MUNESHWAR SAI PAIKRA Vs. SARDAR SINGH BHATIYA

JUDGEMENT

(1.) THIS is claimant's appeal for enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Raigarh (for short, the Tribunal') vide awards dated 29.08.2003, passed in Claim Case No. 10 of 1999.

(2.) AS against the compensation of Rs.24,29,000/- claimed by the appellant/ Claimant, unfortunate husband of deceased Sunita Bai, by filing a claim petition under Section 166 of the Motor Vehicles Act, for her death in the motor accident on 14.07.1997, when the Bus bearing registration No. M.P. 26-C-5616 in which the deceased was travelling was dashed by the offending vehicle Truck bearing registration No. M.P. 26C-4631, resulting in her instantaneous death on the spot itself, the Tribunal though assessed the compensation at Rs.1,37,000/-, awarded only Rs.68,500/- to the claimants holding it to be a case of 'contributory negligence' wherein the drivers of both the vehicles i.e. Bus and the Truck equally contributed to the accident. Shri A.N. Bhakta, learned counsel for the appellant advanced a solitary submission that the Tribunal has erred in holding it to be a case of 'contributory negligence', whereas in fact, it was a case of 'composite negligence', and as such, the claimant was entitled to get the entire amount of compensation assessed by the Tribunal from the insurer of the Truck. Shri Sudhir Agrawal, learned counsel for respondent No.3 the New India Insurance Company Limited, on the other hand, supported the award and contended that the tribunal has rightly held it to be a case of 'contributory negligence'. Shri U.K.S. Chandel, learned counsel for respondents No.1 & 2 also supported the award.

(3.) IN view of the above quoted dictum of the Apex Court, in a case of 'composite negligence' the choice is with the claimant to claim compensation from both the tort-feasors or any one of them. Now reverting to the present case, if the claimant has chosen to claim compensation from the driver, owner and insurer of the Truck alone, without impleading the driver, owner and insurer of the Bus in the claim petition, the Tribunal could not have legally denied whole of the compensation to the claimant. The Tribunal apparently has fallen into error in holding it to be a case of 'contributory negligence' so far as the deceased is concerned and deducting 50% of the compensation assessed solely on the ground that the driver, owner and insurer of the Bus were not impleaded by the claimant. For the foregoing reasons, the appeal filed by the appellant/ claimant is allowed in part. While affirming the assessment of the compensation of Rs.1,37,000/- by the Tribunal, the claimant is held entitled to receive whole of the amount of compensation of Rs.1,37,000/- from the insurer of the Truck involved in the accident.