Whether negligence in accident case can be proved by production of Police charge-sheet?

As regards the finding regarding negligence also, as rightly

pointed out by the learned counsel for the claimants, the production of

Police charge-sheet is prima facie sufficient evidence of negligence. A

Division Bench of this Court in Pazhaniammal's case (2011(3) KLT

648) has addressed that question and has held as follows in paragraphs


7 and 8:

        "As a general rule it can safely be accepted that production of

        the police charge sheet is prima facie sufficient evidence of

        negligence for the purpose of a claim under S.166 of the Motor

        Vehicles Act. A system cannot feed itself on a regular diet of

        distrust of the police. Prima facie, charge sheet filed by a

        police officer after due investigation can be accepted as

        evidence of negligence against the indictee. If any one of the

        parties do not accept such charge sheet, the burden must be on

        such party to adduce oral evidence. If oral evidence is adduced

        by any party, in a case where charge sheet is filed, the Tribunals

        should give further opportunity to others also to adduce oral

        evidence and in such a case the charge sheet will pale into

        insignificance and the dispute will have to be decided on the

        basis of the evidence. In all other cases such charge sheet can

        be reckoned as sufficient evidence of negligence in a claim

        under S.166 of the Motor Vehicles Act. We mean to say that on

        production of such charge sheet the shifting of burden must

        take place. It is not as though we are not conscious of the

        dangers and pit falls involved in such an approach. But we feel

        that adoption and recognition of such practice would help to

        reduce the length of the long queue for justice before the

        Tribunals. The judicial recognition of the practice will help the


       Tribunals to ensure the optimum use of judicial time at their

       disposal for productive ventures. We do not intend to say that

       collusive charge sheets need be accepted. Wherever on the

       facts of a given case the Tribunals feel that the police charge

       sheet does not satisfy their judicial conscience, the Tribunals

       can record that the charge sheet cannot be accepted and can call

       upon the parties, at any stage, to adduce oral evidence of the

       accident and the alleged negligence. In such a case, the issue of

       negligence must be decided on the other evidence, ignoring the

       charge sheet."



Herein, through P.W.1, the charge sheet has been marked as Ext.A3.

The same, therefore, is prima facie sufficient evidence of negligence.

The onus of proof has been shifted to the insurance company and as

already found above, it is recorded in the "B" diary, that the third

respondent insurance company reported that there is no further

evidence.  Therefore,    the finding on negligence has been rightly

rendered by the Tribunal. 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

           MR.JUSTICE T.R.RAMACHANDRAN NAIR
                                   &
             MR. JUSTICE K.P.JYOTHINDRANATH

        WEDNESDAY, THE 20TH DAY OF MAY 2015

                       MACA.No. 1075 of 2009 ( )
          
THE ORIENTAL INSURANCE CO.LTD.Vs SHOBHANA OMANAKUTTAN,
       

     These two appeals arise from the judgment in O.P.(MV)

No.1395/2000 on the file of the Motor Accidents Claims Tribunal,

Pathanamthitta. The insurance company is the appellant in M.A.C.A.

No.1075/2009 and the claimants before the Tribunal are the appellants

in M.A.C.A. No.2974/2009. Before the Tribunal, the claimants filed

application under Section 166 of the Motor Vehicles Act for grant of

compensation consequent on the death of the late husband of appellant

No.1 in M.A.C.A. No.2974/2009.                 Appellant No.2 therein is the

daughter.

     2. The accident occurred on 7.11.2000 at                    4.45 p.m. The

deceased Sri Omanakuttan was riding his scooter bearing Reg. No.KL-

4/D-5090 through Kozhencherry - Pathanamthitta public road from


Pathanamthitta to Chengannoor, i.e. from east to west. The accident

spot is near Chirackala junction and the offending vehicle is a motor

cycle bearing Reg. No.KL-5/C-1997. The first respondent before the

Tribunal was driving it and the said vehicle was coming from west to

east. It hit the scooter, as a result of which the deceased fell down and

sustained severe injuries.      He was immediately taken to Muthoot

Medical Centre, Kozhencherry and was treated there from 7.11.2000 to

8.11.2000 on which date he was taken to Pushpagiri Hospital,

Thiruvalla for better treatment.      He succumbed to the injuries on

12.11.2000 at 3 a.m. at the said hospital.

      3. The claimants raised a total claim for Rs.41,95,000/- as

compensation and the Tribunal awarded a sum of Rs.27,13,495/- with

interest at 7.5% from the date of petition (20.11.2000) till realisation

and cost of Rs.60,000/-.

      4. The deceased was nearing 42 years of age at the time of

accident (his date of birth being 20.5.1959). It was contended that he

was working as an Aircraft Mechanic at Qatar Emirates Air-force and

was getting a monthly income of Rs.50,000/-. Before he joined Qatar



Air-force, he was working in Indian Navy, as Helecopter Mechanic

from 1975 to 1986.

      5. We heard learned Senior Counsel for the insurance company

Shri George Cherian and Shri        A.N. Santhosh, learned counsel

appearing for the claimants.

      6. The Tribunal found, on the evidence adduced by the claimants,

that the rider of the offending vehicle was negligent in causing the

accident. P.W.1 is appellant No.1 in M.A.C.A. No.2974/2009 who is

the widow of the deceased and P.W.2 was examined to prove the

income and prospects of the deceased. The documents marked on the

side of the appellants are Exts.A1 to A24. The respondents did not

examine any witness and did not produce any documents also and the

owner of the vehicle remained ex-parte.

      7. Learned Senior Counsel         appearing for the insurance

company, Shri George Cherian submitted that it was the contention of

the Company that      the accident occurred due to the contributory

negligence of the deceased also. It is submitted that even though

originally the rider of the motor cycle was impleaded as first


respondent, later he was removed from the party array. Therefore, the

finding regarding negligence on the part of the driver, cannot be

sustained. It is submitted that the first respondent before the Tribunal

was a necessary party and any finding on negligence without him in the

party array cannot be accepted at all. Learned Senior Counsel therefore

sought for a remand of the matter to the Tribunal for fresh trial.

      8. In support of his contention that the driver of the offending

vehicle is a necessary party, he invited our attention to Rules 377 and

378 of the Kerala Motor Vehicles Rules, 1989. It is submitted that Rule

377 will show that the Tribunal will have to send a copy of the

application together with a notice fixing the date for appearance, to the

owner, driver and insurer. It is submitted that Rule 378(1) will also

show that mention is made about the right of the owner, driver and

insurer to file written statement. It is submitted that a reference to the

form for filing application for compensation, viz. Form "Comp.A"

prescribed under Rule 371 will show that column 16 provides for

giving the name and address of the owner of the vehicle, column 17

provides for giving the name and address of the insurer and column 18



provides for showing the name and address of the driver of the vehicle.

It is therefore submitted that this being important, the Tribunal had to

issue notice to the driver, allow him to file a written statement and then

alone it could have entered into a finding regarding negligence. It is

also submitted by referring to Section 168 of the Motor Vehicles Act

that when an award is passed, the Tribunal will have to specify the

amount which shall be paid by the insurer or owner or driver of the

vehicle involved in the accident or by all or any of them, as the case

may be and therefore the impleadment of the driver in the proceedings

is imperative. He relied upon the decisions of the Apex Court in

Oriental Insurance Co. Ltd. v. Meena Variyal and others {(2007) 5

SCC 428} and Machindranath Kernath Kasar v. D.S. Mylarappa

and others {(2008) 13 SCC 198}. He also raised a contention

regarding the merits of the claim also and finally prayed that the claim

petition may be remanded for fresh consideration.          Learned Senior

Counsel further relied upon the Law of Torts, 18th Edn. by Salmond,

especially     paragraph 167      at   page     417,    to   explain   the



principle regarding liability of joint tortfeasors. It is submitted that in

cases where the accident was caused due to the composite negligence

or in a case like this where the deceased also is alleged to have

contributed to the accident, the driver is a necessary party. He relied

upon    the judgment of a learned Single Judge of this Court in

Surendran v. Shajahan (2014 CDJ 2178 - OP(MAC) No.187/2014)

wherein it was held that the impleadment of driver is necessary.

      9. Shri A.N. Santhosh, learned counsel appearing for the

claimants who are respondents 1 and 2 in M.A.C.A. No.1075/2009,

opposed the above contentions and submitted that in the light of the

decision of a Division Bench of this Court in Anuradha Varma v.

State of Kerala (1993 (2) KLT 777) holding the view that an

application without impleading the driver is maintainable, the argument

raised by the learned Senior Counsel for the insurance company cannot

be accepted.

      10. Shri A.N. Santhosh submitted that even if in the form for

application claiming compensation, provision is made to show the


details of the driver, the impleadment as a respondent is not imperative.

Herein, there is no plea of violation of the conditions of policy and

even though there was a plea by the insurance company of contributory

negligence on the part of the deceased, the owner remained ex-parte

without contesting the case and thereby admitting the negligence on the

part of the rider of the motor cycle and the liability. As far as the

insurance company is concerned, even though permission was obtained

by invoking Section 170 of the Act to contest the claim on various

grounds, no attempt was made to adduce any evidence. It is submitted

by referring to the findings rendered by the Tribunal on negligence, that

it is clearly a case where the rider of the motor cycle was negligent and

the deceased has not contributed to the accident. He was riding the

scooter on its correct side. It is submitted that the Police had charge-

sheeted the rider of the motor cycle who was the accused therein and

Ext.A3 is the charge-sheet in Crime No.792/2000 of Pathanamthitta

Police Station. The Tribunal has correctly assessed the evidence by

relying upon Ext.A1 F.I.R., Ext.A2 certified copy of scene mahazar and

Ext.A3 charge sheet. It is submitted that the charge-sheet will prima



facie establish negligence as against the driver of the offending vehicle

and he drew support from the decision of a Division Bench of this

Court in New India Assurance Company Ltd. v. Pazhaniammal

(2011 (3) KLT 648) wherein it was held that "production of Police

charge sheet is prima facie sufficient evidence of negligence for

purpose of a claim under Section 166 of the Act." It is also submitted

that the insurance company did not make any attempt even to examine

the driver of the motor cycle as a witness. Therefore, the finding as

regards negligence cannot be assailed on any ground.

