Punjab-Haryana High Court
Bhajan Lal Bishnoi vs Rajasthan State Transport Corporation on 16 January, 1991
Equivalent citations: 1991ACJ651, (1991)99PLR561
JUDGMENT R.S. Mongia, J.
1. This judgment of ours will dispose of L P.A. No. 677, 673, o74, 675, 676, and 879 of 1986.
2. Briefly, the facts of the case are that on 8th September, 1982, at about 4 P M on the G T. Road near village Knara Kheri, an accident took place between a jeep (PUG 8240) driven by one Ram Chander and a bus belonging to the Rajasthan Slate Road Transport Corporation (hereinaffer called the Corporation), bearing Registration No RRB 7291, driven by one Nand Rara There were seven occupants in the jeep, out of whom four died and three received injuries. The legal-representatives of the deceased and the injured filed separate claim petitions under the Motor Vehicles Act before the Motor Accident Claims Tribunal. It may be highlighted here that in none of the claim petitions, the driver of the owner of she jeep involved in the accident was made party Only the Corporation, which owned the bus, was made a party. One of the injured, namely, Chander Pal claimed only Rs. 10,000/- as compensation; while in each of the other claim petitions, Rs, 40,000/- were claimed as compensation. The entire blame of the accident was sought to be placed on the driver of the jeep by the Corporation. On the contest of the parties, the following issues were framed :-
1. Whether the claimant has no locus standi to file the petition ?
2. Whether the petition is bad for non joindor of necessary parties namely driver and owner of jeep ?
3. Whether the accident was caused by the negligence of the driver of the jeep No. PUG 8240 or the driver of the Bus No RRB 7291?
4. To what amount of compensation the petitioner is entitled to and from whom ?
5. Relief.
3. On the evidence led in the case, the Motor Accident Claims Tribunal came to the conclusion that the driver of trie jeep and the driver of the bus were both negligent and their contributory negligence was fifty-fifty Since the owner and the driver of the jeep were not made parties, 50 per cent of compensation found due was awarded against the Corporation by a common award dated 30 April, 1984. Against the aforesaid award, F. A. Os Nos 754 and 851 to 856. of 1984 were filed by !he Corporation in which Cross objections were filed by the claimants.
4. ln F. A. O. 754 of 1984, it was found that deceased was 20 years old and was helping his father in cultivation His dependency was found to be Rs. 4,00'J/- per year and after applying multiplier of 20 years, it was held that the father was entitled to compensation of Rs. 80,000/-, but since liability of Corporation was 50 per sent, the award of Rs. 40,000/- was made against it. Similarly,-in F . O. N. 886 of 1984, award of Rs. 30,000/- had been given against the Corporation after finding that on the death of the wife of the claim in, aged 23 years, Rs. 60,000/- were payable as compensation as she was helping her husband in cultivation. The award against the Corporation was restricted to Rs. 30.000/-, as the liability of the Corporation was 50 per cent In F A. O 854 of 1984, the husband of the deceased aged 35 years, who was helping him In cultivation, was found entitled to Rs. 48,00/- as compensation and since the liability of Corporation was 50 per cent, Rs. 24,000/- were award. In F. A. O. N. 852 of 1984, the deceased being 40 years of age, the dependency was found to be Rs. 36,000/- at the rate of Rs. 300/- per month, by applying multiplier of 10. The claimant was awarded Rs. 18,000/- on account of the corporation's liability being 50%.
5. It may be observed that if in F A. Os. No. 852, 854 and 856 of 198', applications under Order 6, Rule 17 of the Code of Civil Procedure were filed by the claimants who sought enhancement of tin compensation than claimed in the original claim petitions (which was restricted to Rs. 40.000/), on the ground that at the relevant time advalorem court-fee was payable and since the claimants were not in a position to pay the court-fee, full amount was not claimed made later on amendment had been made for payable less court-fee, enhanced compensation was claimed. These applications were ordered to be heard with the appeals, but were dismissed along with the appeals and the cross-objections.
6. Dissatisfied with the judgment of the learned single Judge, the claimants have filed the above Letters Patent Appeals.
