The judgment establishes the principle of joint and several liability in cases of composite negligence, and clarifies the inapplicability of compassionate appointment benefits in compensation claims.

(Satyendra Singh Chauhan, J.)

This appeal has been filed against the judgment and award dated 21.10.2008, awarding a compensation of Rs.40,09,133/- alongwith interest @ 7.5% per annum from the date of petition i.e. 06.02.2007 till payment, failing which, the insurance company has been directed to pay penal interest @ 9% per annum.

2. The facts, in short, are that the deceased, aged about 39 years, who was a Textile Engineer and posted as Marketing Manager in Reliance Industries Ltd. At Gurgaon, Haryana, was travelling in a Hyundai Santro Car on 25.06.2005 bearing Registration no.UP-58/A-3600. The car was being driven by the driver Sarveshwar Tripathi and one employee of his company, namely, Sharad Nigam was also travelling alongwith him in the said car. At about 11: 30 p.m., when the car was on Faizabad-Barabanki road at village Udhauli near Hotmix plant, a fallen tree was obstructing the road and driver of the car moved towards right on a narrow strip of the road in a rash and negligent manner, but in his attempt, he failed and collided head-on with a rashly driven truck. In the accident, severe injuries were sustained by the driver and two riders of the car, in which, the deceased Shyama Pal and driver Sarveshwar Tripathi succumbed to their injuries on the spot. The injured person, namely, Sharad Nigam lodged an FIR, which was registered as Case Crime no.129/2005 under Sections 279, 337, 338 and 304-A IPC at Police Station- Safdarganj, District Barabanki.

3. During the course of investigation, the truck owner and the driver could not be traced out and so the police submitted a final report under Section 173 Cr.P.C. The claimants claimed compensation under various heads. Thereafter, the respondent no.1 being the owner of the car, admitted the factum of accident and also the death of the deceased and the driver of the offending car.

4. Respondent no.2 has contested the case and denied the accident. In Para-31 of the written statement, it has been alleged that the accident had not taken place on account of negligence of the driver of Hyundai Santro Car bearing Registration No.UP-58/A-3600, but pleaded composite negligence of the car and the truck. It was further alleged that the deceased was illegal occupant of a private car and the insurance company is not liable for his death in an accident while travelling in that car.

5. In all, six issues were framed by the Tribunal and after appreciating the evidence on record, the Tribunal came to the conclusion that the evidence on record went to establish that there was negligence of the driver, who was driving the car rashly and negligently and in spite of instructions given by Sharad Nigam, he did not pay any attention and met with an accident. PW-2 and PW-3 have stated about negligence of the driver driving the Hyundai Santro Car, and in these circumstances, the Tribunal after considering the evidence in the form of FIR, site plan, technical examination report, final report, inquest report, postmortem report and other certificates in the form of salary certificates, photocopies of passport, three mark-sheets, one admit card, death certificate, Income tax Form-16, private car insurance 'B' policy format and C.T.C. statement, proceeded to hold that the driver of the car was driving negligently, on account of which, death occurred and hence the insurance company is liable to pay compensation.

6. Before this Court, learned counsel for the appellant has submitted that the respondents cannot turn around from their admission initially that the truck driver was driving rashly and negligently and thereafter turn around and say that the driver of the car was negligent. Learned counsel for the appellant has placed reliance upon a judgment of the apex court in the case of Oriental Insurance Company Ltd. vs. Premlata Shukla and others, 2007(3) T.A.C. 11 (S.C.). He further submits that the fact whether the car driver was driving the car in a rash and negligent manner, is not established on