SUDESH SHARMA Vs. VINOD KUMAR

JUDGEMENT

(1.) THE appeal is for enhancement of compensation for death of a male aged 30 years and the accident took place on 05.12.1999. He was said to be running a tent house earning Rs. 15000/ - per month. The claimants were widow and three children, one of whom had just become major and mother. The Tribunal took the income at Rs. 2500/ - per month and assessed a compensation of Rs. 3,00,000/ - but made a partial abatement of a claim on the ground that yet another vehicle must have been involved in the accident and the insured's vehicle in which the deceased was travelling could be attributed only to 50% negligence.

(2.) THE entire reasoning of the Tribunal is erroneous. It was admittedly a case where the deceased was travelling in three wheeler auto rickshaw. The vehicle had capsized and there was death of one person and serious injury who gave rise to the claim. The contention was that the driver of the auto rickshaw in which the deceased and the claimant was travelling was being driven rashly and when he applied a sudden brake, the vehicle capsized resulting in death and injury. It was elicited in the cross -examination of the witness that the driver had applied sudden brake on account of the fact that there was yet another vehicle which was going in front suddenly had applied brake and in order to avoid the collision, the driver of the auto rickshaw had applied brake. This was taken by the Tribunal as sufficient to state that yet another vehicle must also take equal portion of blame. Even if there was yet another vehicle as far as the deceased and the claimant was concerned, it was a case of composite negligence and no portion of the claim could abate for a claim against one of the joint tort feasors. The Tribunal omitted to note that yet another auto rickshaw was not even made a party. It should have only, therefore, given a liberty to the auto rickshaw driver and owner to suffer the liability and make possible a claim for contribution if the identity of ownership of other auto rickshaw was known. In the absence of such particulars, the determination of compensation made and making the driver and owner of the auto rickshaw to be liable only for 50% was legally untenable and erroneous.

(3.) THE total compensation payable shall be Rs. 8,70,000/ -. The amount in excess over what has already been awarded by the Tribunal shall also attract interest @7.5% from the date of petition till the date of payment. The liability shall be on the insurance company. The entitlement shall be distributed amongst the widow, children and mother in such a way that the widow and children must take as much as twice as of mother's share.