Accident-Claimant was one of the tort feasor-In such cases the share which the tort feasor may otherwise have in the compensation amount would have to be deducted-Claim not to be dismissed.

Mr. Ajay Tewari, J. (Oral):- This appeal has been filed against the award of compensation to respondent No.1-claimant. The Tribunal took the monthly income of the deceased as Rs.15,312/- and after deducting half thereof towards personal needs the annual dependency was fixed at Rs.91,872/-. The deceased was 55 years of age, therefore, multiplier of 11 was applied and the total amount was assessed at Rs.10,10,592/-. An additional sum of Rs.10,000/- was awarded towards funeral expenses. In total a sum of Rs.10,20,592/- was awarded alongwith interest @ 7.50% per annum from the date of filing of the petition till its realization. All the respondents were jointly and severally liable to compensate the claims. 50% of the compensation was ordered to be paid in cash to the claimant while the remaining amount was ordered to be deposited in FDR.

2. The brief facts are that the deceased was travelling as a pillion rider on a motorcycle driven and owned by his son, Sri Pal-respondent No.2 and he died as a result of an accident caused by the rash and negligent driving of the respondent No.2 and unknown vehicle.

3. The first argument of learned counsel for the appellant is that the claim petition itself was not maintainable since the death was caused as a result of the negligence of one of the legal representatives itself. In this connection he has relied upon the case in the matter of New India Assurance Co. Ltd. Vs. Dr. Sandeep Dhar and others, CIMA No.219-1998 decided on 03.09.2007 passed by the Ld. Single Judge of Jammu and Kashmir High Court, wherein it has been held as follows :-

“21. In view of the legal position, the claim petition has to be entertained on behalf of all the legal representatives of the deceased, who are entitled for compensation under the Act. Where all the legal representatives of the deceased have not joined, then the petition can be made on behalf of any of the legal representatives of the deceased by impleading those legal representatives who have not joined in filing the claim petition, as respondents. But the claim petition will be deemed to have been filed on behalf of all the legal representatives. In case one of the legal representatives is debarred to claim compensation because the death of the deceased has occurred due to his act, then all the legal representatives are not entitled to claim the compensation under Section 166 of the Act because it is the mandate of law that the petition can only be filed by all the legal representatives and either they will have to be impleaded as claimants or proforma respondents but it will be for the benefit of all the legal representatives.”

4. Learned counsel for the appellant has further argued that in the alternative that even if it is held that the petition is maintainable yet out of the total compensation which has to be awarded that amount which falls to the share of the tort-feasor would have to be deducted, more so since the appellant-Insurance Company under the contract of Insurance has to indemnify the owner (in this case the tort-feasor) himself and if this award is allowed the stand of the appellant-insurance company would end up enriching the tort-feasor for his own action because even his share of the compensation would ultimately be paid by the insurer. Further in view of the provisions of Section 166 of the Act one of the several decree holders would be the principle judgment debter.

5. Learned counsel for the respondent No.1 has however countered by relying upon the decision of a Division Bench of the Kerala High Court in New India Assurance Company Limited Vs. Ayisha, 2011 (3) KLT 319 wherein it was held as follows :-

“4. The legal question that has been raised by the appellant Insurance Company is rather novel. It is contended by the appellant that the father of the two victims being the tort feasor himself, and he also being one of the legal representatives of the deceased victims, the tribunal ought to have deducted his share from the amount