Guman Mal Lodha, J.
1. This appeal is directed against the Award dated the 28th September, 1981, of the Motor Accidents Claims Tribunal, Kota, awarding Rs. 25,000/- as compensation in favour of the claimant Mohanlal, though it was claimed of Rs. 2,00,000/-. In relation to the accident which took place on 22th April, 1975, at about 10.30 a.m. on the main road of Ghantaghar, Kota-Police Line (Baran road) at a small distance of main gate of Regional Transport Authority Office involving truck No: RJR 3422 owned by Smt. Balwant Kaur, the respondent No. 1 and driver by Ranjit Singh, the respondent No. 2 and insured with the Oriental Fire and General Insurance Company, Branch office, Kota, the respondent No. 3 and motor cycle No. RRR 2438 owned and driven by the deceased Babu Lal, behind whom Mohan Lal, the appellant-claimant was sitting on the motor cycle.
2. The accident took place when Babulal and Mohanlal who were going from the R.T.O. office towards Ghantaghar crossing with the intention of going to the city, while turning their motor cycle at the exit gate of the R.T.O. office, found the truck No. 3422 coming from the opposite direction with an excessive speed, driven rashly and negligently by Ranjit Singh and, the said truck struck and dashed against the motor cycle taking sudden turn towards left side in which direction the motor cycle had already taken a long turn in order to save from being run over by the truck. On account of this the truck dashed against the front bumper of the motor cycle and Babulal and Mohanlal came beneath the truck and, were dragged by the truck upto a distance of 25 feet. Babulal died on account of this accident and the appellant sustained fractures and injuries for which he had to remain admitted in Kota hospital from 25th April, 1979 to 5th May, 1979 and in Bombay hospital for treatment from 7th May, 1979 to 22nd July 1979. At Bombay hospital the operation of the fractures of the appellant was done and skin grafting of his left leg was carried out from where he was discharged on 22nd July, 1979 but, on 23rd July, 1979 he had to remain admitted in Indore hospital and confined to bed thereafter on account of liability to move about.
3. Two claim petitions, being No. 87/79 by the appellant Mohanlal and No. 88/79 by the dependants of the deceased Babulal, were filed against the truck owner and driver so also against the Insurer of the truck, before the Motor accident claims Tribunal, Kota.
4. Here, Mohanlal, the claimant in claim petition No. 87/79 has preferred appeal before this court being aggrieved from the finding of the Tribunal regarding the appointment of the liability on account of the contributory negligence of Babulal and consequent deduction of compensation from Rs. 50,000/- to Rs. 25,000/-. The appellant has also claimed that even otherwise the amount of compensation is too inadequate.
5. Shri K.K. Mehrish, the learned Counsel, who has appeared as behalf of the appellant has submitted that, firstly, there was no contributory negligence of the appellant, Mohanlal. The negligence alleged to be of Babulal is also not proved and he was driving the motor cycle and as per the finding of the Tribunal, itself, he took a long turn and the truck was being driven on the wrong side.
6. Shri Mehrish relied upon the decisions in Devki Devi Tiwari v. Raghunath Sahai Chatrath 1978 ACJ 169 and Nathalal Chhaganlal v. Kolikarsam Lavji 1979 ACJ 212 in support of the above contention.
7. It was then argued by Shri Mehrish that even on the assumption and in the alternative if the composite negligence of Babulal is proved then also, so far as the appellant Mohanlal is concerned, he has got legal right to recover the compensation and damages from either of the joint tort-feasors. In support of this contention, Shri Mehrish relied upon the Judgment of this court in United India Fire and General Ins. Co. v. Sayar Kanwar 1976 ACJ 426 and another Judgment of Allahabad High Court in Devki Devi Tiwari v. Raghu Nath (Supra).
8. Shri S.C. Srivastava, the learned Counsel, appearing on behalf of the Insurance Company, the respondent No. 3, in his reply has submitted that Mohanlal, the appellant had not joined the legal representatives of the deceased Babulal and the Insurance Company of the motor cycle as parties in the claim petition and, therefore, it is not open to him to take the above plea.
9. I have carefully considered the rival contention of the learned Counsel for the parties to the Judgment of the Tribunal. A careful study of the Impugned award of the Tribunal would show that the Tribunal has fallen in a serious fallacy. In the award, the Tribunal has given the following finding at the conclusion of the evidence to the following effect:
X X X X
Later discussion by the Tribunal appears to be contradictory to the above. Hence, the Tribunal found that the truck driver was driving the vehicle on the wrong side and on account of that, the motor cycle driver in order to save himself, took a long turn and the accident was caused in that process, the entire liability is clearly of the truck driver.
10. In view of the above facts, there is a great relevancy of the principles laid down in Devki Devi Tiwari (supra) and Nathalal Chhoganlal's cases (supra) in respect of the responsibility of the driver of the heavy vehicles. However, even on the assumption that there was composite negligence of Babulal also, it is clear that so far as Mohanlal, the appellant, is concerned, he can claim the compensation and damages from both, the drivers of the truck as well as motor cycle. The principles laid down in the above two decisions, one of the Rajasthan and other one of Allahabad High Courts are too well known.
11. The Tribunal has not made the distinction, between the composite and contributory negligence and acted in confusion, on this aspect of the case. In composite negligence, the wrong doers are other than the injured or the deceased person, and he does not contribute to the events leading to an accident which results in injuries or death.
12. Where a person is injured without any negligence on his part but as result of the combined negligence of two other persons (drivers of the vehicles involved in collision, it is not a case of contributory negligence but a case of 'injury of composite negligence.'
