YASHVIR SINGH RATHOR. J.(Oral)

1. This appeal has been instituted against the Award dated 18.02.2003 for enhancement of compensation awarded in MACT case No.20 of 2001 decided by the Motor Accident Claims Tribunal, Rohtak (for short “Tribunal”) in a petition under Section 166 of Motor Vehicles Act, 1988, vide which a sum of Rs.6,59,800/- has been assessed as compensation to the claimants alongwith interest at the rate of 9% per annum from the date of filing of claim petition till realization on account of death of Satbir Singh in a motor vehicular accident which allegedly took place due to rash and negligent driving by respondent No.1 while driving offending truck bearing No.HR-46-C-0126 (for short ‘offending vehicle’), owned by respondent No.2, which was insured with respondent No.3. However, the Tribunal had come to the conclusion that it was a case of contributory negligence and out of the total compensation of Rs.6,59,800/- as assessed by the Tribunal, only 50% of the amount was ordered to be paid to the claimants.

2. From the pleadings of parties, following issues were framed by the learned Tribunal:-

1. Whether respondent no.1 has driven truck No.HR-46C 0126 rashly and negligently on 20.07.2001 in the area of village Ghillor Kalan Distt. Rohtak and caused the accident causing death of Satbir Singh? OPP

2. Whether the petitioners, being the legal heirs and representatives of the deceased, are entitled to any compensation from the respondent. If so, to what amount and from whom? OPP

3. Whether respondent no.1 was not holding a valid and effective driving licence and that the respondents no.1 & 2 have breached any terms and conditions of the insurance policy, as alleged. If so, to what effect? OPR-3.

4. Relief.

3. Thereafter, the parties led evidence in support of their case.

4. After hearing the parties and on going through the material on the file, learned Tribunal assessed a sum of Rs.6,59,800/- as compensation to the claimants, on account of death of Satbir Singh alongwith interest at the rate of 9% per annum from the date of filing of claim petition till realization, payable by respondents No.1 to 3, jointly and severally. However, the Tribunal came to the conclusion that it was a case of contributory negligence and out of the total compensation of Rs.6,59,800/- as assessed by the Tribunal, only 50% of the amount was ordered to be paid to the claimants.

5. Feeling aggrieved, the appeal in hand has been preferred. The material on file has been perused and parties have been heard.

6. It is pertinent to mention that the record of the present appeal and the Tribunal has got burnt in a fire incident in the High Court Registry and the present appeal has to be decided on the basis of the facts and evidence discussed by the Tribunal in the impugned award.

7. Learned counsel for the appellants argued that the Tribunal has held the driver of the offending vehicle as well as the vehicle in which deceased was travelling, to be rash and negligent while driving their respective vehicles and after holding that the vehicle in which deceased was travelling has also contributed to the accident, 50% of the amount has been deducted out of the compensation assessed by the Tribunal which is against law. Learned counsel contends that the deceased was a third party and in the case of joint tort feasors, it is open to the claimants to recover the entire compensation from one of the joint tort feasors and the claimants can sue both the joint tort feasors or any of the joint tort feasors and to recover the entire compensation as the liability of joint tort feasors is joint and several. In support of his contention, learned counsel has cited Law Finder Doc ID #669171,”Khenyei Vs. New India Assurance Co. Ltd. and others”.

8. Learned counsel next contended that income of the deceased has been assessed on lower side as deceased was village Sarpanch, an agriculturist and was also running a diary. He was also doing prope