      11. It is further submitted that in the written statement filed by the

insurance company before the Tribunal, there was no contention

regarding non-joinder of necessary parties. The insurance company did

not insist to frame any issue as to whether the driver of the said vehicle

is a necessary party. It is therefore submitted that they cannot be heard

to say in the appeal that there is non-joinder of necessary parties. It is

submitted that the decisions of the Apex Court relied upon by the

learned Senior Counsel for the insurance company do not lay down the

principle that without impleading the driver of the offending vehicle,



the claim petition is not maintainable. In that context he relied upon

three decisions of the Bombay High Court wherein the decision of the

Apex Court in Machindranath Kernath Kasar's case {(2008) 13

SCC 198} has also been considered. They are: New India Assurance

Company Ltd. v. Sitaram Devidayal Jaiswal & others (CDJ 2012

BHC 465), Divisional Manager, United India Insurance Company

Ltd. v. Sharad and others (CDJ 2012 BHC 2335) and Maharashtra

State Road Transport Corporation v. Kusumbai and others (CDJ

2012 BHC 2342). In support of his contention that the objection, if

any, with regard to the non-joinder of parties should be taken before the

issues are framed and cannot be allowed to be raised in appeal, he

relied upon the decision of a learned Single Judge of this Court in

Varghese Cherian v. Ouseph Korathu (1960 KLT 1080). In support

of the claim for further enhancement of compensation, he relied upon

the decisions in Jiju Kuruvila and others v. Kunjujamma Mohan

and others {(2013) 9 SCC 166}, Pawan Kumar v. Harkishan Dass

Mohanlal (2014 (1) KLT 571 - SC), Puttamma v. Narayana Reddy


(2014 (1) KLT 738 - SC), Valsamma v. Binu Jose (2014 (1) KLT 10)

and New India Assurance Co. Ltd. v. Lettish Remy and others

(2015 (1) KLJ 76).

     12. Shri George Cherian, learned Senior Counsel for the

insurance company, in reply, submitted that even the provisions of the

Kerala Torts (Miscellaneous Provisions) Act, 1976, especially Section 8

will show that there should be apportionment of amount of

compensation where there is contributory negligence which can be

made only in the presence of the driver. He also relied upon the

judgments    of this Court in       National Insurance Co. Ltd. v.

Sivasankara Pillay (1995 (1) KLT 51) and National Insurance Co.

Ltd. v. Yohannan (1997 (2) KLT 771).          Learned Senior Counsel

further submitted that the rider of the motor cycle had filed O.P.(MV)

No.1181/2002 but the insurance company, viz. the appellant in MACA

No.1075/2009 was not a party therein and to his knowledge the said

application was dismissed for default. It is also submitted that for

deciding the legal issue, both these matters ought to have been heard



together by the Tribunal.

       13. We have gone through the records in this case. In O.P.(MV)

No.1395/2000 filed by the appellants in MACA No.2974/2009, the

first respondent was shown as the rider of the motor cycle. His details

have been given in column No.17. The second respondent was the

owner of the vehicle whose details have been given in column NO.16

and the third respondent is the insurer of the vehicle and the details of

the company have been given in paragraph 18. In the cause title the

addresses of respondents 1, 2 and 3 have been shown also.

       14. The "B" diary shows that on 8.6.2001 respondents 2 and 3

were made ex-parte and for return of notice of the first respondent the

case was posted to 24.11.2001. On 24.11.2001 there was no sitting.

The next posting was on 18.3.2002 on which date the first respondent

was removed from the party array.        The order making the third

respondent insurance company ex-parte was set aside and for the

written statement of the third respondent, the case was posted to

1.1.2003. On that day the case was adjourned to 21.4.2003 and as the

insurance company filed written statement on the said date, the case


was posted for evidence. After several adjournments, the evidence

finally started on 25.6.2008 on which date Exts.A1 to A12 have been

marked and P.W.1 was examined. P.W.1's examination continued on

14.8.2008 and as per the order in I.A.No.2881/2008, Exts.A13 to A16

were marked. P.W.2was examined on 29.8.2008 and Exts.A17 to A22

have been marked. On 26.9.2008 Exts.A23           and A24   have been

marked and the evidence on the part of the claimants was closed. For

the evidence of the third respondent, the       case was adjourned to

28.10.2008 and on that day there was no sitting and the case was

adjourned to 19.11.2008. On 19.11.2008 it was represented on behalf

of the third respondent insurance company that there is no evidence for

them and the case was adjourned for hearing to 10.12.2008. The

arguments were finally heard on 2.1.2009 and the award was passed on

20.1.2009.

      15. In the written statement filed by the insurance company, it is

averred in paragraph 5 that "the motor cycle bearing Reg. No.KL-5/C-

1997 was driven by the first respondent with due care and caution. The

accident occurred solely due to the negligence on the part of the


deceased while riding scooter bearing Reg. No.KL-4/D-5090. This is a

case of collision and at any rate, there is contributory negligence on the

part of the deceased.       So, the petitioners are not entitled to

compensation to the extent of the degree of negligence on the part of

the deceased."    I.A. No.1148/2007 is the one filed under Section 170

of the Motor Vehicles Act, 1988.

      16. P.W.1 is claimant No.1, the widow of the deceased. Proof

affidavit has been filed in support of the allegations in the claim

petition. It is averred in paragraph 3 that the accident occurred due to

the rash and negligent driving of the motor cycle bearing Reg. No. KL-

5/C-1997 by the rider of the vehicle and it hit the scooter which was

being plied by her husband. She was cross examined by the learned

counsel for the insurance company. The cross examination is confined

to the employment of the deceased in Qatar, the claim regarding

emoluments as well as the financial background of the deceased.

Regarding contributory negligence alleged in the written statement, it is

seen that no suggestions and questions have been put to P.W.1. She

had given an answer on the earlier part that she did not see the accident


actually. No other questions have been put to her either with regard to

the documents relating to the accidents produced as Exts.A1 to A3 and

her version that the motor cycle was coming in great speed and was

being driven rashly and negligently by the rider.

      17. Of course, no contention has been raised by the insurance

company in the written statement that the rider of the motor cycle is a

necessary party. The issues framed, going by paragraph 8 of the award,

are the following:

        "1. Who is responsible for the accident?

         2. What, if any, is the quantum of compensation the petitioner

         is entitled to get?

        3. Who is liable to pay compensation?

        4. Regarding reliefs and costs?

No issue has been sought to be framed as to whether the rider of the

motor cycle is a necessary party.       The Tribunal has recorded in

paragraph 9 that the contesting third respondent has not adduced any

evidence on their side.

      18. In paragraph 10 while deciding issue No.1, the Tribunal has

referred to the contention of the third respondent/insurer that the


accident occurred due to the negligence of the deceased and at least

there was contributory negligence on the part of the deceased. It is

observed that in order to substantiate this contention, the contesting

third respondent has not adduced any evidence before the Tribunal.

Exts.A1 to A3 have been discussed thereafter. It is further observed in

the said paragraph that the rider of the motor cycle KL-5/C-1997 has

been arrayed as accused in the criminal case. Ext.A3 is the final report

submitted by Police after investigation of the crime in Ext.A1, before

the Chief Judicial Magistrate Court of the District. Reference has been

made about the fact that the rider of the motor cycle was having licence

which is recorded in Ext.A2 scene mahazar. The offences alleged,

going by Ext.A3 final report, are under Sections 279, 338 and 304-A

I.P.C. The Tribunal has observed that there is a specific allegation in

Ext.A3 final report that the accident occurred due to the rash and

negligent driving of the motor cycle bearing Reg. No.KL-5/C-1997 by

the driver of the offending motor cycle.

      19. The plea regarding contributory negligence raised in the

written statement was addressed in paragraph 11 and in that context,


the contents of Ext.A2 scene mahazar have been discussed. Going by

Ext.A2, the accident spot is       1.35 metre towards north from the

southern end of the tar portion of the road. It is also noted in Ext.A2

that at the place of accident tar portion of the road is having 6.08 metre

width. The Tribunal therefore found that from Ext.A2 it is clear that

the accident has taken place on the southern side of the tar portion of

the road. We extract the further findings in paragraph 11 of the award

and the conclusion drawn that the accident occurred due to the rash and

negligent driving of the motor cycle by its rider          at the time of

accident:

         "That means at the time of accident the left side of the scooter

         which was ridden by the deceased was the southern side of the

         road and the left side of the motor cycle which was ridden by

         the first respondent was the northern side of the road. If that be

         so, from the scene mahazar it is clear that motor cycle which

         was ridden by the first respondent was in wrong side. If that

         be so, from the evidence available before this Tribunal it can be

         safely inferred that the accident was occurred due to the rash

         and negligent riding of the motor cycle bearing Reg. No.KL-

         5/C-1997 by the first respondent. Issue is found in favour of



        the petitioners."

      20. We had also called for the records in O.P.(MV)

NO.1181/2002 which was filed by the rider of the motor cycle claiming

compensation for the injuries alleged to have been sustained by him in

the very same accident. Therein, the first respondent is the widow of

the deceased and the second respondent is the insurer of the scooter,

viz. National Insurance Company Ltd., Pathanamthitta. He had claimed

a total compensation of Rs.2 Lakhs. He had alleged that the deceased

Omanakuttan was driving his scooter rashly and negligently. The first

respondent widow filed a written statement denying the allegation of

negligence and mention is made about the pendency of O.P.(MV)

No.1395/2000 and the fact that the Pathanamthitta Police has charged a

case against the petitioner therein, the rider of the motor cycle as

Crime No.792/2000 and has charge-sheeted him under Section 304-A

I.P.C.   The insurance company has also filed a written statement

denying the various aspects including the allegation of negligence on

the part of the deceased.

