In cases of composite negligence, victims may recover full compensation from any joint tortfeasor. A package vehicle policy covers pillion passengers, and appellate courts must ensure just compensation based on standardized guidelines, regardless of the absence of cross-appeals by the claimants.

JUDGMENT :

NISHA M. THAKORE, J.

1. Heard Ms. Dimple A. Thaker learned advocate on record for the appellant-New India Assurance Company Ltd., Mr. Nishit A. Bhalodi learned advocate has appeared on behalf of respondent-original claimant and Mr. Jay M. Thakkar learned advocate has entered appearance on behalf of respondents No. 2 and 3.

2. The present appeal is filed at the instance of the original opponent No. 2-Insurance Company under Section 173 of the Motor Vehicles Act, 1988, (for short “the Act 1988 ”), being aggrieved and dissatisfied by the judgment dated 09.12.2014 and award dated 22.12.2014 passed by the Motor Accident Claims Tribunal, (Aux), at Gondal in M.A.C.P No. 487 of 2006. By the said judgment and award the Tribunal has partly allowed the claim petition preferred by the original claimants under Section 166 of the Act, 1988 holding them entitled to recover a sum of Rs. 5,85,500/-, towards compensation from the original opponents jointly and severally, with interest at the rate of 9% per annum from the date of filing of the claim petition till its actual realisation with proportionate costs.

3. Before adverting to the merits of the appeal, appropriate would be to consider the manner in which the accident was reported.

3.1. On fateful day on 28.12.2005, the deceased Dipeshbhai Jamanbhai was traveling as a pillion rider on Hero Honda Splendor Motor Cycle bearing registration MH-16X-854 which was driven by original opponent No.1. They were traveling from Puna road, Maharashtra and while they had reached near village Kamarganv opposite to Miles Stone Hotel, their vehicle was hit by unknown luxury bus. It was pleaded that the vehicles were driven in a rash and negligent manner and the luxury bus had approached from the wrong side and had hit the motorcycle and ran away. Due to the impact, the deceased had sustained fatal injuries and he had died on the spot. The heirs and legal representatives of the deceased which includes the wife of the deceased, their two minor children and the parents of the deceased, have preferred claim petition under Section 166 of the Act, 1988 praying for compensation of Rs. 8 lakhs with interest and cost from the original opponents which includes the driver of the motorcycle, the owner of the motorcycle and the Insurance Company.

4. Considering the pleadings, the summons were issued upon the original opponents before the Tribunal. Despite service of summons, the driver cum owner (opponent No.1) had chose not to enter appearance or to object to the claim petition. The original opponent No.2 Insurance Company had objected to the claim petition by submitting its written statement at Exh. 17. Apart from disputing the averments made in the claim petition, specific defense was raised by the Insurance Company, disputing the negligence of the driver of the motorcycle as well as holding of any valid driving license. It was also contended that in absence of the driver and the owner of the unknown luxury bus alleged to be involved in the accident as being not joined as party to the proceedings, the claim petition was not maintainable. It was contended that the accident had occurred due to sole negligence on the part of driver of the unknown luxury bus. By raising aforesaid grounds, the Insurance Company had disputed their liability to pay any amount of compensation. Considering the aforesaid pleadings, the Tribunal had framed issues at Exh. 23, which are reproduced as under :-

“1. Whether the accident was caused due to rash and negligent driving on the part of driver of MH-16X-854 as alleged?

2. What amount of compensation the applicant is entitled to and from whom?

3. What order and award?”

5. On the issue of negligence, the Tribunal had taken into consideration, the examination-in-chief affidavit of the wife of the deceased at Exh. 29 who had mainly reiterated the averments made in the claim petition in her cross-examination. The opponent Insurance company had failed to bring on record any contradictory facts o