R.S. Chauhan, J.
1. The appellant has challenged the award dated 26.4.2005 passed by the Motor Accident Claims Tribunal, Dholpur whereby the learned Tribunal had awarded a compensation of Rs. 2,86,000 to the respondent Nos. 1 and 2 for the death of their son, Samunder Singh @ Samdarshi.
2. According to the claimants, on 12.5.2003 their twenty years old son was travelling in a jeep along with some of his friends in order to attend a marriage in village Macharia. It was alleged that, the said jeep was driven by respondent No. 4 Mangal Singh. It was further claimed that after the jeep passed the Jatoli Mod on the Rajakhera road, suddenly, the jeep driver accelerated the jeep. Despite the request of the passengers to slow down the jeep, he did not pay any heed to their suggestion. Consequently, the jeep collided with a Tata-407, as a result of which two boys namely, Samunder Singh @ Samdarshi and Neeru expired on the spot. Since, the Tata-407 was untraceable, therefore, the claimants filed the claim only against the Insurance Company, the owner and the driver of the jeep.
3. In the written statement filed by the Insurance Company, respondent No. 1, it denied the averments of the claimants. The company claimed that since the driver did not have a valid driver's licence, therefore, the conditions of the insurance policy were violated. Moreover, they claimed that neither the driver nor the owner of the jeep had informed the Insurance Company about the said accident. Furthermore, according to the company, it was an act of God. Therefore, it was not possible for the driver to avoid the said accident. The company further claimed that the accident involved both the jeep and the Tata-407. Thus, the principle of contributory negligence should be kept in mind while apportioning the liability. Lastly, it claimed that neither the owner nor the driver of the Tata-407 has been made a party in the claim petition. Hence, the said claim petition suffers from nonjoinder and mis-joinder of necessary parties. Thus, the claim petition deserves to be dismissed.
4. On the other hand, the owner and the driver have claimed in the written statement that the fault was not of the driver of the jeep. But, in fact, the fault lay entirely with the driver of the Tata-407. They further contended that the driver of the jeep did not violate any of the conditions of the insurance policy. They also claimed that since the jeep was used by private persons, who were being carried for attending a wedding and since they were not charged any amount, therefore, they would not be within the definition of word 'gratuitous passengers'. Hence, the driver and the owner of the jeep denied their liability for the payment of the compensation.
5. The learned Tribunal was pleased to frame seven issues. In order to substantiate their claim, the claimants produced two witnesses namely, A.W. 1 Govind and A.W. 2 Jagdish Sharma. The non-claimants produced only one witness, N.A.W. 1 Mangal Singh, the driver of the jeep. After going through the oral and documentary evidence, the learned Tribunal was pleased to award the compensation as aforementioned.
6. Mr. Pritam Bijlani, the learned Counsel for the appellant has contended that since there was no negligence on the part of the jeep driver, therefore, the Insurance Company is not liable for the payment of the compensation. He has further contended that in the FIR lodged by the jeep driver Mangal Singh, it was clearly stated that the accident occurred due to the fault of the driver of the Tata-407. He further alleged that Mangal Singh as N.A.W. 1 has also testified before the Tribunal that there was no fault on his part. In fact, the accident was caused because of the negligence of the driver of the Tata-407. Moreover, he claimed that since Tata-407 was untraceable, therefore, no liability could be imposed upon the Insurance Company. Lastly, he contended that the learned Tribunal has erred in applying the multiplier of 11 instead of multiplier of 8. For, according to him, A.W. 2 Jagdish Prasad Sharma, the father of the deceased, had claimed that he is 55 years old. According to the learned Counsel, the Tribunal should have presumed that the claimant was above the age of 55 years. Therefore, it should have applied a multiplier of 8.
I have critically examined the impugned judgment.
7. The claimants have produced Govind as A.W. 1. Govind is not only an eyewitness, as he was travelling with the deceased at the time of the fateful accident, but is also an independent witness.' In his testimony, he clearly stated that on 12.5.2003 he along with his other friends were going to attend a marriage at village Macharia. They were travelling by a jeep, which was driven by Mangal Singh. As soon as they crossed Jattoli Mod, Mangal Singh suddenly accelerated the jeep. Despite their protest, Mangal Singh continued to drive the jeep in a rash and negligent manner. Consequently, the jeep met with a head-on collision with a Tata-407. Both, Neeru and Samdarshi died on the spot. Govind is an independent witness and there is nothing in his cross-examination, which has shaken the veracity of his testimony. On the other hand, Mangal Singh has denied his fault in order to save his own skin. Merely because, Mangal Singh claims that he was not at fault, would not dilute the truthfulness of an independent witness. Thus, the learned Tribunal has correctly relied upon Govind's testimony to conclude that Mangal Singh was driving the jeep in a rash and negligent manner. The fact that two persons expired on the spot, clearly proves the force with which the accident must have occurred. Hence, the learned Tribunal has rightly discarded Mangal Singh's testimony; it has correctly relied upon Govind's testimony.