7. Mr. U D. Gaur, Senior Advocate, learned counsel for the appellants, has argued that the Tribunal as well as the learned Single Judge were in error in confining the amount of compensation to 50 per cent against the Corporation, inasmuch as the entire amount of compensation which had been awarded, was realisable from the Co According to the learned counsel, the driver of the Corpo- ration as well as the driver of the jeep were joint tort feasors and it was not necessary for the claimants to make all joint tort feasors as parties and if one of them had been made a party, the entire amount of compensation could be realised from that joint tort feasor The learned counsel went on to Submit that in a case of composite negligence, it is for the claimants to choose any of the joint tort feasors and claim the entire compensation from him irrespective of the fact whether the other joint ton feasor have contribution to the accident by their negligence. According to the learned counsel it was for the joint tort feasors to get the remaining joint tort leasers impleaded as parties. For the above-mentioned proposition, the learned counsel relied on Hirben Bhaga v. Gujrat State Rood Transport, A.I R. 1981 Guj 767,. Khushro S. Gandhi v. N. A. Guzder and Ors., A. I. R. 1970 S. C. 1468. Vanguard Fire and General Insurance Co. Ltd. v. Sarla Devi, A. 1. R. 1959 Puhj. 297., Mst. Gaurabai v. Jagdish Prasad, A. I. R. 1984 Bom. 231 and Golak Chandra Dass v. Kousalya Nayak, 1978 A. C. J. 48.
8. The learned counsel for tie Corporation, on the other hand, submitted that there is no quarrel with the proposition that if all the joint tort feasors are aside parties, the claimants can realise the amount of the award from any of the joint tort feasors, inasmuch as the liability of all the joint tort feasors is joint and several. He, however, submitted that in a case of contributory negligence, in the absence of a party to the proceedings, the entire amount could not be realised from the remaining Joint tort feasors because the remaining joint tort feasors would not be in a position to realise from the other joint tort feasors, who are not parties before the Court, the proportionate amount to the extent of their contributory negligence.
9. After hearing the learned counsel for the parties, we are of the view that there is no force in the submissions of the learned counsel for the appellants In the absence of the joint tort feasors before the Court, the amount which has been awarded has to be apportioned to the extent of the negligence that may be found by the party who is before the Court. Hiraben Bhaga's case (supra) does help the appellants, but with respect to the learned Judges, we are unable to agree with them How can the entire amount awarded be realised from the party who is before the Court but has been held to be only contributory negligent to a certain extent ? The joint tort feasor who is before the Court would not be able to realise. the test of the amount from the other joint tort feasors in case it is made liable to pay the entire amount If the other joint tort feasors are also before the Court, no doubt it is up to the claimants to realise the entire amount awarded from any one of the joint tart feasors for the raison that the liability b joint and several In the absence of party, it is not bound by the judgment or the award and consequently, the party which is before the Court cannot ask the other party which is not before the Court to contribute towards the amount awarded. As far as the other authorities which have been referred to by the learned counsel are concerned are not on the point but these only go to lay down that the amount awarded can be realised from any of the joint tort feasors, but these authorities do not lay down that the other joint tort feasors are not to, be made parties before the Court.
10. The learned counsel for the respondent then argued that the claimants had only claimed Rs. 400,000/- in each of the claim petitioner and even if the maximum were to be awarded as claimed, the liability of the Corporation could be at the most half of the same, the contributory negligence had been found to be fifty-fifty between the Corporation driver and the jeep driver. According to the learned counsel. In F A O No. 754 of 1984. though the compensation hid been assessed at Rs. 80,000/-, but since the amount claimed was Rs. 40,000/-, the liability of the Corporation would be Rs. 20 000/- Similarly, F. A O. 8 So of l984, where the entitlement of compensation was found to be Rs. 60,000/-, the Corporation's liability being only half of the amount claimed (i e half of Rs. 40 000/-), the award should not have been of Rs. 30,000/- but of only Ks. 20 000/- Similarly, according to the learned counsel in F. A. O. No. 854 of 1984 where the claimants were found to be entitled to Rs. 48 000'- as compensation the liability of the Corporation should have been restricted to Rs. 20000/- instead of awarding Rs. 24,000/- against it. though the counsel maybe right, but we find that the applications which had been made by the counsel for the claimants for enhancement of the compensation, should have been allowed by tie learned Sings Judge The claimants gave good reasons for restricting their claim to Rs. 40,000/- only, because at that time the court-fee to be paid as higher and they were unable to pay the Court fee We hereby allow those applications for enhancement of compensation and, consequently, find that the amount of compensation awarded against the Corporation, as upheld by the learned Single Judge in these cases, was correct, though we are upholding the same for different reasons.
11. For the reasons recorded above, we find no merit in these appear, which are hereby dismissed. However, there will be no order as to costs.