessary parties as the owner and driver of the scooter No. HP-19-A-0797 has not been impleaded as party as accident took place due to rash and negligent of the driver of the said Scooter as alleged? OPR-3 6. Relief.” 4 Issues No. 1 and 5 were decided by the Tribunal by holding that even though the driver of the tractor was negligent but however since Sh. Manohar Lal was driving the scooter with two persons as pillion riders therefore he also contributed to the negligence and thus was guilty to the extent of 33%. The claimants being dependants were held entitled to payment of compensation of a sum of Rs. 1,97,200/-. The vehicle was found to have been insured and the driver of the tractor possessed with a valid and effective driving licence. However, the insurer was directed to pay the entire awarded amount to the claimants and recover 33% of the same from the owner of the scooter. I have heard the learned counsel for the parties and perused the record. Undisputedly the insurer had neither taken any steps nor sought permission under Section 170 of the Act. It had also not moved any application or requested the tribunal to implead the owner/driver of the scooter as party to the claim petition. Issue No. 5 was decided by the Tribunal by holding that the petition was not bad for non-joinder of parties. In the impugned award the Tribunal has held as under: “23. Now the next question which is equally important is whether the respondents No. 1 & 2 are liable to pay the entire amount of compensation when this Tribunal has given the findings on issues No. 1 & 5 that 5 respondent No. 2 has contributed to the extent of 66% in causing the accident. Almost under similar circumstances this question came up for consideration before a Full Bench of Karnataka High Court in K.S.R.T.C. vs. Arun, AIR 2004 Karnataka 149. It was also a case where there were allegations that the drivers of the two vehicles were guilty of composite negligence. It was ruled that where a claim petition is filed by injured or legal representatives of the deceased due to injury or death arising out of the use of motor vehicles due to the composite negligency of the drivers of the two vehicles, the claimant can recover compensation from any one of the joint tort-feasors and the just compensation to which he is entitled cannot be reduced for non-impleading of the other joint tort- feasor. The claimant can proceed against either or both of the joint tort-feasors where both the joint tort- feasors are parties. If the claimant proceeds against any one of the joint tort-feasors, one joint tort-feasors having satisfied the award, can proceed to recover the amount held to be payable by the other tort-feasors under the same award in accordance with Section 174 of the Act. However, where the claimant has filed a petition against one of the joint tort-feasors without impleading the other tort-feasors, to do which he is entitled to, the joint tort-feasors is bound to satisfy the award and negligence of the other tort-feasors, cannot be a defence to reduce compensation payable to the claimants. So far as the claimant is concerned, his claim cannot be defeated or reduced due to non impleading of other tort-feasors. The appointment of negligence or blameworthiness between two joint tort-feasors would 6 arise only when both are parties to the petition. If other joint tort-feasors is not made a party, it is always open to the impleaded respondents to get impleaded other joint tort-feasors so that their respective blameworthiness can be apportioned so as to enable them to claim contribution from the other. If the claimant chooses to proceed to recover the amount awarded from one of them only. It is well settled that in the absence of both the joint tort-feasors, it would not be appropriate to apportion negligence or blameworthiness as the said finding would not be binding on the other joint tort-feasors, who is not a party to the proceedings and Courts and Tribunals should not pass judgment or order, which cannot be executed. However, the only joint tort-feasors, who is made a party to the petition and satisfied the award cannot be said to be without any remedy. It is open to him to claim contribution from the other joint tort- feasors to the extent of his blameworthiness.” While arriving at its conclusion the Tribunal got swayed with the fact that while driving the scooter Sh. Manohar Lal was carrying two persons as pillion riders which was in violation of the provisions of Section 128 of the Act. Importantly the Tribunal had not found him to have driven the scooter in a rash or negligent manner or that carrying two passengers by itself had in any manner contributed to the occurrence of the accident. I have