      21. The proceedings paper shows that the case was being



adjourned from time to time. It is seen filed on 5.10.2002. After

several postings for evidence, starting from 2.7.2009, it was again

adjourned for evidence to 26.8.2011 on which date it was adjourned to

17.10.2011.     There was no sitting on that day and the O.P. was

adjourned to 9.12.2011. On 9.12.2011 there was no representation for

the petitioner and notice was ordered to him to appear on 13.2.2012.

On 13.2.2012 the petitioner was called absent and the claim petition

was dismissed for no representation. On verifying the files, it is seen

that the said O.P. has not been restored to file. The records in the said

case were called for as requested by both sides, to verify the various

aspects.

      22. In the first of the decisions relied upon by learned Senior

Counsel Shri George Cherian,     viz. Meena Variyal's case {(2007) 5

SCC 428}, the facts show that the vehicle involved in the accident was

used for travelling by the deceased Suresh Chandra Variyal, who was

employed as Regional Manager in M/s. Apace Savings and Mutual

Benefits (India) Ltd. The employer, the owner of the vehicle, was also

impleaded before the Tribunal. The claim petition was filed by the


widow and daughter under Section 166 of the Motor Vehicles Act

impleading the owner as well as the insurance company. It was alleged

that one Mahmood Hasan, a companion of the deceased was driving the

car but he was not impleaded. The Tribunal found on the evidence that

the vehicle was being driven by the deceased himself. The insurer was

exonerated from liability as there was no coverage for the employee of

the owner.    In appeal filed before the High Court, the insurance

company was directed to pay the amount of compensation and they

were allowed to recover the compensation from the insured.          The

insurance company approached the Apex Court challenging the above

direction. In paragraph 10, the Apex Court has made certain general

observations. On the general principles available under the contract of

insurance, it was held in that paragraph that "once the driver is liable,

the owner of the vehicle becomes vicariously liable for payment of

compensation.      It is this vicarious liability of the owner that is

indemnified by the Insurance Company." It was also held that "under

the general principles one would expect the driver to be impleaded

before an adjudication is claimed under Section 166 of the Act." On the



facts of the said case, the Apex Court in paragraph 11 held that the

Tribunal ought to have directed the claimant to implead Mahmood

Hasan who was allegedly driving the vehicle at the time of accident.

      23. In the subsequent decision, viz. Machindranath Kernath

Kasar's case {(2008) 13 SCC 198} various aspects and the question

whether the driver will be a necessary party before the Tribunal, etc.

were examined in the light of Rule 235 of Karnataka Motor Vehicles

Rules, 1989. The facts of the case     are relevant and they are the

following: The appellant before the Apex Court was the driver of a

bus belonging to Karnataka State Road Transport Corporation. The

accident occurred on 18.4.1995 when the bus collided with a truck.

Several passengers were injured and the driver was also injured. The

passengers and the driver filed separate applications for payment of

compensation before the Tribunal concerned. In the criminal case the

appellant driver was prosecuted for rash and negligent driving. No

criminal prosecution was there as against the driver of the truck. In the

claim petitions filed by the passengers the appellant driver was

examined in support of the case of the Corporation, the owner of the


bus.    He was not impleaded as a party therein. The Tribunal found

that the driver of the bus was driving the bus rashly and negligently.

The claim petitions filed by the passengers were allowed and no appeal

was filed by the Corporation and the said awards attained finality.

      24. In the claim petition filed by the appellant driver, the Tribunal

again considered the issue regarding negligence and it was found

against the appellant driver. Even though he filed an appeal before the

High Court, that was dismissed. It was found by the High Court, inter-

alia that the finding as regards negligence in the earlier claim petitions

has attained a finality and hence dismissed his appeal. It is seen from

the discussion that the driver of the truck was not impleaded in the

claim petition filed by the appellant driver of the bus but he was

examined before the Tribunal as RW.1. The non-impleadment of the

driver in the respective cases is in the light of Rule 235 of the

Karnataka Motor Vehicles Rules, 1989.

      25. Rule 235 of Karnataka Motor Vehicles Rules,1989 which is

quoted in paragraph 23 of the judgment, is extracted hereinbelow:

          "235. Notice to the parties involved-- (1) The Claims Tribunal



     shall on an application made to it by the applicant send to the

     owner or the driver of the vehicle or both from whom the

     applicant claims relief and the insurer, a copy of the application,

     together with the notice of the date on which it will dispose of the

     application, and may call upon the parties to produce on that date

     any evidence which they may wish to tender.


     (2)   Where the applicant makes a claim for compensation under

     Section 140 the Claims Tribunal shall give notice to the owner

     and insurer if any, of the vehicle involved in the accident

     directing them to appear on the date not later than 10 days from

     the date of issue of such notice. The date so fixed for such

     appearance shall also be not later than fifteen days from the

     receipt of the claim application filed by the claimant. The Claims

     Tribunal shall state in such notice that in case they fail to appear

     on such appointed date, the Tribunal will proceed ex-parte on the

     presumption that they have no contention to make against the

     award of compensation."

We also quote Rules 377 and 378(1) of the Kerala Motor Vehicles

Rules, 1989 for convenience:

      377. Notice to parties involved:- (1) If the application is not

      dismissed under Rule 373 the Claims Tribunal shall send to the


     owner of the motor vehicle involved in the accident, its insurer

     and its driver a copy of the application together with a notice of

     the date on which it will hear the application and may call upon

     the parties to produce on that date any evidence that they may

     wish to tender:

           Provided that in the case of an application for

     compensation under section 140 of the Act the owner or insurer

     or driver, as the case may be, shall be directed to appear not later

     than 10 days from the date of issue of the notice and the date so

     fixed shall also be not later than 15 days from the date of receipt

     of the claim application.

           (2) If the insurer is not impleaded as a party         to the

     application as originally filed, or if the name of the insurer is not

     correctly given therein, it shall be open to the applicant to make

     an application to the Claims Tribunal for appropriate amendment

     to the application for the purpose of bringing the insurer on

     record.

           (3) Whenever the Claims Tribunal deems fit, it may receive

     from the applicant addressed envelopes with sufficient postal

     stamps affixed for service of notice.

     378. Appearance and examination of parties:- (1) The owner

     of the Motor Vehicle, the insurer and the driver may, and if so

     required by the Claims Tribunal shall, at or before the first



       hearing or within such further time as the Claims Tribunal may

       allow, file a written statement dealing with the claims raised in

       the application, and any such written statement shall for part of

       the records."

      26. A reading of Rule 235 of the Karnataka Rules and Rule 377

(1) of the Kerala Rules will show that sub-rule (1) in both are worded

somewhat similarly. Before the Apex Court attention was invited to a

Division Bench judgment of           Karnataka High Court in Patel

Roadways v. Manish Chhotalal Thakkar (ILR (2000) Kant. 3286)

wherein it was held that a claim petition would be maintainable even

without impleading the driver. The Apex Court has noted in paragraph

26 that "the Kerala, Bombay, Madras, Allahabad, Patna,Punjab and

Haryana and Delhi High Courts, on the one hand, noticing a large

number of decisions, held that drivers are not necessary parties."

Reference was made to a contrary decision of the Madhya Pradesh

High Court in New India Assurance Co. Ltd. v. Munnidevi (1993

ACJ 1066) and M.P. SRTC v. Vaijanti (1995 ACJ 560) wherein it was

held that the driver of the offending vehicle would be a necessary party.


Those two decisions were distinguished by the Karnataka High Court

in Patel Roadyways's case (ILR 2000 Kant.3286) by pointing out that

under the Madhya Pradesh Motor Vehicles Rules the driver was

required to be impleaded.

      27. The view taken by Karnataka High Court, which has been

extracted in paragraph 27 of the judgment of the Apex Court, is that the

owner and driver of the motor vehicle being joint tortfeasors, who are

jointly and severally liable for the      negligence of the driver, the

claimant can sue either the owner or the driver or both. It was also held

that a claim petition can be maintained as against the owner and insurer

of the vehicle without impleading the driver.       For making the owner

vicariously liable for the act of the driver, the negligence on the part of

the driver will have to be proved, whether the driver is impleaded or

not. But where the driver is not impleaded as a party no decree or

award can be passed against him. Personal liability can be cast on the

driver only if he is impleaded as a party and notice of the proceedings

has been issued to him.

      28. With regard to the joint liability of the owner and driver, the



Apex Court in paragraph 28 has held as follows:

        "28. When a damage is caused upon act of negligence on the

        part of a person, the said person is primarily held to be liable for

        payment of damages. The owner of the vehicle would be liable

        as he has permitted the use thereof. To that effect only under the

        Motor Vehicles Act, both driver and owner would be jointly

        liable. This, however, would not mean that they are joint tort

        feasers in the strict sense of the term. There exists a distinction

        between the liability of the owner of a vehicle which was used

        in commission of the accident and that of the driver for whose

        negligence the accident was caused, but the same would not

        mean that the owner and the driver are joint tort feasers in the

        sense as it is ordinarily understood."

