K.L. Shrivastava, J.
1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 (for short 'the Act') is directed against the award dated 2.3.1981 made by the Member, Motor Accidents Claims Tribunal, Dewas (for short 'the Tribunal') in Claim Case No. 14 of 1978, the old number being 78 of 1974.
2. For the purpose of this appeal it is not in dispute that the deceased Mitthu Lal, aged 24 years, was working in the accident truck bearing registration No. MPE 3625 on daily wages. This truck, on 11.8.1973 at about 10.30 a.m., was stuck in the mud near Bank Note Press, Dewas. In order to pull it out, the accident truck bearing registration No. MPE 8775 which belonged to the respondent Mishri Lal and the deceased respondent Champa Lal, was brought on the scene. At the relevant time the respondent No. 3 Udai Lal was its driver and it was insured with respondent No. 4 against third party risk.
3. According to the appellants, after the task was over, Udai Lal in order to give the stationary track a push with a view to start it, drove the accident truck in the reverse direction with the result that Mitthu Lal was crushed between the back portions of the two trucks and met an instantaneous death.
4. The appellant Meera Bai, the widow of the deceased Mitthu Lal and his parents filed the claim petition under Section 110-A of the Act only against the two owners, driver and the insurer of the truck No. MPE 8775 claiming a sum of Rs. 50,000/- as compensation. According to them the deceased was earning Rs. 15/- to Rs. 20/- per day by working as labourer in the truck and by preparing tiles during spare time; he was earning Rs. 350/-per month on an average. In the claim petition it was stated that the accident was occasioned due to rash and negligent driving by Udai Lal.
5. The claim was contested by the respondent Mishri Lal and the respondent No. 4 the insurer. They filed separate written statements. Champa Lal, the other owner of the truck and the driver Udai Lal remained ex parte from the very start. At later stage Mishri Lal too was set ex parte.
6. Respondent No. 4, the insurer, contested the claim on several grounds. According to the written statement the accident had occurred due to the negligence of the deceased as also that of the driver of the other truck.
7. The learned Tribunal at the conclusion of the trial held that the respondent Udai Lal had himself, without any signal, driven the truck and was responsible for the accident together with the driver of the other truck who was negligent in equal measure. It held that the deceased was aged 24 years and was earning Rs. 200/- per month. The annual dependency was assessed at Rs. 1,200/- and applying the multiplier of 20, compensation was assessed at Rs. 24,000/-. From this, after deduction for uncertainties of life the figure of Rs. 20,000/- was arrived at. As the accident was found to be also as a result of the negligence of the other driver, who had not been imp leaded, the liability of the driver, the owners and the insurer of the accident truck was reduced by 50 per cent and ultimately an award in the sum of Rs. 10,000/- was made.
8. Aggrieved by the award, the claimants preferred this appeal. According to them the accident was occasioned solely due to the negligence of Udai Lal. It is urged that assuming that the case is of composite negligence, under the law, the entire compensation could be recovered from either of the joint tortfeasors. The deduction for uncertainties of life was challenged as being against the current trend of decisions.
9. The learned counsel for the insurer has controverted the contentions sought to be canvassed on behalf of the claimants.
10. It may be stated at the outset that during the pendency of this appeal, Kala Bai, the mother of the deceased and the respondent Champa Lal died and their legal representatives are on record.
11. The point for consideration is whether the appeal deserves to be allowed.
12. From a perusal of the evidence of Wasudeo, AW 3 and Ramdayal, AW 4, it is gathered that the two trucks were facing towards opposite directions and were tied by a rope. When the deceased was engaged in removing the rope, the accident truck was driven in the reverse to give a push to the other truck which was stationary so that it might start. This driving was done without any warning and as a result the deceased was crushed between the hind portions of the two trucks. As the other truck was stationary, I hold that no negligence can be attributed to its driver.
13. On a careful consideration of the evidence on record I find that the conclusion of the learned Tribunal that the accident was occasioned due to the composite negligence of the drivers of the two trucks is clearly wrong. I find that the accident was occasioned solely due to the negligence of the respondent Udai Lal.
14. Assuming that the accident was occasioned by composite negligence, the question is whether the non-imp leading of the other tortfeasor has the effect of either absolving or reducing the extent of the legal liability of the one sued.
15. The learned counsel for the respondent No. 4 relied on a single Bench decision of this court in M.P.S.R.T.C. v. Satish Mittal Civil Revision No. 328 of 1977; decided on 10.3.1980 and contended that the liability for compensation has to be apportioned in the ratio of negligence occasioning the accident in question. In the aforesaid decision, in view of the amendment of 1969 in Section 110-B of the Act, observing that the decision in Manjula Devi Bhuta v. Manjusri Raha 1968 ACJ1 (MP), was distinguishable, it has been held that the liability of the joint tortfeasors has to be apportioned.
16. The learned counsel for the appellants contends that as the liability has to be determined according to the law of Torts there is no question of apportioning the liability and the claimants are entitled to recover the entire compensation from either or both of them. In support of this contention he has placed reliance on the decision in Rama Bai alias Meenakshi v. H. Mukunda Kamath 1986 ACJ 561 (Karnataka), in which the decision in Manjula Devi Bhuta v. Manjusri Raha 1968 ACJ 1 (MP), has been relied upon.
17. In the Division Bench decision in Shankarrao Prahladrao Joshi v. Babulal Fouzdar 1982 ACJ (Supp) 338 (MP), relying on a Full Bench decision of this court, a Supreme Court decision and several other decisions, it has been held that Sections 110-A to 110-F introduced in the Act are merely procedural and provide a cheap and speedy remedy and that the liability for compensation has to be determined with reference to the Fatal Accidents Act and the general law of Torts. Current view is that the provisions are partly substantive.
18. A perusal of para 49 of the judgment in Manjusri Raha's case 1968 ACJ 1 (MP), shows that the interpretation of Section 110-B of the Act is based on the statement of law by Pollock on Torts at page 362, according to which a victim of composite negligence, within the limits set by the general rule as to remoteness of damage, can sue all or any of the joint tortfeasors. The excerpt from Pollock on Torts reads thus:
Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set by the general rules as to remoteness of damage to sue all or any one of the negligent persons. 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 in the whole more than his whole damage.
19. Reference at this stage may also be made to the Division Bench decision in Nandlal Asadmal v. M.P.S.R.T.C. 1980 MPWN 99, wherein it has been held that where the accident had been occasioned by the negligence of the drivers of two buses, they were both joint tortfeasors and compensation could be claimed from one of them alone.
20. From the foregoing discussion I am of the view that notwithstanding the amendment in Section 110-B of the Act, the legal position is that where an accident is caused due to the composite negligence of the two drivers of the accident vehicles, there is no question of apportionment as the case was not one of contributory negligence.
21. This brings us to the question of compensation. In the decision in Kerala State Electricity Board v. Kamalakshy Amma 1987 ACJ 251 (Kerala), it has been pointed out that in working out the compensation under Section 110-B of the Act the Tribunal has a wide discretion and has to award compensation which appears to it to be just. Thus the Tribunal has a wider discretion than that under the Fatal Accidents Act and in determining just compensation arithmetic is a good servant but a bad master. It has also to be remembered that misfortune is not to be converted into a fortune.
22. As pointed out in the decision in Shankarrao Prahladrao Joshi v. Babulal Fouzdar 1982 ACJ (Supp) 338 (MP), compensation has to be determined both under Section 1 and Section 2 of the Fatal Accidents Act. As pointed out in State of M.P. v. Devi Rawat 1981 JLJ 42, one method of assessing compensation is to determine the annual dependency and to apply a suitable multiplier. Several factors have to be borne in mind in selecting the suitable multiplier. The facts of lump sum payment and uncertainties of life have also to be taken into consideration.
23. In the decision in National Insurance Co. Ltd. v. Pushpa Kunwar 1983 ACJ 629 (MP), this court did not allow any deduction on the ground of lump sum payment and uncertainties of life as the future prospects of the deceased had not been taken into consideration. In the decision in Nasib Kaur v. Balbir Singh 1987 ACJ 366 (Delhi), no deduction on account of lump sum payment was made because of high inflation and liabilities towards four minor children. In the decision in Satyawati Sethi v. Subhash Chand, 1987 ACJ 441 (Delhi), no deduction was made as future rise in salary and effect of price rise had not been taken into consideration.
24. According to the claim petition, the deceased by working as labourer on the truck and by preparation of tiles used to have an average monthly income of Rs. 350/-. On the point of income of the deceased we have the evidence of Kukhiya, AW 1, the father of the deceased, Meera Bai, AW2, his widow and his co-labourers Wasudeo, AW 3, and Ramdayal, AW 4. In the context of pleadings, it is clear that these witnesses have given an exaggerated account of the income of the deceased. The learned Tribunal, on a proper appreciation of the evidence on record, has correctly held that average monthly income of the deceased was Rs. 200/- only.
25. On a careful consideration of the material on record, 1 hold the annual dependency to be near about Rs. 1,500/- and a multiplier of 20 should be applied in this case. Thus I hold that a sum of Rs. 30,000/- after deduction of Rs, 1,000/- paid ex gratia would constitute just compensation.
26. In the result the appeal is partly allowed. The respondents shall pay Rs. 30,000/-(thirty thousand) to the appellants as detailed below:
Name of the appellant Amount(1) Dukhi Rs. 8,000/-(2) Meera Bai Rs. 15,000/-(3) Tulsiram s/o Dukhi Rs. 1,000/-(4) Lalta Prasad Rs. 1,000/-(5) Sewaram Rs. 1,000/-(6) Chhotelal Rs. 1,000/-(7) Ashok Rs. 1,000/-(8) Fulibai Rs. 1,000/-(9) Champabai Rs. 1,000/-
27. The respondents shall bear their own costs and shall pay to the appellants the latter's costs of this appeal. The principal amount shall carry interest at the rate of 12 per cent per annum from the date of application till realisation. Counsel's fee Rs. 200/-, if certified.