Y.B. Suryavanshi, J.
1. The appellants/claimants have preferred this appeal under Section 110-D of the Motor Vehicles Act against the award, dated 22.2.1988 passed in Claim Case No. 163 of 1987 (old No. 164 of 1978) by Mr. S.L. Jain, 5th Additional Motor Accidents Claims Tribunal, Indore, whereby the entire claim of Rs. 1,00,000/- has been dismissed on the ground that the accident, namely, the death of the deceased Poonamchand, was caused due to contributory negligence of both the drivers of the vehicles involved, i.e., the bus and the truck and the claimants are not entitled for any compensation because the deceased Poonamchand was himself negligent in sitting on the right side of the driver's seat
2. At this stage, it is not in dispute that the claimants, namely, Hullanbai, Yashodabai and Laxmibai (then aged 1 year) are, respectively, the mother, widow and daughter of the deceased Poonamchand, who died in an accident at about 9.15 p.m. on 18.8.1978 on the Agra-Bombay Road. The truck CPB 6068 is owned by respondent No. 1, Jagdish Prasad and at the relevant time, it was driven by his driver respondent No. 2, Ramsingh alias Anokhilal. The truck was then insured with respondent No. 3, New India Assurance Co. Ltd. under insurance policy Exh. 3 (NA-1). The bus CPE 8819 belongs to the M.P. State Road Transport Corporation. At this stage, it is also not disputed that the accident occurred when the bus on the said Agra-Bombay Road was proceeding from Indore direction towards Dewas and was near about the Suhag Hotel and Sanghi Colony. The bus was driven by Chandansingh. The truck from the direction of Dewas proceeding towards Indore was driven by Ramsingh alias Anokhilal, respondent No. 2. There was an accident but the
3. According to the claimants, the truck as well as the bus were driven rashly and negligently at a high speed. The deceased Poonamchand, who was in the truck, fell down when the two vehicles collided and he fell down between the two vehicles and died on the spot The deceased Poonamchand was 25 years old and was working as an operator at Sonali Plastics on a blowing machine at Indore and his monthly income was Rs. 600/-. The report about the accident was lodged at Police Station Palasia. Dr. Mehta performed the autopsy at the M.Y. Hospital, Indore. The claimants had claimed Rs. 1,00,000/- as compensation for the death of Poonamchand.
4. The truck driver Ramsingh alias Anokhilal and the truck owner Jagdish Prasad filed separate written statements, but their common case is that the said bus was driven rashly and negligently at a high speed by its driver Chandansingh. While denying that the deceased fell down from the truck, they stated that at the time of accident, 'a person came across in the front and was hit by the bus.' For want of knowledge, other averments were denied as also the claim.
5. According to the written statement on behalf of the insurance company, its main contention is that Ramsingh alias Anokhilal was neither driving the insured truck, nor was he then in the employment of his master; the truck was driven by a person who was intoxicated and also did not hold a valid driving licence under the Motor Vehicles Act. While denying rashness or negligence attributed to the insured vehicle, it is stated, in the alternative, that the deceased unautho-risedly sat in the truck and was a 'gratuitous passenger' not entitled to any relief under the terms of the insurance policy and that its liability was even otherwise limited to Rs. 50,000/-.
6. According to the joint written statement filed by the General Manager of the M.P. State Road Transport Corporation and its driver Chandansingh, the bus was not driven rashly or negligently, as alleged. On the other hand, the accident occurred entirely due to the negligent and rash driving by the truck driver, who had further driven it on the wrong side. They further stated that the bus was driven at a slow speed and cautiously on its left side; and on approach of the truck from the opposite direction, the bus was taken on the extreme left of the road and was stationary but the truck which was driven at a high speed, rashly and negligently, came on the wrong side and dashed against the bus, which was at that time stationary. A person was sitting on the right side of the driver in the truck; the window on the driver's side also got broken and that person fell down. Thus, the accident was undoubtedly due to the negligence of the truck driver, who drove the truck against the provisions of the Motor Vehicles Rules by allowing a person to sit by his side with the open window. The deceased had died due to his own negligence and, therefore also, the claim is liable to be rejected.
