IMPORTANT POINT
In cases of composite negligence, claimants can recover full compensation from any joint tortfeasor, and deductions must be based on clear evidence of negligence.

JUDGMENT :

MAULIK J.SHELAT, J.

1. The Present appeal is filed under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as ‘the MV Act’) by the original claimants against judgment and award dated 03.07.2010 passed by the Motor Accident Claims Tribunal (Auxiliary) and 1st Fast Track Court, Mahesana in Motor Accident Claim Petition (MACP) No.758 of 2008.

2. Short facts.

2.1 On 21.10.2008 at about 3:30 pm, near railway crossing on Thol Road, Kadi, deceased Mukeshbhai Patel was trying to mount tractor, at that time one dumper bearing registration No.GJ-3-W-7277 came in rash and negligent manner and dashed with tractor. Thereby deceased Mukeshbahi sustained injuries and succumbed to it. The legal heirs of deceased had filed claim petition, claiming compensation of Rs.25,00,000/- from owner and insurance company of dumper involved in the accident.

2.2 The owner of the dumper though appeared through his advocate chosen not to file any written statement whereas opponent No.2 – insurance company had filed its written statement at Exh.50. Thereby, dispute the claim of original claimants.

2.3 After appreciating evidence on record, tribunal has found both the drivers equally negligent for causing the accident.

2.4 So far as compensation is concerned, tribunal has assumed income of the deceased Rs.1,50,000/- including his prospective income as deceased was having ownership of land, six trucks / tractors. Thereby, awarded compensation of Rs.15,30,000/-. Nonetheless, as claimants have not joined driver and owner of tractor and not given true and correct facts of happening of accident, 50% amount out of total compensation is deducted. So in fact, tribunal has awarded a sum of Rs.7,65,000/- as total compensation to the original claimants with 7.5% interest thereon from the date of petition till realization.

2.5 Being aggrieved by the non-granting adequate compensation and deducting 50% of compensation amount, on wrong premise, present appeal is filed by the claimants challenging impugned judgment and award.

3. Submissions of appellant.

3.1 Mr. Tejas Satta with Mr. Jayesh Patel, learned advocates appearing for original claimants would submit that when the deceased was not found negligent for causing accident then tribunal has erroneously deducted 50% of compensation on completely wrong premise, which is contrary to settled legal position. He would submit that it is the case of composite negligent for the claimants. Thereby, they can recover total compensation from any of the tortfesser.

3.2 In support of his submission, he would rely upon a decision of full bench of Honourable Apex Court in case of Khenyei vs. New India Assurance Co. Ltd. Reported in 2015 (9) SCC 273. He would further submit that claimants are entitled to receive entire compensation from owner and insurance company of dumper. According to his submission, tribunal has committed serious error in deducting 50% amount from the total compensation. He would further submit that there were Four dependents of the deceased at the time of accident who are claimants of claim petition, then as per the decision of the Hon’ble Apex Court in case of Sarla Varma & Ors. vs. Delhi Transport Corporation & Ors. reported in 2009 (6) SCC 121, 1/4th personal expenses ought to have deducted instead of 1/3rd by the tribunal. Lastly, he would request to allow this appeal.

4. Submissions of respondents

4.1 Learned advocate for the insurance company would submit that there is no error committed by the tribunal while deducting 50% amount of total compensation as claimant has not joined driver, owner and insurance company of the tractor and also not come with clean hands by narrating true and correct facts of the accident.

4.2 He would fairly concede that as per the decision of Honourable Supreme Court in case of Kheneyi (supra) held that in a case of composite negligence, claimant can recover entire compensation from any of the tort feasor.

4.3 Nonetheless, he would submit that present case is not fall und