In composite negligence cases, liability is joint and several, allowing claimants to recover full damages from any tortfeasor, and future prospects must be considered in compensation calculations.

ORDER :

Gautam Kumar Choudhary, J.

1. The Claimant is in appeal for enhancement of compensation awarded in Compensation Case No. 224/2003, whereby and whereunder Rs. 2,44,500/- with interest @ 6% per annum has been awarded under Section 166 of the Motor Vehicle Act for the death of her young unmarried son namely, Naushad Ansari aged about 18 years.

2. It is argued by learned counsel appearing on behalf of the appellant that the deceased was working as a Garage Mechanic in Ma Tarni Body Builders with a monthly income of Rs. 3,000/-, but the learned Tribunal has accepted only Rs. 2,000/- as the monthly income. Compensation has not been computed loss of income due to future prospect and the compensation under the conventional head is not as per ratio laid down in National Insurance Company Limited vs. Pranay Sethi, reported in (2017) 16 SCC 680. Further, the multiplier has been taken as per the age of the parents and not as per the age of the deceased which should have been 18, in view of ratio laid down by the Hon’ble Apex Court in Sarla Verma (Smt.) & Ors Vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121

3. It is further argued that the Tribunal recorded a finding of contributory negligence of both the vehicles i.e. driver of Tempo bearing registration No. JH-01E-4251 to the extent of 25%, in which the deceased was travelling and that of the truck bearing registration No. BR-V-6563 to the extent of 75% and further directed the insurer of the tempo to pay 25% of the compensation amount. As the truck was not insured at the time of accident, the owner was directed to pay 75% of the compensation amount to the claimant. It is argued by the learned counsel that the law has been settled on this point in (2015) 9 SCC 273 (Khenyei Vrs. New India Assurance Co. Ltd. & Ors.) (para 4) wherein it has been held that in cases of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors, all the persons who aid the wrongful act are liable. In such cases, the liability is always joint and several. It was held that apportionment of compensation between two tort feasors vis a vis the plaintiff claimant was not permissible, as the claimant had an option to recover the whole damages of any of them. By relying on the authority, it is argued that the Tribunal had committed an error to direct the claimant to receive the compensation amount from the owner of the vehicle, instead the insurer of the Tempo should have been saddled with liability to pay the amount and recover the same from the owner of the truck.

4. It is argued by Mr. Alok Lal, learned counsel appearing on behalf of the Insurance Company, that it is a fundamental principle of liability under Section 147 of the Motor Vehicle Act that only the insurer can be held liable to pay the compensation amount. In the present case, the truck, which has been fastened with liability of causing accident by 75%, was not insured and, therefore, the insurer of the Tempo cannot be made liable. Further, the owner of the truck was impleaded as a party as O.P. No.3 and, therefore, there is no error on the part of the Tribunal in fixing liability on O.P. No.3. Further, the claimant is the mother of the deceased, who was unmarried at the time of accident, therefore, living expenses should have been deducted by 50% and not 1/ 3^rd as has been done by the Tribunal.

5. Having considered the submissions advanced on behalf of both sides, this Court is of the view that there is no material to interfere with the finding of fact on the monthly income of the deceased of Rs. 2,000/- at the time of accident. Taking Rs. 2,000/- as the monthly income, age 18 years of the deceased at the time of accident and 50% as the personal living expenses and 40% as the income under the head of future prospect. The final compensation is as under: