The main legal point established in the judgment is that in case of composite negligence, the claimants are entitled to sue any one of the joint tort-feasors as the liability of the joint tort-feasors is joint and several.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. No one turns up on behalf of the respondent no. 1 inspite of repeated calls. Hence, this appeal is heard ex-parte against the respondent no. 1.

3. This miscellaneous appeal is directed against the judgment and award dated 28.02.2019 passed by the learned District Judge-cum-Motor Vehicles Accident Claims Tribunal, Hazaribagh in Motor Accident Claim Case No. 09 of 2014 by which the learned Tribunal under Section 166 of Motor Vehicle Act has awarded a compensation of Rs. 3,32,500/- to the claimants-appellants along with interest thereon at the rate of 6% per annum.

4. The brief facts of the case is that on 12.04.2013 when the deceased Binay Kumar Singh along with others was travelling in a Scorpio vehicle, the said vehicle was dashed by a Hywa vehicle as a result of which the deceased received severe injuries and died in course of his treatment. In connection with the said accident, an FIR has been registered bearing no. 29 of 2013 for the offences punishable under Sections 279/304A of Indian Penal Code.

5. In his written statement, the owner of the Scorpio vehicle challenged the maintainability of the claim petition on various technical grounds and further pleaded that the vehicle was insured by the opposite party no. 2-insurance company, being Royal Sundaram Alliance Insurance Company Limited, hence, the insurance company is to pay the compensation amount if any to be awarded.

6. The insurance company in its written statement also challenged the maintainability of the claim petition and pleaded that the Hywa vehicle was at fault and not the driver of the Scorpio vehicle and the police submitted charge sheet only against the Hywa vehicle, hence, the insurer of the Hywa vehicle is liable to pay the compensation. It is then pleaded that the owner of the vehicle did not take insurance cover for the passengers of the said vehicle and as the deceased was not the 3rd party and the insurance was only for a 3rd party liability, therefore, the insurance company is not liable to pay the compensation and the claim application is not maintainable and thus fit to be dismissed.

7. On the basis of the rival pleadings of the parties, the learned Tribunal framed the following three issues which reads as under:

“(I) Whether an accident occurred on 12.04.2013 at about 08:40 PM at Village-Heth Nagar, P.S. Nimiaghat, District-Giridih due to rash and negligent driving of the driver of Scorpio bearing No. JH-05AP-7700 resulting in the death of deceased Binay Kumar Singh?

(II) Whether the claimants are entitled to any compensation amount, if so, from whom and to what extent?

(III) Whether the claimants are entitled to any interest, if so, at what rate?”

8. The learned Tribunal considered the oral testimony of four witnesses examined by the claimants and the documents which have been marked as Ext.1 and 2 as well as the documents which have been marked X to X/7.

9. The learned Tribunal first took up issue no. (I) and after considering the evidence in the record including the depositions of CW-1/Premlata Devi who is the wife of the deceased wherein she has stated that her husband was a driver and he used to earn Rs. 10,000/- per month. She however, in her cross-examination has stated that she has not seen the accident and at the time of accident one Subodh Kumar Singh-who is a different person than the deceased was driving the Scorpio vehicle. She further stated that truck-Hywa dashed the Scorpio vehicle and she has not made the owner of the truck a party to the claim application. CW-2/Rajesh Kumar Singh is the employer of the deceased. He has stated that Bijay Kumar Singh was his driver. He has further stated that Bijay Kumar Singh got injured on motor vehicle accident and died on 13.04.2013 in course of his treatment. CW-3/Manoj Bharti is an eyewitness to the occurrence. He has deposed that on 12.04.2013 he saw that the Scorpio vehicle met with an accident causing injuries to the occupants of the said veh