perused the statement of Sh. Manohar Lal (PW-3). In his affidavit tendered in examination-in-chief he has clearly deposed 7 that the accident occurred due to the rash and negligent driving on the part of the driver of the tractor and that he had been driving the scooter carefully. In the cross examination it has also not been suggested to this witness that the scooter was being driven by him in a rash and negligent manner which was the cause of the accident or that the factum of carrying two persons as pillion riders had in any manner contributed to the occurrence of the accident. Hence the finding returned by the Tribunal, holding Sh. Manohar Lal to be a joint tortfeasor are not borne out from the record and are erroneous. The Tribunal has been too presumptuous in his assumptions. Violation of Section 128 of the Act, by itself would not amount to negligence on the part of the scooter driver. In some what similar circumstances in Managing Director, TNSTC Ltd. versus K.I. Bindu and others, (2005) 8 SCC 473 the Apex Court held that where there was no definite material of contributory negligence, liability could not be fastened on a person as a joint tortfeasor. Similarly the Division Bench of the High Court of Madras in Kattabomman Transport Corporation Ltd. versus Vellai Duraichi and others, 2004 (2) T.A.C. 456 (Mad.), while dealing with a case where the scooter was being driven with two persons as pillion riders, held that merely violation of the provisions of the rules would not 8 automatically, in every case lead to inference of contributory negligence. This principle is not to be applied mechanically. In the instant case there is no evidence to even show that carrying of two persons as pillion riders had contributed to the occurrence of the accident. Hence the owner/driver of the scooter cannot be held liable at all. Record reveals that no steps were taken by the insurer to prove contributory negligence on the part of the driver of the scooter or to prove the violation of the material terms and conditions of the policy. In fact, except for tendering the insurance policy in evidence no other evidence was led by the insurer. Hence in this view of the matter the findings returned by the tribunal to the extent of contributory negligence are reversed and set aside. There is no dispute that the vehicle stood insured and that the driver was possessed with a valid and effective licence at the time of the accident. Hence the insurer is liable to indemnify the insured and pay the amount of compensation to the claimants. The Tribunal has awarded a sum of Rs. 1,97,200/- to the claimants. The monthly income of the deceased has been taken to be Rs. 4500/- and for the purpose of loss of dependency the amount taken is Rs. 3000/- per month. There is no challenge to these findings. However, what has been argued by Mr. Jagdish Thakur, learned counsel for the claimants is that keeping in view the recent decision of the Apex court in Sarla Verma (Smt) and others versus 9 Delhi Transport Corporation and another, (2009) 6 SCC 121 the multiplier needs to be enhanced. In the instant case, taking the age of the deceased to be 45 years the Tribunal has applied the multiplier of 13. Admittedly claimant No. 2 is the minor daughter of deceased and claimant No. 3 is the wife. At the time of the accident, claimant Smt. Vimla Devi was 37 years old and claimant No. 1 and 2 were minor. Hence the multiplier of 13 applied by the Tribunal needs to be corrected. In view of Sarla Verma (supra) instead of 13 the multiplier should be 14. The Tribunal has taken the income of the deceased to be Rs. 70/- per day. There cannot be any dispute about the same. However while making calculation there is a typographical error as instead of Rs. 2100/- the amount calculated is Rs. 2000/- per month whereas it should be the other way round. Hence income of the deceased is taken to be Rs. 2100/- per month which after deduction by 1/3rd, for the purposes of determining the loss of dependency comes to Rs. 1400/- per month. The claimants are thus entitled to a sum of Rs. 1400 X 12 X 14 = Rs. 2,35,200/- towards loss of income. In addition the Tribunal has awarded only Rs. 10,000/- as conventional damages which amount, considering the age and the circumstances in which the claimants were left to fend for themselves, needs to be enhanced. Hence instead of Rs. 10,000/- a 10 sum of Rs. 25,000/- is directed to paid to the claimants under all heads including conventional damages, loss of consortium and funeral charges. The impugned award is modified to the aforesaid extent. The appeal filed by the claimants is accepted and the appeal filed by the insurer is dismissed. (Sanjay Karol), Judge. November 11, 2009 (PK)