Significantly, after referring to the Karnataka Rules, their Lordships

held in paragraph 29 that "in this case we are not required to lay down a

law that even in absence of any rule, impleadment of the driver would

be imperative." In paragraph 30 their Lordships referred to Section 168

of the Motor Vehicles Act whereby the Tribunal has to specify the

amount to be awarded against the owner, driver and insurer and held

that the proceedings will not be vitiated in the absence of the driver and


the driver may not be a necessary party. We extract hereinbelow

paragraph 30:

       "30. It is however, of some interest to note the provisions of

       Section 168 of the Motor Vehicles Act. In terms of this

       aforementioned provision, the Tribunal is mandatorily required

       to specify the amount which shall be paid by the owner or driver

       of the vehicle involved in the accident or by or any of them. As it

       is imperative on the part of the Tribunal to specify the amount

       payable inter alia by the driver of the vehicle, a fortiori he

       should be impleaded as a party in the proceeding. He may not,

       however, be a necessary party in the sense that in his absence,

       the entire proceeding shall not be vitiated as the owner of the

       vehicle was a party in his capacity as a joint tort feaser."

 After finding so, their Lordships considered the plea of the appellant

driver as against the driver of the truck and observed in paragraph 32

thus:

       "32. The principles of natural justice demand that a person must

       be given an opportunity to defend his action."

Even though learned Senior Counsel Shri George Cherian submitted

that the findings thereafter in various paragraphs will lead to the



conclusion that the driver was a necessary party, according to us, on a

close reading of the various findings, the Apex Court has not held that

impleadment of driver is imperative.

       29. We will now proceed to explain the various findings. The

question posed has been noted in paragraph 38 which is as to whether

the driver is a necessary party or the owner alone can be impleaded. We

extract the said paragraph hereunder:

         "38. The issue to be examined herein is whether in the claims

         cases before the Motor Vehicles Accident Claims Tribunal, the

         driver of a vehicle who has been accused of negligence is a

         necessary party to the proceedings or whether the owner alone

         can be impleaded."

After noticing that the driver of the bus was examined as RW.1, in the

first set of cases filed by the passengers, it was held that he was a party

to the proceedings. On the question whether in the claim petition filed

by the driver of the bus, the driver of the truck should necessarily be

made a party it was held that "he was not". We extract hereinbelow

paragraph 40 in full:

        "40. The analysis of our findings aforementioned is:-


          (i)    In the first set of claims cases, the driver of the bus
          was held to be negligent and, therefore, a ruling that the
          driver is a necessary party would mean that the bus driver
          must necessarily be involved in these proceedings.
          However, the driver of the bus had sufficient opportunity to
          make a representation against the allegation of negligence
          as he was examined as RW1 in the claim cases filed by the
          passengers, even though he was not formally impleaded as
          a Respondent. Hence, the High Court has correctly held
          that he was a "party" to the proceedings.

          (ii)   In the claims filed by the driver of the bus (namely
          the Appellant herein), specific allegations were made
          against the driver of the truck. Hence, the question is
          whether the driver of the truck must necessarily be made a
          party to the proceedings. He was not.


      Here, one must bifurcate the terms 'party' and 'necessary party'.

      'Party' has been correctly defined by the High Court in the

      impugned judgment in terms of involvement in the proceedings

      regardless of formal impleadment. However, a necessary party

      has been defined in the 5th Edn. of Black's Law Dictionary as

      follows:-

            "In pleading and practice, those persons who must be
            joined in an action because, inter alia, complete relief
            cannot be given to those already parties without their
            joinder. Fed. R. Civil P.19 (a)"

    30. The said paragraph will show that the Apex Court was of the


view that the terms "party" and "necessary party" will have to be

bifurcated. A party will be one who is involved in the proceedings

regardless of formal impleadment. "Necessary party" is one without

whose presence complete relief cannot be granted.             Then, in

paragraph 41 their Lordships observed that natural justice mandates

that when adverse finding is rendered, he should be allowed an

opportunity at least to make a representation as a witness. This is

clear from the following sentence:

        "First and foremost, as has been stated in the body of the

        judgment, natural justice would mandate involvement of a

        driver, as an adverse finding on negligence cannot and should

        not be made against him without giving him the opportunity to

        at least make a representation as a witness."

While referring to the judgment in Patel Roadways' case (supra), it has

been observed further that: "However, the fact that joint tortfeasors

have been mentioned in the judgment is relevant." (emphasis supplied

by us)

      31. Shri George Cherian, learned Senior Counsel raised          an

argument that strictly the driver and owner may not be joint tortfeasors.



But according to us, the following paragraph, viz. paragraph 42 of the

judgment of the Apex Court in Machindranath Kernath Kasar's case

(supra) will show that the owner who is vicariously liable, will also be

a joint tortfeasor. We extract in full paragraph 42 to have a proper

analysis of the dictum laid down by the Apex Court therein.

         "42. Joint tortfeasors, as per the 10th edition of Charlesworth

         & Percy on Negligence, have been described as under:-


         "Wrongdoers are deemed to be joint tortfeasors, within the
         meaning of the rule, where the cause of action against each of
         them is the same, namely that the same evidence would
         support an action against them, individually. Accordingly,
         they will be jointly liable for a tort which they both commit or
         for which they are responsible because the law imputes the
         commission of the same wrongful act to two or more persons
         at the same time. This occurs in cases of (a) agency; (b)
         vicarious liability; and (c) where a tort is committed in the
         course of a joint act, whilst pursuing a common purpose
         agreed between them."


         Hence, employer and employee, the former being vicariously

         liable while the latter being primarily liable are joint

         tortfeasors and are therefore jointly and severally liable.

         However, by virtue of the fact that the cause of action is the

         same and that the same evidence would support an action



        against either, it follows that this evidence must necessarily

        include an examination of the driver who is primarily liable.

        To make a finding on negligence without involving the driver

        as at least a witness would vitiate the proceedings not only on

        the basis of the fact that the driver has not been given an

        opportunity to make a representation, but also because the

        evidence to make a finding regarding negligence would

        necessarily be inadequate."

As far as joint tortfeasors are concerned, they will be jointly liable for a

tort which they both commit or for which they are responsible.           In

order to attract the second limb, it should be a case where the law

imputes the commission of the same wrongful act to two or more

persons at the same time. It was held by the Apex Court that the said

cases are: (a) agency; (b) vicarious liability; and ) where a tort is

committed in the course of a joint act, whilst pursuing a common

purpose agreed between them. According to us, the next sentence in

the judgment will have much application herein also. Therein, the

Apex Court held that the employer will be vicariously liable and the

employee will be primarily liable and they are joint tortfeasors and are,

MACA 1075 & 2974 of 2009           33

therefore, jointly and severally liable.      Learned Senior Counsel

emphasised the latter part of the said paragraph to contend that there is

a clear finding that in regard to a finding on negligence, it could be

entered only if the driver is impleaded as a party. According to us, the

position has been further made clear in paragraph 43 of the judgment

which we extract below:

       "43. On this basis, a driver should be made a 'party' to the

       proceedings. It was done in the instant case. In the present case,

       the contention of the counsel for the respondent Insurance

       Company, namely that without contrary evidence led by the

       appellant or Corporation, the finding of negligence on the part

       of the appellant cannot be interfered with, must be upheld.

       Without a deposition on the part of the truck driver and without

       his involvement at least as a witness, an adverse finding on

       negligence cannot be made against him."

The latter half of paragraph 42 wherein it was held that "to make a

finding on negligence without involving the driver as at least a witness

would vitiate the proceedings" will have to be understood in the

background of the finding in paragraph 43 that "On this basis he

should be made a party to the proceedings. Without his involvement at

MACA 1075 & 2974 of 2009           34

least as a witness, an adverse finding on negligence cannot be made

against him." Clearly, their Lordships considered these aspects in the

light of the fact that the bus driver was     attacking the finding on

negligence against him and tried to impute the negligence on the part

of the truck driver.    The principle laid down is that when primary

liability as against the driver is sought to be established, at least he

should be involved as a witness. This is far from saying that he is a

necessary party to be impleaded. Paragraph 42 will have to be read and

understood on the special context of the said case.

       32. In paragraph 44 their Lordships noticed that the truck driver

was examined as R.W.1 and a reading of paragraph 45 which we

extract below, will show that the Apex Court did not accept the

contention of the driver of the bus and held that the judgment of the

High Court does not suffer from any legal infirmity:

        "45. If we accept the contention of Ms. Suri that the Tribunal

        committed an error, in effect and substance, we will be holding

        that the Tribunal committed an illegality in awarding

        compensation to the passengers of the bus. It was in that sense,

        the High Court cannot be said to have committed any error in

MACA 1075 & 2974 of 2009            35

       holding that the appellant was also an aggrieved person.

       Furthermore, both the Tribunal and the High Court have rightly

       arrived at a finding of fact that it was the appellant alone who

       was rash and negligent in driving of the vehicle. No case had

       been made out to differ with the said finding of fact."

      33. That was a case where the driver of the bus pressed for a

finding as against the driver of the truck on negligence. The crucial

findings in paragraphs 40 to 44 will lead to the conclusion that the

driver is a not necessary party in the proceedings and without his

junction the claim petition will be maintainable. It was only held that

he should a "party" at least as a witness or at least he should be allowed

an opportunity to explain the facts. Significantly, we also notice that

the view taken in Patel Roadways' case (ILR (2000) Kant. 3286) that

the application can be maintained without personally impleading the

driver as a necessary party, has not been set aside. The view taken by

this Court and Bombay, Madras, Allahabad, Patna, Punjab and Haryana

and Delhi High Courts that the driver is not a necessary party, has not

been varied or overruled.