13. Where a person is injured without any negligence on his part but as a combined effect of the negligence of two other persons, it is not a case of contributory negligence but is a case of what is styled as 'composite negligence.' If due to the negligence of 'A' and 'B', 'A' has been injured, 'A' can sue both 'A' and 'B' for the whole damage.
14. Unfortunately, the Tribunal could not appreciate this distinction which has been made patent by a series of judgments. It has been held to be so in Sushila Rani Sharma v. Som Nath 1974 ACJ 505 Punj. Palghat Coimbatore Transport Co. ILR 1939 and 306, Manjula Devi Bhuta and Anr. 1968 ACJ Madh. Pra. P. 1, State of Punjab , A. Shivarudrappa v. General Manager Mysore Ud. Trp. Corp. 1973 ACJ 531, Naraina Karanath's case 1963. Mud. LJ Suppl. 368 Parsani Devi v. State of Haryana 1973 ACJ 531. K. Gopalkrishanan v. Sankara Maravanand 1969 ACJ 34 Mad. and K.V. Narasappa v. Kamalamma 1969 ACJ 127 Mad.
15. In the treaties on Torts by clerk and Lindsell 12th edition, para 696, by Salmond 14th edition page 632 and 633. Pollock on Tort, page 362, Charlesworth on negligence 3rd ed. para 828 Pollock on Tort, 15th ed. pp. 361; the definitions which are bounded to be followed, about the contributory negligence and composite negligence the above difference have been recognised.
16. Undoubtedly, Mohanlal, the appellant has not been found of any contributory negligence on his part and the accident was held to be on account of the negligence of the truck driver and the motor cycle driver. However, that would not make any difference so for as the claim of Monanlal is concerned as he can hold both of them jointly and severaly liable for the payment of compensation. I am, therefore, inclinded to accept the contention of Shri Mehrish that the Tribunal was not justified in deducting the damages from Rs. 60,000/- to Rs. 50,000/- by holding that Babu Lal, the motor cycle driver was negligence and, therefore, the truck driver could be made liable only to the extent of 50%.
17. In my considered opinion, both Babulal as well as the truck driver even if they are held to be so joint tort feasors and jointly liable in the accident cases for the negligence, can be made liable jointly and severally. A logical and legal deduction from he above is that the claimant can choose to file claim petition against any one of them and recover the damages from any one of them.
18. Shri Srivastava's contention that unless the joint tort-feasors are made parties, a claim petition cannot survive, is not supported by any decision. I am inclined to think that a joint tort feasor may be proper parties but cannot be necessary parties. Even otherwise, in the cases of the claim petitions under the motor Vehicles accident cases, where summary procedures are taken unless an objection regarding necessary parties is taken at the earliest opportunity, it cannot be allowed to be taken now in the appeal before the High Court. Moreover, there is no bedrock in such on objection as it was not raised at any stage and no opportunity was given to the claimant to consider that. Basical, motor cycle driver died on account of this accident and, therefore, there is all the more reason to overrule this objection of Shri Srivastava.
19. In view of the above, the finding of the Tribunal regarding the liability of the non-applicants being only of Rs. 25,000/- is modified and it is ordered that they would be liable to pay the entire amount of compensation awarded.
20. Shri Mehrish then pointed out that the general damages for mental and physical agony and pain on account of the suffering and servere injuries caused in the accident has been awarded only at Rs. 10,000/- although Rs 60 000/- were claimed. In this respect, Shri Mehrish pointed out the statement of Dr. P.N. Narkar (AW) of Indore Hospital who treated Mohanlal, the appellant, as per the advice of Orthopaedic surgeon, Dr. K.T. Dholkiya of Bombay according to Dr. Narkar, Mohanlal had suffered 60% disability and there are no chances of joint of bone now. It has not been jointed for 1 and 1/2 years This would cause permanent disability. According to Dr. Narkar Mohanlal always complained of serious pain as the fracture could not be remedied and corrected so far as left femur is concerned. It would require lone-grafting second time by second operation.
21. Another Dr. D.D. Sharma (AW 7) testified that in this accident, Mohanlal received fracture of Tibia of the left leg and there were two fractures on both thigh in the femur. In left leg, the Tibia femur was broken and he remained as indoor patient from 5th May, 1979. The plaster was made from leg upto chest Mohanlal was sent for treatment to Indore and then he went to Bombay. In Kota, he was advised for re-setting of the bones and thereafter Mohanlal went to Indore for this purposes. Mohanlal was in serious shock and he was also given blood and suffered serious pain.
22. In view of the injuries mentioned above, which are of serious and severe nature, Shri Mehrish submitted that an amount of Rs. 60,000/- on this count should have been awarded. Shri Mehrish relied upon the decision of the Apex Court in M.P. State Road Transport Corporation Bairagarh Bhopal v. Sudhakar 1977 ACJ 290 where for general damages on account of pain and suffering Rs. 20,000/- was awarded with much less injuries of the claimant. I am inclined to accept the above contention but, would increase the general damage for pain and sufferings to only Rs. 20,000/- from Rs. 10,000/- and, the prayer to increase it upto Rs. 60,000/- is rejected.
23. The result of the above discussion is, that this appeal is accepted and the amount of compensation is increased from Rs. 25,000/- to Rs. 50,000/-with interest at the rate of 12% from the date of application till the date of realisation. In any case, the liability of the respondent No. 3 insurance company would be limited to Rs. 50,000/-. The appellant would get costs as Rs. 400/- from the respondents. To the above extent, the impugned award is modified and in all other respects so far as the claim petition of the appellant Mohanlal is concerned it is confirmed.