Point of Law : It would not be appropriate for court/tribunal to determine extent of composite negligence of drivers of two vehicles in absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue other joint tort feasor in independent proceedings after passing of decree or award.

JUDGMENT :

1. Heard Shri Aditiya Singh Parihar, learned counsel for the claimants and Shri S.K. Mehrotra, learned counsel for the Insurance Company. None appears for owner or driver of the vehicle.

2. Both these appeals arise out of the same award/decree. The First Appeal From Order No. 3659 of 2018 is preferred by the original claimants for enhancement of compensation whereas First Appeal From Order No. 2679 of 2015 has been filed by the Insurance Company with which the vehicle was insured challenging the findings as far as fixing their liability, compensation granted and on ground of contributory negligence of deceased.

3. Brief facts as culled out from the record are that in the night of 29/30.05.2011 Haridas Gautam, Vijay Gautam and Pankaj Kumar Sharma were returning to their home from Lucknow in a Maruti WagonR car bearing registration no. U.P-51/N-6061 which according to the petitioner was driven by respondent no. 3-Shiv Shankar @ Pappu. On 30.05.2011 at 4:00 a.m. when they reached ahead of petrol pump of village Rithiya on Lucknow Main Road driver Shiv Shankar @ Pappu was driving the car rashly and negligently when he saw a vehicle coming from opposite side and with presumption that his car can collide with the coming vehicle he moved his car to very left of his side due to which the car collided with the railing of the road side culvert as a result of which Haridas Gautam and Vijay Gautam sustained several injuries on the other hand Pankaj Kumar Sharma and driver Shiv Shankar @ Pappu sustained minor injuries. Haridas Gautam and Vijay Gautam were taken to the District Hospital for treatment where Haridas Gautam succumbed to his injuries and Vijay Gautam was treated for his injuries.

4. It is an admitted fact that the claimants are legal representative of the deceased. The deceased was 53 years of age at the time of accident. He was working as a Chief Pharmacist in District Women Hospital, Basti. He was survived by his wife, two minor sons and two major daughters. The Tribunal considered his income to be Rs.26,900/- p.a, deducted 1/4th towards personal expenses of the deceased, granted multiplier of 9 and granted Rs.1,00,000/- towards compensation for loss of consortium, granted Rs.10,000/- towards for loss of estate, granted Rs.10,000/- towards funeral expenses and ultimately assessed the total compensation to be Rs.22,98,900/-.

5. Shri Aditya Singh Parihar, learned counsel for the claimants-appellants has submitted that the tribunal has deducted 20% by way of income tax and other emoluments which is not in consonance with the judgment of Vimal Kanwar and Others Versus Kishore Dan and others ( 2013) 7 SCC 476. Learned counsel has submitted that tribunal has granted multiplier of 9 in-place of 11 which is required to be granted as per the judgement of Sarla Verma Vs. D.T.C., AIR 2009 SC 3104. It is submitted that no amount under loss of future prospect is granted relying on decision of Sarla Verma (supra) as deceased was above 50 years of age.

6. As both the appeals raise different issues we will be obliged to decide all the issues raised in both the appeals as per the judgment of the Apex Court in the case of U.P.S.R.T.C. Vs. Km. Mamta and Others, AIR 2016 SC 948. The issues which are raised by the Insurance Company are enumerated as follows:-

(a) The award and decree is bad as it was Vijay Gautam who was driving the vehicle and not Shiv Shankar @ Pappu;

(b) That there is a delay of about 26 months in lodging the F.I.R. and about two and half years delay in filing the claim petition;

(c) That there is no finding to the fact that accident in question occurred due to rash and negligent driving of the driver of Maruti Car and who is liable to pay the claimants;

(d) That the compensation awarded towards consortium and other heads is on the higher side;

(e) The claimants have also challenge quantum of compensation.

Issue (a) and (c)