IMPORTANT POINT
In case of composite negligence both joint-feasors are liable to pay compensation jointly and severally.

JUDGMENT

ARUN MISHRA, J.

1. Leave granted.

2. The appeal has been preferred by the claimants aggrieved by the dismissal of their claim petition and setting aside award passed by the Motor Accidents Claims Tribunal, Sonepat on 5.8.2005 in Claim Petition No.217/2002/2004 by the High Court of Punjab & Haryana at Chandigarh vide judgment and order dated 4.9.2009 in FAO No.345/2007.

3. The claimants Kamlesh, widow of deceased Rishi Parkash, three minor sons and mother of the deceased filed a claim petition as against the driver, owner and insurer of Maruti Car No.DL4CC -5172 and driver of three-wheeler Tempo No.HRH-3572. The compensation of Rs.12 lakhs was prayed on account of the death of Rishi Parkash in the accident dated 8.5.2003 caused due to the collision between Maruti car and tempo. Maruti car was driven by Rajinder Singh whereas the tempo was driven by Attar Singh, respondent No.4. Deceased Rishi Parkash was travelling in the tempo towards village Naina Tatarpur. As per the claimant Attar Singh was driving the tempo on his right side at a normal speed in due observance of the traffic rules. When he reached about 1.5 km. from Barwashni towards Gohana, Maruti car came from the opposite side and struck the tempo inbetween near footstep as a result of which Rishi Parkash received injuries and succumbed to them on the way to the hospital. Postmortem was conducted. Respondent No.1 Rajinder filed an FIR No.77 under section 279-304-A IPC against Attar Singh. Deceased was aged 36 years and was working as a Supervisor in Emkay & Co. He was receiving a salary of Rs.4,500 per month. Maruti car was owned by Hukam Chand and insured with Oriental Insurance Co. Ltd.

4. The owner and driver of the Maruti car contended that the accident was the outcome of rash and negligent driving of Attar Singh, driver of the tempo. Police had found on due investigation that Attar Singh was negligent. Chargesheet was also filed against Attar Singh. The insurer in its separate written statement also contended that the accident was due to rash and negligent driving of Attar Singh, respondent No.4.

5. Attar Singh, respondent No.4, in his reply contended that Police had fabricated the case against him in collusion with Rajinder Singh, driver of the Maruti car. A criminal complaint has been filed by respondent No.4 against Rajinder Singh, driver of Maruti Car before the Additional Chief Judicial Magistrate, Sonepat for rash and negligent driving.

6. Claims Tribunal came to the conclusion that Ram Parshad, Claimant Witness PW-2 has admitted that after investigation Police has found Attar Singh to be negligent and he was chargesheeted. Attar Singh examined himself and his statement has not been relied upon mainly on the ground that as he has admitted that he was facing criminal trial. The Claims Tribunal found that Attar Singh driver of the tempo, was negligent, determined the quantum of compensation at Rs.5,81,000/-with interest at the rate of 6% per annum from the date of filing application, liability to pay the same has been fastened upon Attar Singh.

7. Aggrieved thereby Attar Singh preferred appeal before the High Court. The High Court on the ground that in the claim petition the negligence of Attar Singh has not been pleaded and the claimants have relied upon the evidence of Ram Parshad PW2 and Devender PW3 to prove the negligence of the driver of the Maruti car; whereas Rajinder driver of the Maruti car had lodged the first information report. As the claimants have not set up the case of negligence against Attar Singh. As such the High Court has allowed the appeal filed by Attar Singh driver of the tempo and has dismissed the claim petition. Aggrieved thereby the appeal has been preferred by the claimants.

8. We have heard learned counsel for the parties and perused, inter alia, the evidence on record of Ram Parshad PW2 and Devender PW.3. The method and manner in which the accident has taken place leaves no room for doubt that it was a case of composite n