      34. The sum and substance of the conclusions in Machindranath

MACA 1075 & 2974 of 2009            36

Kernath Ksar's case (supra) are the following:

        i) The insurance company will be liable under the contract of

        insurance to indemnify the owner;

        ii) The driver of the offending vehicle will be primarily liable

        and the owner will be vicariously liable;

        iii) The driver and owner of a vehicle will be joint tortfeasors

        and they will be jointly and severally liable;

        iv) The driver may not be a necessary party and the entire

        proceedings will not be vitiated in his absence once the owner

        of the vehicle was a party in his capacity as joint tortfeasor;

        v) The driver of the offending vehicle, if sought to be made

        liable to satisfy the award or part of it, then he should be given

        an opportunity to defend the action, so that the principles of

        natural justice are satisfied. He should be given an opportunity

        to at least make a representation as a witness; and

     35. This decision cannot be understood as laying down the

proposition that even as against the owner, to render a finding with

regard to the vicarious liability, when findings are rendered with regard

MACA 1075 & 2974 of 2009             37

to negligence, the driver should be necessarily be made a party. This is

clear from the crucial sentence in paragraph 30 that "he may not,

however, be a necessary party in the sense that in his absence, the

entire proceedings shall not be vitiated as the owner of the vehicle was

a party in his capacity as a joint tortfeasor."

      36. Salmond on the "Law of Torts" 20th Edn. at page 434,

explains the term "joint tortfeasors." We extract hereinbelow the

following portion from paragraph 20.11:

       "Where the same damage is caused to a person by two or more

       wrongdoers those wrongdoers may be either joint or

       independent tortfeasor.       Persons are to be deemed joint

       tortfeasors within the meaning of this rule whenever they are

       responsible for the same tort--that is to say, whenever the law

       for any reason imputes the commission of the same wrongful act

       to two or more persons at once. This happens in at least three

       classes of cases--namely, agency, vicarious liability, and

       common action, i.e. where a tort is committed in the course of a

       common action, a joint act done in pursuance of a concerted

       purpose.    In order to be joint tortfeasors there must be a

       concurrence in the act or acts causing damage, not merely a

       coincidence of separate acts which by their conjoined effect

MACA 1075 & 2974 of 2009                38

       cause damage. The injuria as well as the damnum must be the

       same. So that if the presence of a particular mental intent is

       necessary to constitute liability each tortfeasor must be proved

       to have that intent. "

In fact, learned Senior Counsel Shri George Cherian wanted to

emphasise that the owner and driver cannot be treated as joint

tortfeasors. But as explained by the Apex Court in the above decision,

the owner will also be responsible and will be treated as a joint

tortfeasor, since the law imputes the commission of the same wrongful

act to two or more persons at the same time even in the case of

vicarious liability. Even though Shri George Cherian relied upon the

decision of a Division Bench of this Court in National Insurance Co.

Ltd. v. Sivasankara Pillay (1995 (1) KLT 51), therein also the same

principle has been laid down as is clear from paragraph 8. Their

Lordships have held as follows therein:

        "............. In the book by Street on `Torts" the categories of joint

        tortfeasors have been enumerated at page 473 in the 7th

        Edition. They

        are: (a) Master and servant in those cases where the master is

MACA 1075 & 2974 of 2009            39

        vicariously liable for the tort of the servant. (b) Where one

        person instigates another to commit a tort. (c) Where there is a

        breach of a duty imposed jointly on two or more person, e.g.,

        two occupiers are joint tortfeasors if they are sued by a visitor

        for failure to take reasonable care in respect of the premises

        jointly occupied by them. (d) Where persons take concerted

        action to a common end and in the course of executing that

        joint purpose, any one of them commits a tort."

Therefore, the owner and driver will have to be           held as joint

tortfeasors and as jointly and severally liable.

      37. Now we will refer to the decisions of the Bombay High Court

relied upon by Shri A.N. Santhosh, learned counsel appearing for the

claimants wherein the decision of the Apex Court in Machindranath

Kernath Kasar's case (supra) has also been relied upon to hold that

the driver is not a necessary party and without him the application can

be maintained.

      38. The first one is Sitaram Devidayal Jaiswal's case (CDJ

2012 BHC 465). Paragraph 3 of the judgment shows that therein the

insurance company which was the appellant, had raised a contention

MACA 1075 & 2974 of 2009               40

that the driver of the car was a necessary and proper party and since he

was not impleaded, the claim petition is not maintainable.            After

referring to various decisions of the same High Court, the learned

Judge considered Rule 260 of the Maharashtra Motor Vehicles Rules,

1989 which is similarly worded like the Kerala Rules. Sub-rule (1)

states that "if the application is not dismissed under Rule 259, the

Claims Tribunal shall, send to the owner or the driver of the vehicle or

both involved in the accident and its insurer, a copy of the

application............." In paragraph 10 it has been held as follows:

       "10. Thus, the law is that the claimant while filing a claim

       application is under no obligation to ensure that all necessary

       and proper parties are impleaded as opponents to the claim

       petition.       Considering the nature of the proceedings, the

       responsibility is of the Tribunal to ensure that the notices are

       issued to all the necessary parties. This power can be exercised

       by the Tribunal at any stage of the proceedings."

In paragraph 11, it was held that if the insurer has not raised a

contention and pursued it before the Tribunal that the driver is not a

necessary party, the said contention cannot be allowed to be raised in

MACA 1075 & 2974 of 2009               41

appeal. We extract the said paragraph herein for easy reading:

        "11............. It is obvious that if such contention is not pressed

        by the party to whom the notice is served, the said party cannot

        be allowed to raise the said contention for the first time in the

        appeal. A claimant cannot be allowed to suffer as he is under

        no obligation to implead any party as the opponent to the claim

        petition. In such a case, if the driver is aggrieved by the

        adverse finding recorded against him by the award of the

        Tribunal, he has a remedy of preferring an appeal against the

        award after obtaining a leave of the Appellate Court. If neither

        the owner nor the insurer raises a contention before the

        Tribunal regarding the non-joinder of the driver, it is not open

        for them to contend in the appeal that the driver was a

        necessary party and that the award is vitiated because of non-

        joinder of the driver."

The same is relied upon by Shri A.N. Santhosh to contend for the

position that the insurance company in this case has not pursued their

contention regarding contributory negligence of the driver, before the

Tribunal by adducing any evidence. In paragraph 12 of the above

judgment, it was held that even though there was a contention in the

written statement, it appears that no issue was framed and the said

MACA 1075 & 2974 of 2009           42

contention was not pressed at the time of final hearing and therefore in

the appeal the insurance company cannot be allowed to raise the said

contention.

      39. The next decision is Kusumbai's case (CDJ 2012 BHC

2342). Therein, the contention raised by the appellant by relying upon

the judgment in Machindranath Kernath Kasar's case (supra) was

that the driver is a necessary party. This contention was negatived by

observing that the appellant owner of the bus could bring the driver to

the witness box for examination. Finally, it was held that the bus driver

was not a necessary party.

      40. In Sharad's case (CDJ 2012 BHC 2335) the appellant was

the insurance company. It was contended by the appellant that the

driver was a necessary party. In paragraph 12 the decision of the Apex

Court in Machindranath Kernath Kasar's case (supra) has been

considered and in paragraph 14 it was finally held that the driver of the

bus in the present case, was not a necessary party and the contention of

the appellant was rejected. In paragraph 15 it was also noted that the

MACA 1075 & 2974 of 2009           43

driver has been charge-sheeted in the criminal case.

      41. We will now come to the decision of a Division Bench of this

Court in Anuradha Varma v. State of Kerala (1993 (2) KLT 777)

wherein it was held that the application can be maintained without

impleading the driver. Reliance was placed on the fact that the liability

of the owner and driver will be joint and several and they are joint

tortfeasors.  Their Lordships    had also relied upon the provisions

contained in Section 7 of the Kerala Tort (Miscellaneous Provisions)

Act, 1977.    Paragraph 7 of the judgment will show that therein the

State contended that the driver is a necessary party. The Division

Bench consisting of T.L. Viswanatha Iyer and P. Krishnamoorthy, JJ.

(speaking through P.Krishnamoorthy, J.), held in paragraph 7 thus:

       "7. In torts the liability of the joint tortfeasors is joint and

       several. In other words, the liability of the owner and the driver

       of the vehicle is joint and several and any person who suffers

       damages is entitled to sue any one of them. May be the person

       against whom an award is passed and who has paid the amount

       is entitled to contribution from the other joint tortfeasor. That

       does no prevent or disentitle a claimant from suing one of the

MACA 1075 & 2974 of 2009          44

     joint tortfeasors. This view has been expressed by two Division

     Bench decisions of this Court reported in Insurance Company v.

     Varghese (1988 (2) KLT 871) and United India Insurance Co.

     Ltd. v. Ratnamma (1988 (1) ACJ 435). In the latter case it was

     observed:-

          "The owner and driver are joint tortfeasors arid therefore
          absence of one of them will not be a bar for a suit for
          compensation. This does not mean that the negligence of
          the driver need not be proved. Even in the absence of the
          driver evidence regarding the negligence of the driver can
          be adduced. Take for example, a case where the driver also
          die in the accident without leaving any legal representative.
          That will not preclude the injured from claiming
          compensation against the owner or the insurer. The owner
          and driver are joint tortfeasors, whose liability is joint and
          several. Each may be sued alone or jointly and each will be
          liable for the whole damage".


     Further, from the provisions contained in S. 7 of the Kerala

     Torts (Miscellaneous Provisions) Act, 1977 it is clear, that a suit

     against one of the joint tortfeasors alone is maintainable, for that

     Section provides that the other joint tortfeasor will be entitled to

     contribution from the tortfeasor who was not a party to the

     proceeding. The Section also provides that the filing of a suit or

     other proceeding against one of the joint tortfeasors " will not be

     a bar for the claimant for filing another claim or suit against the

     other tortfeasor. From this provision also it is clear that a

MACA 1075 & 2974 of 2009             45

       claimant is entitled to sue one of the joint tortfeasors for relief

       without impleading the other joint tortfeasor. Rule 6 of the

       Kerala Motor Accidents Claims Tribunal Rules, 1977 does not

       make it obligatory on the part of a claimant to make the driver

       also a party to the proceedings. That rule only provides that the

       Claims Tribunal shall send notice to the owner and the driver of

       the motor vehicle along with copy of the application. If the

       name of the driver is available, the Tribunal is enjoined to send

       notice to him also. This does not mean that an application

       without impleading the driver is not maintainable. In that view

       of the matter, we overrule the second contention raised by the

       Government Pleader as well."