7. The Tribunal framed 6 issues. Evidence was led, but it is significant that neither the truck driver nor the bus driver was examined, who were the architect of this accident. The learned Tribunal gave the findings, namely, that the claimants Hullanbai, Yashodabai and Laxmibai are respectively the mother, widow and daughter of the deceased Poonamchand (issue No. 5, para 15 of the award); that Ramsingh alias Anokhilal was the driver of the truck and at the time of the accident, he was a holder of a valid driving licence Exh. D-1 (issue No. 1, para 23 of the award); that the deceased Poonamchand as per postmortem report and the evidence of Dr. Mehta had died due to injuries sustained in the accident (issue No. 3); that the age of the deceased was 28 years and he earned Rs. 500/-per month and the dependency was Rs. 300/-per month (paras 33 and 34 of the award); that there was a head-on collision between the two vehicles, which were proceeding in opposite directions and the deceased, who was sitting by the side of the truck driver, fell down and was run over by one of those vehicles and died; and the collision was due to 'contributory negligence' of both the vehicles (para 44 of the award); that the deceased was 'a gratuitous passenger' in the truck and hence, it is not proved that he got in the truck for the purpose of unloading the coal (para 52 of the award); that the Tribunal accepts that the multiplier would be 20 years (para 54 of the award) but as the collision was due to contributory negligence of both the vehicles and as the deceased was a gratuitous passenger and was himself inclined in sitting by the side of the seat of the driver of the truck, the claim has been dismissed with a direction that the parties would bear their own costs. Counsel's fee Rs. 750/- (paras 55 and 56 of the award).
8. Learned counsel for both the parties heard. Record perused. Before considering other points, it would suffice to state that the insurance company wanted to avoid its liability on the ground that the truck driver was drunk and did not hold a licence and, therefore, it is not liable. However, from the evidence of Jagdish Prasad, NA1, owner, it is clear that he had loaded the truck at Itarsi with coal for being sent to Ahmedabad and that is how his driver Ramsingh (not examined) had brought the consignment to Indore on way to his destination. Ultimately, the driving licence Exh. D-l, which was valid from 16.3.1978 to 15.3.1981, was produced. We, therefore, agree with the finding that the truck was driven by Ramsingh and he held a valid licence on the material date.
9. The other points for consideration are as follows:
(i) Whether there was collision between the truck and the bus?
(ii) If so, whether it was due to rash and negligent driving by the bus driver or the truck driver, or it is a case of 'composite negligence' by both the drivers?
(iii) Whether the deceased was guilty of 'contributory negligence'?
(iv) Whether the deceased was a gratuitous passenger or a labourer engaged by the truck driver for unloading the coal?
(v) What would be the just compensation to be awarded to the appellants/claimants?
Point Nos. (i) & (ii)
10. From the evidence of claimants' witnesses, Ramesh and Gokul (Nos. 4 and 5), it appears that Ramsingh, who was known to the deceased Poonamchand, came to him and asked them, including the deceased, to accompany him in the truck for unloading the coal. According to para 2 of the statement of Ramesh, the proposal was that they would get Rs. 10/- each, though, according to Gokul, the driver Ramsingh told them that they would be paid Rs. 40/-. That is how, it seems, those two witnesses, the deceased and two more labourers joined Ramsingh. The learned Tribunal seems to have magnified the discrepancies in the evidence of these two witnesses. But their statements appear to be quite natural. With the temptation of earning Rs. 10/- per head, they seem to have accepted the proposal for unloading the coal in truck. Their evidence, according to para 52 of the award, has been found untrustworthy also on the ground that in the claim petition, it is not mentioned that they were being taken as coolies. This is a matter regarding details and even otherwise strict rule of pleading, as has been applied in the above para for disbelieving those witnesses, does not seem to be proper approach for appreciating their evidence. That evidence the learned Tribunal considered to be 'out of pleadings' because there was omission in the claim petition that the deceased had gone in the truck for unloading as a coolie. Even the particular form prescribed under the Rules has been judicially held to be defective and wanting. It was desirable to mention it while drafting the petition, but only because of that omission, those witnesses cannot be disbelieved. In N.K. V. Bros. Private Limited v. M. Karumai Ammal 1980 ACJ 435 (SC), it was observed that the 'Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here, or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes.' To resume their evidence, we find that both these witnesses have deposed that they boarded the truck and thereafter, they were taken to a nearby place where one-fourth of the coal was unloaded. The driver said