JUDGMENT :

KAUSHAL JAYENDRA THAKER, J.

1. This matter was heard on 11.2.2019 and was allowed. However, while going through the record it was not clear whether the deceased was a non tort feasor or was the driver of the jeep as the Tribunal had deducted 25% from the total awardable amount, therefore, matter was kept for today i.e. 15.2.2019 for further hearing.

2. Heard Sri Rishi Bhushan Jauhari, Advocate holding brief for Sri B.B.Jauhari, learned counsel for the appellant and Sri Radhey Shyam, learned counsel for the respondent. Sri M.P.S. Chauhan, learned counsel for the respondent has absented himself even today.

3. This appeal, at the behest of the claimants, has been preferred against the judgment and order dated 21.10.2004 passed by Additional District Judge/Motor Accident Claims Tribunal, Court No.6, Shahjahanpur (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 49 of 2004 awarding a sum of Rs.6,96,880/-with interest at rate of 6% as compensation in favour of the claimants. In fact the Tribunal had awarded a sum of Rs.9,15,840/-and has deducted 25% holding that the claimants would not be entitled to 25% of awarded amount from the total compensation. The reasoned assigned is that the driver of the jeep according to the Tribunal contributed to the tune of 25% as there was head on collision. However, the said finding is not recorded in the issue where negligence has been decided but is reflected in the issue where compensation is fixed. This is also a ground of challenge.

4. Detailed facts are not narrated as the matter can be disposed of as the issue regarding negligence and the justness of compensation granted by the Tribunal is under challenge and the request is that the issue of negligence be reevaluated and the compensation awarded be enhanced as per the prevailing judgments of the Apex Court for motor accident claims cases pertaining to death of a person namely Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050.

5. As against this Sri Radhey Shyam, counsel for the respondent-Insurance Company has submitted that the matter does not require reconsideration as the driver of the jeep has been found to be negligent and he has not been made a party. The compensation awarded is just and proper. The rate of interest is also just and proper. On a query by this Court as to how the Tribunal could deduct the amount of 25%, it is submitted by Sri Radhey Shyam that 25% can be ordered to be recovered from the owner.

6. Learned counsel for the respondent-Insurance Company could not point out that this was a case of contributory negligence but it was pointed out to him that it was a case of composite negligence qua the deceased and, therefore, this Court can order recovery from it but as the issue of negligence is a ground raised in the memo of appeal and argued, this Court in view of the decisions of the Apex Court in Sudarsan Puhan Versus Jayanta Ku Mohanty and Another Etc. AIR 2018 SC 4662 and U.P.S.R.T.C. Vs. Km Mamta and Others AIR 2016 SCC 948, wherein it has been held that that all the issues raised will have to be decided and hence, a fresh question is formulated as till date there are no decision on the said point namely at the outset, whether the appellate court in a appeal preferred by the heirs of the claimant can decide on the issue of negligence, even if it is a case of composite negligence, if the finding of fact is not supported by reasons in the judgment of the Tribunal, this Court can and this issue arose because of the ground taken by the appellant in appeal and the driver of the jeep in which the deceased Army men was travelling has deposed on oath as P.W.2

7. The subject of negligence will have to be dealt with as according to this Court as far as the deceased is concerned, the Insurance Company will have to be given recovery rights from the owner and the Insurance Company of the other tort feasor though the other