The importance of the provisions under Section 7 of the above Act has

been explained by the Division Bench therein.

      42. Now we will consider, for the purpose of this case also, the

provisions under Section 7 since Shri George Cherian, learned Senior

Counsel tried to distinguish the dictum laid down therein on the

particular facts of this case. We extract herein Sections 7 and 8 in full:

        "7. Proceedings against, and contribution between, joint and

        several tort-feasors-- (1) Where damage is suffered by any

        person as a result of a tort (whether a crime or not),

MACA 1075 & 2974 of 2009           46

             (a) judgment obtained against any tortfeasor liable in

      respect of that damage shall not be a bar to an action against

      any other person who would, if sued, have been liable as a joint

      tortfeasor in respect of the same damage;

             (b) if more than one action is brought in respect of that

      damage by or on behalf of the person by whom it was suffered,

      or for the benefit of his estate, or of the dependants of that

      person, against tortfeasors liable in respect of the damage

      (whether as joint tortfeasors or otherwise), the sum recoverable

      under the judgments given in those actions by way of damages

      shall not in the aggregate exceed the amount of the damages

      awarded by the judgment first given; and in any of those

      actions, other than that in which judgment is first given, the

      plaintiff shall not be entitled to costs unless the court is of

      opinion that there was reasonable ground for bringing the

      action;

             (c) any torfeasor liable in respect of that damage may

      recover contribution from any other tortfeasor who is, or would

      if sued have been, liable in respect of the same damage,

      whether as a joint tortfeasor or otherwise, so however that no

      person shall be entitled to recover contribution under this

      section from any person entitled to be indemnified by him in

      respect of the liability in respect of which the contribution is



      sought.

             (2) In any proceedings for contribution under this

      section, the amount of the contribution recoverable from any

      person shall be such as may be found by the court to be just

      and equitable having regard to the extent of that person's

      responsibility for the damage; and the court shall have power

      to exempt any person from liability to make contribution, or to

      direct that the contribution to be recovered from any person

      shall amount to a complete indemnity.

             (8) Apportionment of liability in case of contributory

      negligence.-- (1) Where any person suffers damage as the result

      partly of his own fault and partly of the fault of any other

      person or persons, a claim in respect of that damage shall not

      be defeated by reason of the fault of the person suffering the

      damage, but the damages recoverable in respect thereof shall be

      reduced to such extent as the court thiks just and equitable

      having regard to the claimant's share in the responsibility for

      the damages:

             Provided that --

             (a) this sub-section shall not operate to defeat any

      defence arising under a contract;

             (b) where any contract or enactment providing for the

      limitation of liability is applicable to the claim, the amount of



      damages recoverable by the claimant by virtue of this sub-

      section shall not exceed the maximum limit so applicable.

             (2) Where damages are recoverable by any person by

      virtue of sub-section (1), subject to any reduction as is therein

      mentioned, the court shall find and record the total damages

      which would have been recoverable if the claimant had not

      been at fault.

             (3) Section 7 shall apply in any case where two or more

      persons are liable or would, if they had all been sued, be liable

      by virtue of sub-section (1) in respect of the damage suffered

      by any person.

             (4) Where any person dies as the result partly of his own

      fault and partly of the fault of any other person or persons, and

      accordingly if an action were brought for the benefit of the

      estate under Part II of this Act, the damages recoverable would

      be reduced under sub-section (1), and damages recoverable in

      an action brought for the benefit of the dependants of that

      person under the Indian Fatal Accidents Act, 1855, shall be

      reduced to a proportionate extent.

             (5) Where, in any case to which sub-section (1) applies,

      one of the persons at fault avoids liability to any other such

      person or his personal representative on the plea that the claim

      is barred by limitation, he shall not be entitled to recover any



        damages      or   contribution   from   that   other   person     or

        representative by virtue of that sub-section.

               Explanation.-- In this section, "fault" means negligence,

        breach of statutory duty or other act or omission which gives

        rise to a liability to tort or would, apart from this Act, give rise

        to the defence of contributory negligence; and "damage"

        includes loss of life and personal injury."

Section 7 relates to the proceedings against, and contribution between,

joint and several tortfeasors and Section 8 provides the way in which

the liability will have to be apportioned in case of contributory

negligence. Going by Section 7, the following aspects are relevant: (a)

Judgment obtained against any tortfeasor shall not be a bar to an action

against any other person who would have been liable as a joint

tortfeasor in respect of the same damage; (b) If more than one action is

brought in respect of that damage, the sum recoverable under the

judgments given in those actions by way of damages shall not in the

aggregate exceed the amount of the damages awarded by the judgment

first given; ) Any tortfeasor liable in respect of that damage may

recover contribution from any other tortfeasor who is, or would if sued



have been, liable in respect of the same damage, whether as a joint

tortfeasor or otherwise; and (d) The contribution recoverabe shall be

such as may be found by the court to be just and equitable having

regard to the extent of that person's responsibility for such damage.

      43. Section 8 (1) will imply that the claim of a person who has

suffered damage as a result partly of is own fault and partly of the fault

of any other person or persons, shall not be defeated by reason of the

fault of the person suffering the damage, but the damages recoverable

in respect thereof shall be reduced to such extent as the court thinks

just and equitable having regard to the claimant's share in the

responsibility for the damages.        Sub-section (3) of Section 8 is

important wherein it is stated that Section 7 shall apply in any case

where two or more persons are liable or would, if they had all been

sued, be liable by virtue of sub-section (1) in respect of the damage

suffered by any person.

        44. The rules, viz. Kerala Motor Accidents Claims Tribunal

Rules, 1977 will also show that the present Rule 377 which we have

already referred to, is a verbatim reproduction of Rule 6(1) of the old



rules.  The Rules of 1977, especially Rule 5 provides for "summary

dismissal of application." The Rules of 1989, viz. Rule 373 is under

the heading "summary disposal of application".        Rule 6(1) is the

relevant rule which is identically worded to Rule 377(1). The same is

extracted below:

        "6(1) Notice to parties involved:- (1) If the application is not

        dismissed under Rule 5, the Claims Tribunal shall send to the

        owner of the motor vehicle involved in the accident, its insurer

        and its driver a copy of the application together with a notice

        of the date on which it will hear the application and may call

        upon the parties to produce on that date any evidence that they

        may wish to tender."

The Division Bench in Anuradha Varma's case (supra) was of the

view that Rule 6 does not make it obligatory on the part of the claimant

to make the driver also a party to the proceedings. We have also

considered the effect of Rule 377 and the interpretation of Rule 6 of

1977 Rules will squarely apply herein also.

       45. We respectfully agree with the view taken in Anuradha

Varma's case (1993 (2) KLT 777) that the proceedings can be



maintained without impleading the driver as a necessary party. The

driver and owner will be joint tortfeasors and an action can be made

against any one of the tortfeasors. The provisions under Section 7 are

unique and since such provision will have application herein, non-

impleadment of driver will not vitiate the proceedings. Section 7 of the

Act permits an action against a person as a joint tortfeasor even though

judgment has been obtained against another tortfeasor.              The

implications are therefore evident. The said provisions will therefore

go against the contentions of the Insurance Company.

      46. We will now come to the judgment of a learned Single Judge

of this Court in O.P.(MAC) No.187/2014 which was relied upon by

Shri George Cherian, learned Senior Counsel. The facts of the case

show that the claimant before the Tribunal approached this Court

challenging an order passed by the Tribunal refusing to review its order

dated 8.8.2014 directing the claimant to take steps for impleadment of

the driver of the alleged offending vehicle. The Tribunal had held that

the driver is a necessary party in the proceedings based on Rule 377 of

the Kerala Motor Vehicles Rules. In the course of argument, reliance


was placed by the learned counsel for the claimant on the decision of

the Apex Court in Machindranath Kernath Kasar's case (supra).

The learned Single Judge, in paragraph 7 held that the Apex Court in

that decision held that the driver may not be a necessary party since the

joint tortfeasor, the owner, was impleaded in that capacity. The issue

was answered specifically relying on Rule 235 of Karnataka Rules.

Thereafter, Rule 377(1) of the Kerala Rules and its effect            was

considered and it was held that the rule makes         it mandatory for

issuance of notice to the driver of the vehicle and obliges the claimant

to implead such driver as a necessary party. The learned Single Judge

relied upon the decision of the Apex Court in Meena Variyal's case

{(2007) 5 SCC 428} while sustaining the order passed by the Tribunal.

      47. Of course, if the Tribunal feels      at a later stage of the

proceedings that the driver should be issued notice, it can do so. We

understand    that the judgment      of the learned Single Judge was

rendered only in that context and it cannot be said that the decision will

go to show that without the junction of the driver, the application

cannot be said to be maintainable.



      48. We in this context, will refer to paragraph 9 of the judgment

of the Bombay High Court in Sitaram Devidayal Jaiswal's case (CDJ

2012 BHC 465) which we have already considered. Rule 260 of

Maharashtra Rules, 1989 which is similar in terms to Rule 377 of

Kerala Rules and the procedure      to be adopted by the Tribunal, has

been considered in paragraph 9. We extract below paragraph 9 in full:

        "9. Perusal of the provisions of the said Act and the said Rules

        of 1989 show that a claim petition is not at all a civil suit and

        neither the said Act nor the said Rules of 1989 require a

        claimant to implead any person as a party opponent to a claim

        petition. A duty is cast upon the Tribunal by virtue of Rule

        260 of the said Rules of 1989 to issue the notices to the

        concerned parties. On this aspect, it will be necessary to make

        a reference to the decision of the Division Bench of this Court

        in the case of Bessarlal Laxmichand Chirawala v. The Motor

        Accidents Claims Tribunal, Greater Bombay and others (1970

        ACJ 334).      In paragraph No.10 of the said decision, the

        Division Bench held thus:

             "10...... In that connection it requires to be noticed that

             provisions in the Motor Vehicles Act and the Rules made

             in   connection     with   application   for   claims    for



            compensation do not require any parties to be mentioned

            as opposite parties in the title of the application. When

            the formality of the amendment was asked for, it was the

            legal duty of the Tribunal in this case to ascertain true

            facts as regards the ownership of the B.E.S.T.

