1. Feeling aggrieved and dissatisfied with the judgment and order dated 9.11.2009 passed by the Motor Accident Claims Tribunal (Main), Sabarkantha at Himatnagar in MACP no.1388 of 2005, the appellants ­ original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”).

2. Following noteworthy facts emerge from the record of the appeal:­

That, the accident occurred on 26.9.2005 at around 08:45 a.m. near Madhavgadh Patiya Talvadi. It is the case of the appellants – original claimants that the deceased Kanchanba, her daughter and her brother were travelling in a jeep bearing registration no. GJ­1 AP­7189 and when the said jeep was passing through Madhavgadh Patiya Talvadi, a truck bearing registration no. GJ­9 V­8732 being driven in a rash and negligent manner and dashed with the jeep because of which the jeep run away in the road side and Kanchanba sustained serious injuries and succumbed to the same. An FIR was lodged with the jurisdictional Police Station and the original claimants filed the claim petition under Section 166 of the Act and claimed compensation of Rs.5,00,000/­. The appellants­ original claimants have also relied upon the oral deposition of the appellant no.1 at Exh.41 and also adduced evidence, such as, FIR

Exh.30, Panchnama Exh.31, inquest Panchnama Exh.35, postmortem report Exh.36, charge­sheet Exh.37, insurance policy of truck Exh.45. It was the case of the appellants that the deceased – Kanchanba was housewife and was earning Rs.5,000/­ per month from the agriculture work and animal husbandry. The Tribunal did not believe the oral version, but determined the income of the deceased at Rs.1,500/­ per month and applying multiplier of 17, after deducting one­third, awarded a total sum of Rs.2,04,000/­ under the head of future loss of dependency. The Tribunal was also pleased to grant Rs.23,000/­ under different conventional heads including funeral expenses and thus, awarded total compensation of Rs.2,27,000/­ with 6% interest per annum. However, while partly allowing the claim petition, the Tribunal came to the conclusion that the drivers of both the vehicles were negligent and attributed negligence of the truck driver to the extent of 70% and that too, of the jeep to the extent of 30%. It is further provided by the Tribunal that the insurance Company of the truck and the owner of the jeep may satisfy the award in the same ratio. Being aggrieved by the same, the present appeal is preferred by the appellants­ original claimants.

3. Heard Mr. R.K. Mansuri, learned advocate for the appellants ­ original claimants and Mr. Palak Thakkar, learned advocate for the insurance Company. Though served, no one appears for the other respondents.

4. Mr. R.K. Mansuri, learned advocate for the appellants ­ original claimants has raised the following contentions:­

4.1 That, the Tribunal has committed an error in determining the income of the deceased at Rs.1,500/­ only. According to Mr. Mansuri, the dictum amount would be Rs.3,000/­ per month as the deceased was engaged in the vocation of animal and husbandry.

4.2 Mr. Mansuri further contended that thereafter Tribunal has also committed an error in not considering the prospective income of the deceased. Mr. Mansuri also contended that even if the age of the deceased is considered as 35 as per the Panchnama, however, following the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, [LQ/SC/2017/1578] the appellants would be entitled to multiplier of 16.

4.3 Mr. Mansuri further contended that the Tribunal has awarded a meager amount of Rs.23,000/­ under different conventional heads, which should be enhanced to Rs.70,000/­ as per the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra).

4.5 Mr. Mansuri further submitted that the Tribunal has also committed an error, more particularly, having come to the conclusion that the drivers of both the vehicles are composite negligence by bifurcating the amount as per the accident of negligence as determined by the Tribunal. It is submitted that the appellants should be at liberty to recover from either of the tort­feasors as the liability is joint and several. On the aforesaid grounds, it was therefore contended that the appeal may be allowed and the impugned judgment and award may be modified.

5. Mr. Palak Thakkar, learned advocate for the insurance Company has opposed this appeal. It is submitted that in absence of any evidence and considering the date of the accident being 26.9.2005, the Tribunal has committed no error in determining the income of the deceased at Rs.1,500/­.

5.1 Mr. Thakkar also contended that the compensation under all other heads are in accordance with law prevailing on the date of the accident and as per the correct interpretation and appreciation of the evidence on record.

5.2 Relying upon the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (supra), Mr. Thakkar contended that even if it is construed that the insurance Company of the truck and the jeep involved in the accident are jointly and severally liable in case if the total amount of compensation as awarded by the Tribunal as well as that may be enhanced by this Court is recovered by the appellants from the insurance Company, the insurance Company should have liberty to recover the same from the owner of the jeep. On the aforesaid grounds, Mr. Thakkar submitted that even otherwise, on merits, no interference is called for in exercise of its appellate jurisdiction of this Court and the appeal deserves to be dismissed.

6. No other or further submissions, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

7. I have considered the submissions made and also perused original paper book as well as the original record and proceedings. As far as the income is concerned, though there is no evidence on record, the appellants ­ original claimants have brought on record that the deceased was engaged in agriculture work as well as in animal husbandry. In Villages, women are engaged in animal husbandry and therefore, the assertion of the appellants that the deceased had income is well­founded. However, in absence of any evidence in order to arrive at the notional figure, if the minimum wages standard of skilled workmen is adopted as a basis, the income of the deceased can safely be determined at Rs.2,500/­ per month. As far as the applicable multiplier is concerned, as per the Panchnama, the age of the deceased was 35 years and hence, appropriate multiplier would be 16. Over and above the same, the appellants would also be entitled to prospective income to the tune of 40%. In addition to this, the appellants would also be entitled to additional compensation of Rs.70,000/­ under different conventional heads following the ratio laid down by the Hon'ble Apex Court in the case of Pranay Sethi (supra). Having come to the aforesaid conclusion therefore, the appellants­original claimants would be entitled to compensation under the head of loss of future dependency as under:­

8. In addition to the same, the appellants would be entitled to additional compensation of Rs.70,000/­ under different conventional heads including funeral expenses and thus, the appellants would be entitled to total compensation of Rs.5,17,936/­ with interest at the rate of 6% per annum from the date of the claim petition till its realization. As the Tribunal has awarded a sum of Rs. 2,27,000/, the claimants would be entitled to additional compensation of Rs.2,90,936/­ with interest at the rate of 6% from the date of the filing of the claim petition till its realisation. Once the Tribunal has arrived at a conclusion that the respondents herein are jointly and severally liable, in the operative part of the award, the Tribunal has wrongly bifurcated the amount awarded. It would be open for the insurance company to first pay and then to recover the share from the owner of the jeep. Following the judgment of the Hon'ble Apex Court in the case of Khenyei Vs. New India Assurance Company Limited, (2015) 9 SCC 273, [LQ/SC/2015/708] as a joint tort­feasor, liability of the respondents would be jointly and severally and it would be open for the appellants to recover the same from anyone of the tort­feasor and one tort­feasor can recover the amount from the other tort­feasor and while doing so, it would be open for such joint tort­feasor to follow the procedure as provided by the Hon'ble Apex Court in the case of the Oriental Insurance Company Ltd. Vs. Nanjappan & Ors., reported in (2004) 13 SCC 224 [LQ/SC/2004/225] .

9. The appeal is thus allowed. The impugned judgment and award is modified. The insurance Company shall deposit the additional amount with interest as awarded by this Court within a period of three months from the date of receipt of this judgment and order. Registry is directed to send the original record and proceedings back to the Tribunal forthwith. However, there shall be no order as to costs.