SHAHAJADI BI Vs. ANWAR KHAN

JUDGEMENT

(1.) THIS order shall also govern disposal of M.A. Nos. 3345, 3346, 3348, 3.149 and 3352 of 2009 and 292 of 2010 as all these appeals are arising out of an award dated 31.8.2009 passed by 17th M.A.C.T., Indore, in Claim Case Nos. 24, 25, 26, 27, 196 and 199 of 2008. In all these appeals, the claimants are different and the appeals arose out of one accident. Status of all the appeals are as under: <IMG>JUDGEMENT_1869_ACJ_2012image1.jpg</IMG>

(2.) M .A. No. 292 of 2010 is the appeal filed by respondent Nos. 4 and 5 against the award in Claim Case No. 24 of 2008, whereby claim petition filed by the appellant has been allowed and respondent Nos. 4 and 5 have been directed to pay a sum of Rs.2,90,000 on account of death of Sattar and respondent Nos. 1 to 3 have been exonerated while M.A. No. 3351 of 2009 is also the appeal against the same award filed by the appellants for enhancement of amount of compensation and for quashment of the findings relating to exoneration of respondent Nos. 1 to 3 and the rest of the appeals are filed by the appellants claimants, who are injured.

(3.) LEARNED counsel for the appellants submits that the accident is of the year 2007 The income of the deceased assessed by the learned Tribunal is on lower side, the deduction of 73rd towards personal expenses is on higher side, the amount awarded on other heads is also on lower side. Learned counsel submits that since in M.A. Nos. 3351 and 3352 of 2009, claim petitions were filed under section 163-A of the Motor Vehicles Act wherein negligence of the driver is not required to be examined and on account of no fault liability claimants are entitled for compensation but in spite of that learned Tribunal illegally examined the fault and held that no compensation can be awarded from respondent Nos. 1 to 3 in M.A. No. 3352 of 2009 which was the claim petition filed by Shahajad Bi on account of injuries. Learned counsel further submitted that criminal case was registered against respondent No. 2, who was the driver of the offending truck. The claimants in all the claim petitions were eyewitnesses of the accident who were examined and narrated that in what circumstances the accident took place. Respondent No. 2 did not contest the case and no effort was made by the respondent No. 3 to examine the respondent No. 2. It is submitted that even if it is assumed for the sake of argument that the accident occurred on account of contributory negligence of the respondent No. 5, then too, the claim petition could not have been dismissed as the appellants in all the claim petitions were third party and it was the case of joint tortfeasors. Learned counsel placed reliance on a decision in the matter of T.O. Anthony v. Karvarnan, 2008 ACJ 1 165 (SC), wherein the Hon'ble Supreme Court has observed that where a person is injured as a result of negligence of two or more wrongdoers, each wrongdoer is jointly and severally liable to the injured for payment of entire damages and the injured has the choice of proceeding against all or any of them. It is submitted that in the facts and circumstances of the case, claim petition filed by the claimants could not have been dismissed on the ground that the claimants have not included respondent Nos. 4 and 5, owner and driver of the offending Qualis car, as party to the proceedings. Learned counsel further submitted that in the facts and circumstances of the case, appeal filed by appellant be allowed and the impugned award passed by the learned Tribunal be set aside and the impugned award passed in M.A. No. 3351 of 2009 whereby respondent Nos. 1 to 3 were exonerated be set aside and the amount be enhanced and in other appeals the award whereby the claim petitions have been dismissed be set aside and an adequate amount of compensation be awarded.