            Undertaking itself and thereafter it was permissible for

            the Tribunal even without an amendment having been

            granted to make an award of compensation in favour of

            the petitioner against the Municipal Corporation."

            (underline supplied)

        39. Of course, the said decision was rendered in a claim

        petition under the Motor Vehicles Act, 1939. But even under

        the said Act and the said Rules of 1989, the legal position

        continues to be the same. However, Rule 260 of the said

        Rules of 1989 is now very clear which enjoins the Tribunal to

        issue notices to the concerned parties. Rule 260 of the said

        Rules of 1989 reads thus:-

             "Rule 260. Notice to the parties involved:-

             (1) If the application is not dismissed under Rule 259, the

             Claims Tribunal shall, send to the owner or the driver of

             the vehicle or both involved in the accident and its

             insurer, a copy of the application, and the annexures

             thereto together with the notice of the date on which the


             parties shall enter their appearance either in person, or

             through their duly authorised agents, and may also file

             their written statement, if any, with additional copies of

             the same, for being furnished to the other parties

             connected with the matter.       It will dispose off the

             application, and may call upon the parties to produce on

             that date any evidence which they may wish to tender.

             (2) The service of the notice shall be effected on the

             owner, the driver and the insurer of the vehicle in

             question, as the case may be, by way of personal service,

             through the bailiff or by Registered Post A/D or both.

             (3) Whether      the applicant     makes a claim for

             compensation under Section 149, the Claims Tribunal

             shall give notice to the owner and insurer, if any, of the

             vehicle involved in the accident directing them to appear

             on the date, not later than fifteen days from the date of

             issue of such notice.      The date so fixed for such

             appearance shall also be not later than fifteen days from

             receipt of the claim application filed by the claimant.

             The Claims Tribunal shall state in such notice that in case

             they fail to appear on such appointed date, the Claims

             Tribunal shall proceed ex parte on the presumption that

             they have no contention to make against the award of


              compensation."

      49. We have already extracted paragraph 10 of the said judgment

in paragraph 38 above. It is therefore clear that the power to issue

notice can be exercised by the Tribunal at any stage, if called upon to

do so even by any other respondents. The same would imply that the

petition cannot be rejected as not maintainable by holding that the

driver is a necessary party. Further, we notice that the decision of the

Division Bench of this Court in Anuradha Varma's case (1993 (2)

KLT 777) was not brought to the notice of the learned Single Judge.

Therefore, we record our inability to accept the contention of the

learned    Senior Counsel based on the judgment in O.P.(MAC)

No.187/2014 that the driver is a necessary party. The said judgment

will have to be understood on the peculiar facts of the said case.

      50. We are, therefore, of the view that it cannot be said that the

driver of the offending vehicle is a necessary party. But to hold that

the owner of the vehicle is vicariously liable, necessarily a finding will

have to be rendered about the negligence of his servant for which it is

not imperative to implead the driver as held by the Apex Court in


Machindranath Kernath Kasar's case (supra) in paragraph 30 and

the entire proceedings will not be vitiated or the owner is a joint

tortfeasor. The only aspect to be made clear is that when the driver is

not personally impleaded as a party, no award can be made against

him. This is the view taken by the Karnataka High Court in Patel

Roadways' case (ILR (2000) Kant. 3286) which we have already

discussed above.

      51. As far as the present case is concerned, even though in the

written statement the insurance company raised a contention that the

deceased is answerable for contributory negligence, that contention was

never pursued. No suggestion or question was put to P.W.1 in that

regard. The driver of the offending vehicle was not cited as a witness

on behalf of the insurance company and no attempt was made to

adduce any evidence even by trying to examine any independent

witnesses.    Therefore, it is clearly a case where the contention

regarding contributory negligence was not at all sought to be proved in

evidence. The judgment of the Tribunal will show that the owner and

the insurer alone are made liable to satisfy the award and not the driver.



This is clear from paragraph 19 of the judgment. It was held that

respondents 2 and 3 (i.e. the owner and insurer) are jointly and

severally liable to pay the amount of compensation. The Tribunal has

found that the second respondent is vicariously liable and the insurance

company is liable to indemnify the owner. It was also noticed that even

though there was another contention raised in the written statement

that the insured has violated the policy conditions, in order to

substantiate that contention the third respondent has not adduced any

evidence before the Tribunal. Therefore, it is strictly a case where no

award has been passed against the driver making him liable to satisfy

the claims of the claimants. In that view of the matter, the finding by

the Tribunal with regard to the negligence on the part of the rider of the

motor cycle is only to find the owner vicariously liable.

      52. As regards the finding regarding negligence also, as rightly

pointed out by the learned counsel for the claimants, the production of

Police charge-sheet is prima facie sufficient evidence of negligence. A

Division Bench of this Court in Pazhaniammal's case (2011(3) KLT

648) has addressed that question and has held as follows in paragraphs


7 and 8:

        "As a general rule it can safely be accepted that production of

        the police charge sheet is prima facie sufficient evidence of

        negligence for the purpose of a claim under S.166 of the Motor

        Vehicles Act. A system cannot feed itself on a regular diet of

        distrust of the police. Prima facie, charge sheet filed by a

        police officer after due investigation can be accepted as

        evidence of negligence against the indictee. If any one of the

        parties do not accept such charge sheet, the burden must be on

        such party to adduce oral evidence. If oral evidence is adduced

        by any party, in a case where charge sheet is filed, the Tribunals

        should give further opportunity to others also to adduce oral

        evidence and in such a case the charge sheet will pale into

        insignificance and the dispute will have to be decided on the

        basis of the evidence. In all other cases such charge sheet can

        be reckoned as sufficient evidence of negligence in a claim

        under S.166 of the Motor Vehicles Act. We mean to say that on

        production of such charge sheet the shifting of burden must

        take place. It is not as though we are not conscious of the

        dangers and pit falls involved in such an approach. But we feel

        that adoption and recognition of such practice would help to

        reduce the length of the long queue for justice before the

        Tribunals. The judicial recognition of the practice will help the


       Tribunals to ensure the optimum use of judicial time at their

       disposal for productive ventures. We do not intend to say that

       collusive charge sheets need be accepted. Wherever on the

       facts of a given case the Tribunals feel that the police charge

       sheet does not satisfy their judicial conscience, the Tribunals

       can record that the charge sheet cannot be accepted and can call

       upon the parties, at any stage, to adduce oral evidence of the

       accident and the alleged negligence. In such a case, the issue of

       negligence must be decided on the other evidence, ignoring the

       charge sheet."



Herein, through P.W.1, the charge sheet has been marked as Ext.A3.

The same, therefore, is prima facie sufficient evidence of negligence.

The onus of proof has been shifted to the insurance company and as

already found above, it is recorded in the "B" diary, that the third

respondent insurance company reported that there is no further

evidence.  Therefore,    the finding on negligence has been rightly

rendered by the Tribunal. Further, there is no contention in the written

statement of the insurance company that the driver is a necessary party.

The written statement was filed after the driver was deleted from the



party array.   Therefore, as regards non joinder of parties, no issues

have been sought to be framed on the part of the insurance company.

Hence, it is evidently a case where an objection regarding non joinder

of parties was not raised before the Tribunal. Even at a later stage

notice was not requested to be issued to the first respondent driver. In

Varghese Cherian's case (1960 KLT 1080) it was held by the learned

Single Judge that "a contention of non-joinder of parties, under Order I,

Rule 9 C.P.C. ought to be taken before the settlement of issues in the

case. If such a contention has not been taken in proper time it cannot

be entertained as a fresh plea in Second Appeal." Herein also, what we

find is that the only contention raised in the written statement is one

concerning the alleged contributory negligence of the deceased and not

that the driver is a necessary party and therefore we find that in the

appeal we will not be justified in accepting the said contention and we

cannot accede to the vehement plea raised by the learned Senior

Counsel for the insurance company for a remand of the matter.

      53. The decision of a Division Bench of this Court in National

Insurance Co. Ltd. v. Yohannan (1997 (2) KLT 771) was a case of



composite negligence wherein it was held that the Tribunal is

competent to apportion the liability between the wrong doers. Even

though the same is relied upon by the learned Senior Counsel, the

same may not have an application here.

     54. Now we will come to the claim for enhancement of the

quantum of compensation, in the appeal filed by the claimants. The

arguments are mainly that the deceased was          having a regular

employment in Qatar, that the amount of contribution has to be

assessed by converting the amount of salary received by him and that

he had great prospects even if he had come back to India and the

evidence of P.W.2is relied upon in this context. Learned counsel also

sought for enhancement of the claim awarded under different heads.

     55. The evidence of P.W.1is to the effect that the deceased was

an Air-craft Mechanic.    He was employed in Indian Navy from

1.11.1975 to 31.12.1986 as      Aircraft (Helicopter) Mechanic.   He

obtained voluntary retirement from Navy. He had attended the courses

like General Engineering, General Electricity and Aircraft Radio

Equipments, Theory of Flight (Fixed and Rotary wing Aircraft) Piston



Engine, Jet Engine, Turbo Prop. Engine, General and             Leading

particulars of various Aircraft Engines, etc.etc. According to her, he

was engaged during his service in Flight servicing, routine

maintenance, rigging of Aircraft and its control, fault diagnosis, defect

rectification, crack detection, first and second line servicing, aircraft

husbandary and corrosion, prevention maintenance, supervision of

associated ground support equipments, aircraft maintenance control

organisation etc. etc., i.e flight maintenance and servicing areas.