that only that much had to be unloaded. This truck thereafter was returning in the direction of Indore. The discrepancy or doubt as to the exact place, where it was unloaded, is not material, which has been magnified by the learned Tribunal without bearing in mind that those witnesses themselves were examined after two years and their job was only to unload some coal. Both these witnesses have stated that they were in the cabin, whereas the deceased sat on the right side of the driver, which had a window, which was also open. The cleaner was on the left side of the driver. They have further stated that from the opposite direction, the Roadways bus was approaching at a high speed. There was no head-on collision but they have further stated that the right side of the truck dashed against the right side of the bus. On the other hand, there is evidence of Sukhwantsingh and Karamjeetsingh. These witnesses had thrown blame of rash and negligent driving on the truck driver. It was a bus, which was returning from the Sarvate Bus Stand, going towards the Nanda Nagar Bus Depot and both these witnesses have frankly admitted that they did not purchase any tickets but were given a free lift. According to them, two or three other persons were also present in the bus. However, they seem to have obliged the bus driver in stating that on the approach of the speedy vehicle from the opposite direction, the bus driver went on the left side of the road with two wheels on the kacha part thereof and the bus was virtually stopped, yet the accident occurred. Both of them admit that the window of the truck was open and the man sitting there fell down. According to Sukhwantsingh (para 2), the rear wheels of the truck ran over the person who fell down. Both these witnesses remained there because meanwhile, the bus driver seems to have gone to inform his superior. It is on record that by the time the case came for evidence, the bus driver Chandansingh had died and could not be examined. However, the version of Sukhwantsingh in the police statement suffers from the material omission that the truck dashed against the bus, which was stationary, which is inferred a material contradiction. From the above evidence led by both the sides, there was not a head-on collision between the two heavy vehicles, but the right side of the truck had dashed against the right side of the bus and obviously, the window, which was totally open, was broken.
11. The witnesses have not stated clearly about the state of traffic on the Agra-Bombay Road, but the place of accident was near Suhag Hotel and Sanghi Colony, which at that time might not have been very wide, but it is in evidence that two vehicles could cross each other comfortably.
12. (i) Thus, in the circumstances, both the drivers were coming from opposite direction and had seen each other. It was night time but as the evidence of both the drivers is not on record, it cannot be said what was the position about dimming the lights and the glaze which is caused when the lights are not dimmed. The truck and the bus both were at a high speed and it appears that both the drivers did not keep a proper lookout or regulate the speed to keep their vehicles in control and as a result thereof, the right side of each vehicle dashed against the other. This accident, therefore, in our view appears to have been caused due to rash and negligent driving of both the drivers. Therefore, this is a case of composite negligence, as described by the learned Tribunal. (ii) The principle of composite negligence comes in where more than one person is responsible in the commission of the wrong and the person wronged had a choice against all or any one or more than one of the wrongdoers. Every wrongdoer is liable and it does not lie in the mouth of one wrongdoer to say that though I am also responsible, yet the other man was also equally responsible for the wrong and on this basis, he cannot avoid the liability. In case of composite negligence, normally it is not possible to fix the liability among the different drivers. Both are liable jointly and severally to the claimants 'because they are joint tort-feasors'. [Refer Harishchandra Hegde v. T.P. Krishnamurthy 1984 ACJ 351 (Karnataka) and Andhra Marine Exports (P) Ltd. v. P. Radhakrishnan 1984 ACJ 355 (Madras).
Point No. (iii)
13. It was certainly a negligent act on the part of the truck driver to accommodate the deceased on his right side and further to allow him to have the window to be kept open. In the totality of circumstances, we do not think that merely because the deceased had sat at the place with the window open, the accident occurred. That was not the direct or proximate cause. The cause was rash and negligent driving by both the drivers. When two vehicles got dashed while crossing each other even if the window was open, they would have made an allowance for that much of space while crossing each other and that is why it is both the drivers who were negligent-Jamnagar Motor Transport Union (P) Ltd. v. Gokaldas Pitamber's L. Rs. 1966 ACJ 42 (SC). On the other hand, the principle of contributory negligence arises when there is an act or omission on the part of the plaintiff which has certainly contributed to the event.