8. In the case of Haji Zinullah Khan v. Nagar Mahapalika Allahabad : (1994)5SCC667 , the Hon'ble Supreme Court dealt with the case where a cyclist was hit by a truck which belonged to the Nagar Mahapalika. In the said case, the Nagar Mahapalika produced the driver as a witness, whereas the claimant produced one Abdul Khalique, who was not only an eye-witness but was also an independent witness. Both the Tribunal and the High Court relied upon the testimony of the driver and discarded Abdul Khalique's testimony. The Hon'ble Supreme Court observed as under:
The Tribunal and the High Court rejected the version of Abdul Khalique primarily on the ground that there was no corroboration to his testimony. We are of the view that the Courts below were not justified in disbelieving the testimony of Abdul Khalique. He was a disinterested witness who was having tea in a restaurant at a distance of about 15/20 feet from the place of occurrence. There is nothing on the record to show that he was trying to help the claimants in any manner or was not a truthful witness. On the other hand, the Nagar Mahapalika produced before the Tribunal the driver of the vehicle and an Assistant Engineer who were its employees. Both were interested witnesses. The Nagar Mahapalika did not produce even a single independent witness to support its version. The Tribunal and the High Court fell into patent error in preferring the evidence of two wholly interested witnesses to that of Abdul Khalique who was an independent witness and whose presence on the spot could not be doubted.
9. In the instant case, I am also of the view that since Govind's presence cannot be doubted as he was travelling in the fateful jeep and since he is an independent witness, therefore, his testimony should certainly be preferred over the testimony of Mangal Singh, the driver of the fateful jeep.
10. Mr. Bijlani has challenged the impugned award on the ground of nonjoinder of the owner, the driver and the Insurance Company of the Tata-407. But, in any humble opinion, the contention is unsustainable. Before the learned Magistrate, the Insurance Company has pleaded that it is a case of contributory negligence. Since, the accident occurred between two vehicles namely, the Tata-407 and the jeep. Both, according to Section 140(3) and Section 163A of the Motor Vehicles Act, 1988, a claimant can choose to sue the parties jointly or severally. Thus, in the present case merely because the owner, driver and the Insurance Company of the Tata-407 have not been added as respondents in the claim petition, it would not adversely affect the maintainability of the claim petition. In Law of Torts by Ratanlala and Dhirajlal, 21st Edition at page 171, the learned authors have clearly stated 'joint tortfeasors are jointly and severally liable for the damages caused from the tort. They may be sued jointly or separately. If sued jointly damages may be levied from all or either. Each is responsible for the injury sustained by his common act. In a suit for composite negligence plaintiff is not entitled to a strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules as to remoteness of damages, he is entitled to sue all or any of the negligent persons and it is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he cannot recover on the whole more than his whole damage. He has a right to recover full amount of damages from any of the defendants'.
11. Hence, there is no force in the arguments of the learned Counsel for the appellant.
12. Mr. Jagdish Prasad Sharma, father of the deceased has claimed that he is 55 years old. There is no presumption in law that once a person claims to be 55 years old, he should be presumed to be 'above' that age. According to the Second Schedule attached with the Motor Vehicles Act, 1988, a multiplier of 11 should be applied in case the claimant is in between 50-55 years of age. Moreover, in case the claimant is above 55 years and does not exceed 60 years, only then a multiplier of 8 should be applied. The Insurance Company did not produce any evidence to prove that the claimant was 'above' 55 years of age. Therefore, the learned Tribunal was legally justified in applying the multiplier of 11, in accordance with the said Schedule. Moreover, according to Their Lordships of the Hon'ble Supreme Court 'the choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher)', General Manager, Kerala State Road Transport Corporation v. Susamma Thomas and Ors. : AIR1994SC1631 . Thus, the learned Tribunal has correctly applied the multiplier to the age of the claimant.
13. Hence, considering all the facts and circumstances of the case, I am of the opinion that no illegality has been committed by the learned Tribunal in passingthe award dated 26.4.2005. Since, the appeal has no merit; it is hereby dismissed.