Ext.A6 is the certificate of Record of Service and discharge from

Indian Navy.      Ext.A7 series are certificates showing the courses

attended by him while he was serving Indian Navy. He entered service

in Qatar Emeri Air-force as Aircraft Mechanic and continued there for

13 years. Ext.A8 series are the passports produced to prove the same

and he had valid visa upto 12.4.2002 and but for his death it would

have been renewed. He came back to India on leave for three months

consequent on the death of his mother. Ext.A9 is the certificate

countersigned by Embassy of India (Doha) Qatar showing his salary as

4575 Qatar Riyal which is claimed to be        equal to Indian Rupee


55,000/-. Ext.A10 is the service certificate issued by Qatar Emeri Air-

force dated 4.12.2000 countersigned by Indian Embassy. It is also

claimed that even if he had returned back to India, he would have been

well employed as an Aircraft Technician.     Ext.A13 is the passport of

P.W.1which is produced to prove that she was also in Qatar and was

staying with him for some time. It is stated that he was maintaining

NRE Account No.11179 in Indian Overseas Bank, Pathanamthitta

Branch and Account No.1809 in State Bank of Travancore,

Pathanamthitta Branch. Ext.A15 is produced to show the transactions

between 1.4.2000 to 5.9.2000 in Indian Overseas Bank, Pathanamthitta

Branch and Ext.A16 is the certificate showing the exchange rate.

      56. The Tribunal has assessed various materials from paragraph

12 onwards. His date of birth was 20.5.1959, going by Ext.A6 which

also will prove that he was working in India Navy from 1.11.1975 to

31.12.1986 in Aviation Branch (Technical). For 14 years he has been

employed in Qatar as evident from Ext.A8 series passports.         The

exchange rate, going by Ext.A16, is Rs.12.25. Therefore, the Tribunal

has observed that as on the date of accident he was getting a monthly



salary of Rs.50,000/- from his job at Qatar. Ext.A7 will prove that he

has completed the Leading Air Craft Mechanic Qualifying course and

therefore the Tribunal found that he was a qualified Air Craft Mechanic

and he had served in Indian Navy and Qatar Air-force. Based on the

series of documents produced with regard to the maintenance of bank

account, it was held that the deceased was getting good salary in Qatar.

      57. P.W.2 is one Shri N.L Jacob who was working with the

deceased in Indian Navy and had been in Qatar also under the same

designation. After coming back from Qatar, he has been working in

Cochin Air Craft Maintenance Company and is getting Rs.52,250/- as

monthly salary. Exts.A18 to A22 are the documents concerning the

employments and salary, etc. of P.W.2. It will also support his case that

he had been working in Qatar Air-force. The Tribunal, in paragraph 15,

accepted the argument of the learned counsel for the insurance

company that the employment of the deceased was only on contract

basis and there was no security for employment. Accordingly, the

Tribunal held that he would have been working there at least for a

period of five years and would have been getting a monthly salary of



Rs.50,000/- which can be calculated to find out the contribution for

five years. It was also held that in the native place in Kerala he would

have been employed on his return and would have been obtaining at

least a sum of Rs.7,500/- per month. 15 has been adopted as the

multiplier. The average monthly income has been fixed at Rs.21,667/-

in that manner and the yearly contribution has been calculated as

Rs.2,60,000/- and after deducting 1/3rd for personal expenses, the

contribution to the family has been assessed at Rs.1,73,333/-. By

adopting the multiplier of 15, the loss of dependency has been

calculated at Rs.25,99,995/-.

      58. The Tribunal further granted a sum of Rs.15,000/- towards

loss of consortium and for loss of love and affection a sum of

Rs.20,000/- has been granted.       For loss of estate, an amount of

Rs.15,000/- has been granted.     Amounts have been awarded towards

medical expenses, pain and suffering, transport to hospital, damage to

clothing, bystander's expenses and funeral and allied expenses.

      59. Learned counsel for the claimants, by relying upon the

decision of the Apex Court in Puttamma's case (2014 (1) KLT 738 


SC) contended that split multiplier should not have been adopted. The

judgment in Jiju Kuruvila's case {(2013) 9 SCC 166} is relied upon

to contend for the position that the actual income on the date of death

in a foreign country will have to be reckoned. Learned counsel relied

upon the decision of a Division Bench of this Court in Valsamma's

case (2014 (1) KLT10) to contend for the position that even in case of

a contract employment, the income will have to be assessed properly in

the context of Indian standards and therefore the income obtained by

P.W.2should have been taken as a guidance.

      60. The decision of the Apex Court in Jiju Kuruvila's case

{(2013) 9 SCC 166} will show that the deceased was working as a

Manager in Freeman Management Corporation, New York Branch.

The evidence therein was to the effect that as per the conditions of

service he would have continued in service upto the age of 65 years.

There was evidence to show that the actual salary he was getting at

that point of time was 2500 US dollars equivalent to Rs.43,100/-. It

was found in paragraph 23 that the deceased would have continued in



service upto the age of 65 years.

     61. But herein, the evidence, even though is to the effect that the

deceased was in Qatar for a period of 14 years, regarding his

continuance for a long period in future there and as to the permanent

nature of employment, the evidence is not convincing which is the

view taken by the Tribunal also. Of course, his contract would have

been subjected to renewal and there was a chance for the same.

     62. A like case was considered by a Division Bench of this

Court in Valsamma's case (supra). The Division Bench was of the

view that in case of a permanent employment, income can be reckoned

accordingly. But in the case of a non permanent employment with

uncertainty regarding continuance, it is not safe to rely upon that

income for the purpose of assessing compensation under the head of

loss of dependency. It was held therefore that in such cases this Court

will have to assess the income of the person, in the context of Indian

standards, taking the probable income which he may have fetched if he

was working in India during the relevant time.

       63. Likelihood of termination of contract employment in Gulf


countries, therefore, looms large. But the background of the deceased

will show that he had served Indian Navy for a considerably long

period of 11 years and he had been in Qatar Air-force for a period of 14

years. Of course, learned counsel for the claimants raised a plea for

accepting the amount of salary obtained by P.W.2 in India which,

according to the learned counsel, would have been earned by the

deceased on his return to India. Being in the age group of 42, we are

also of the view that he would have been able to get a proper

employment here, in India.

      64. The question is whether the method adopted by the Tribunal

to quantify the remuneration at Rs.7,500/- for service in India could be

accepted. Even though vehement arguments have been raised with

regard to the consideration of a proper rate of increase for future

prospects, it can be done only by a proper guess work in the special

facts and circumstances of the case and on assessment of the

documentary evidence.

      65. It is submitted by the learned Senior Counsel for the

insurance company that going by the decision of the Apex Court in



Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 -

SC) the multiplier to be adopted is 14 instead of 15 taken by the

Tribunal herein. We will have to adopt 14 as the multiplier.         As

regards the monthly income for the remaining years              fixed at

Rs.7,500/-. we are of the view that it requires a reasonable

enhancement, as the same is too low.            Going by his academic

background as well as experience, he would have earned more income

in India if placed in an equivalent post. According to us, a reasonable

amount of Rs.12,000/- can be fixed as salary on an average if he was

employed in India for the remaining 9 years. Therefore, the yearly

income by combining the two will be Rs.3,06,857/- and monthly it will

come to Rs.25,570/- which we adopt as it is reasonable, fair and just.

After deducting 1/3rd for personal expenses, the contribution can be

fixed and by adopting 14 as the multiplier, the total compensation

towards loss of dependency will come to Rs.28,64,000/- (Rs.25,570/- x

12 x 14 x 2/3). In the light of the decision of the Apex Court in Rajesh

v. Rajbir Singh (2013 (3) KLT 89 SC) we award a sum of Rs.1 Lakh

towards compensation for loss of consortium and another sum of Rs.1


Lakh towards loss of love and affection.           The amount fixed as

compensation under the head of loss of estate, viz. Rs.15,000/- is too

low and we award an amount of Rs.1 Lakh under this head. For funeral

expenses an amount of Rs.25,000/- is awarded.

     66. Accordingly, the total compensation is refixed in the

following manner:

           Head of claim         Amount awarded by Modified award passed
                                   the Tribunal       by this Court

     Loss of dependency                    2599995              2864000

     Loss of consortium                      15000               100000

     Loss of estate/expectancy               15000               100000

     Loss of love and affection              20000               100000

     Medical     and    treatment
     expenses                                31500                31500

     Pain and suffering                      20000                20000

     Transportation expenses and
     damage to clothing                       1500                 1500

     Bystander's expenses                      500                  500

     Funeral and allied expenses             10000                25000

     Total                                 2713495              3242500


(Rupees Thirty-two lakhs forty-two thousand and five hundred only)

The enhanced amount of compensation will carry interest at 9% per

annum from the date of petition till realisation. The amount will be

shared equally by the claimants-appellants by M.A.C.A. No.2974/2009.



     67. M.A.C.A. No.1075/2009            is dismissed and M.A.C.A.

No.2974/2009 is allowed.      The insurance company is directed to

deposit the amount of compensation less the amount already deposited,

within a period of three months and we permit the first appellant to

withdraw her share. We permit the second claimant also to withdraw

her share if she has become a major now and if otherwise, the amount

in her favour will be deposited in a nationalised bank till she attains

majority.

     The parties are directed to suffer their costs in the appeals.


                      (T.R. RAMACHANDRAN NAIR, JUDGE.)




                                 (P.V. ASHA, JUDGE.)

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