Point No. (iv)
14. The insurance company raised a defence that the deceased was a gratuitous passenger. On the other hand, the evidence supports the finding that the deceased and 3 or 4 other persons as coolies were carried in the truck and some coal was already unloaded. They were to be paid Rs. 10/- per head, obviously, as porters, i.e., coolies. The deceased was not a gratuitous passenger travelling in the goods vehicle, but was engaged by the truck driver and the truck owner is liable whether or not the whole consignment though bound for Ahmedabad, the driver mischievously wanted to unload a part of it at Indore, which he did.
15. In a Full Bench decision in Harishankar Tiwari v. Jagru 1987 ACJ 1 (MP), this court considered the question 'whether the owner/agent of the goods accompanying the goods and travelling in the goods vehicle, which met with an accident, in which the owner/agent of the goods sustained fatal injuries, would be deemed to be a passenger, who was travelling with the goods in a goods vehicle as a passenger carried for reward or by reason or in pursuance of a contract of employment under proviso (ii) to clause (b) of Section 95 (1) of the Motor Vehicles Act.' It was answered in the affirmative in view of the provisions referred above. But this is not a case of gratuitous passenger, but it is a case of a labourer engaged for unloading. Rule 111 of the M.P. Motor Vehicles Rules provides that no person shall carry in the cab of the goods vehicle more than 6 persons in addition to the driver. In the instant case, the insurance policy itself specifies covering the risk of 6 coolies, for which an additional premium seems to have been paid at the rate of Rs. 8/-per head. For those reasons, the deceased being a labourer engaged by the truck driver, the insurance company, under the policy placed on record, is liable.
Point No. (v)
16. According to claimants' witness No. 1, the deceased Poonamchand was working in the plastic factory and was paid piece wages at the rate of Rs. 5/- per kg. for raw material. The witness is not an income-tax payee and it seems that he never kept any record. At least, it was not produced. According to the evidence of Yashodabai, her husband used to give her Rs. 125/- per week and used to keep Rs. 100/-per month for himself. However, according to AW 3, Hullanbai, the amount given to them varied from Rs. 100/- to Rs. 125/- per week. Though she herself earned Rs. 5/- per day, yet she also depended on the income of the deceased. She was examined in 1980 when she was 50 years old. It has also come in evidence of Ramesh, who worked as an apprentice with the deceased, that the deceased earned about Rs. 125/- per week and even when there was no work, he was paid Rs. 10/-. The evidence could have been more certain, but the employer did not produce any record. The age of the deceased was about 25-28 years. Under those circumstances, the learned counsel for the appellants stated that 20 years' multiplier would be proper. The dependency, on the basis of the above facts, appears to be Rs. 300 X 12 months = Rs. 3,600 X 20 years = Rs. 72,000/-. For uncertainties and imponderables of life and on account of lump sum payment a deduction of 25 per cent seems to be proper in the instant case. Accordingly, Rs. 72,000 - Rs. 18,000 = Rs. 54,000/- would be a just award.
17. In the result, this appeal succeeds and is allowed with costs throughout. The award dated 22.2.1988 passed by the Tribunal dismissing the claim of the appellants is set aside. The claimants/appellants shall get a total compensation of Rs. 54,000/- (fifty-four thousand), with interest thereon at the rate of 10 per cent (ten per cent) per annum from the date of application for claim, i.e., 13.9.1978 till realisation. The widow would have been a lifetime dependant, whereas the daughter, then aged one year, would have been dependent until she attains the age of 18 or 19 years, till her marriage. The mother earned Rs. 5/-per day and was already about 50 years old when the accident occurred. Accordingly, out of the total amount of Rs. 54,000/-, Hullanbai (mother), Yashodabai (widow) and Laxmibai (daughter) shall, respectively, get Rs. 8,000/-(eight thousand), Rs. 30,000/- (thirty thousand) and Rs. 16,000/- (sixteen thousand) with proportionate interest thereon at the above rate. The entire amount awarded to the minor Laxmibai, together with interest, shall be deposited in one of the scheduled banks for a period till she attains majority. However, if the amount is required by her natural guardian for education or marriage expenses, it may be withdrawn earlier, with the permission of the Tribunal. The claimants shall get costs throughout. Counsel's fees Rs. 750/- in the Tribunal as well as in this court, if certified. The liability for payment of the amount of the award of the truck owner, the insurance company and the truck driver shall be half of the award and shall be joint and several but the amount will be payable by the insurance company. The liability for the remaining half of the awarded amount would be that of the M.P. State Road Transport Corporation.