(1.) This order shall govern the disposal of M.A. No. 260 of 1998, Kirti v. Rajendra and M.A. No. 261 of 1998, Tejubai v. Rajendra, as both appeals are directed against the judgment and award dated 20.11.1997 passed by Motor Accidents Claims Tribunal, West Nimad, Mandleshwar, in Claim Case No. 7 of 1996.

(2.) The case of the claimants-appellants was that on 7.6.1995, they were travelling in jeep No. MP 10-9860 owned by the respondent No. 1 and insured with respondent No. 3. The respondent No. 2 drove it rashly and negligently. There was collision between this vehicle and a truck coming from the opposite direction at high speed, as a result of which Tejubai sustained injuries on her right hand while Kirti got her right leg fractured. They were admitted in T. Choithram Hospital and Tejubai's right hand and Kirti's right leg were amputated. Tejubai had filed Claim Petition No. 9 of 1996 seeking compensation of Rs. 8,05,000. Kirti had claimed Rs. 7,30,000 as compensation in Claim Case No. 7 of 1996 against the respondents. The respondents resisted the claim and pleaded that the claim was not maintainable as the owner, driver and insurer of the truck were not made party. The Tribunal found that the drivers of both vehicles were equally negligent for the accident and awarded compensation of Rs. 1,13,000 to Tejubai and Rs. 1,05,000 to Kirti but directed the respondents to pay 50 per cent of the above sum with interest at the rate of 12 per cent per annum. The claimants have preferred these appeals for enhancement of compensation amount.

(3.) Mr. Rajpal, learned counsel for the appellants, submitted that the Tribunal fell in error in holding that the respondents were liable to pay 50 per cent of the compensation amount. He also contended that the amount of compensation is also on lower side. On the other hand, Mr. Mandloi, learned counsel for the respondents, contended that the amount awarded to the claimants is on higher side and it deserves reduction. He further submitted that the Tribunal rightly found the respondents liable to pay 50 per cent of the compensation amount.

(4.) We considered the rival contentions made by learned counsel for both sides and perused the impugned award passed by the learned Tribunal and evidence on record. It has come in the evidence of Bhawani Singh, CW 2, Tejubai, CW 3, and Lokendra Singh, CW 4, that the respondent No. 2 was driving the jeep at a very high speed. At about 2.30 a.m. one truck came from opposite direction at high speed and they collided with each other. The Tribunal discussed the evidence on record and rightly held that the accident occurred due to rash and negligent driving of both the vehicles.

(5.) Now, we come to the adequacy of the amount of compensation. It has come in the evidence of Tejubai that she sustained injuries in her right hand, she was admitted in T. Choithram Hospital where her right hand was amputated. She produced cash memo Exhs. P-1 to P-32. According to her, Rs. 30,000 to Rs. 40,000 were spent in her treatment. She was not in a position to do her household work, therefore, she had to engage a maid servant on a monthly salary of Rs. 700. The Tribunal awarded Rs. 17,000 for medical expenses. It assessed the income of Tejubai at Rs. 500 per month and taking her age to be 35 years, applied the multiplier of 16 and determined her future loss of income at Rs. 96,000 and awarded total amount of compensation of Rs. 1,13,000. In our opinion, the amount of compensation of Rs. 1,13,000 cannot be said to be on lower side, it is just and reasonable. Tejubai deposed that Kirti sustained injury on her right leg. It was amputated from below knee in T. Choithram Hospital. She spent about Rs. 40,000 in her treatment. She has become permanently disabled and it is very difficult for her to marry. The Tribunal taking into consideration the cash memos and other documents awarded Rs. 18,500 for medical treatment. It assessed future loss of income at the rate of Rs. 400 per month and applied multiplier of 18 and worked out compensation at Rs. 86,400 and after adding Rs. 18,500, the amount of compensation comes to Rs. 1,05,000. In our opinion, the amount of compensation is just and reasonable and does not warrant interference.

(6.) Now, the question for consideration is whether the Tribunal was wrong in directing the respondents to pay 50 per cent of the award amount. Mr. Rajpal, learned counsel for the appellants, placing reliance on the decision of Division Bench of this court in case of Gujarat State Road Trans. Corpn. v. Shardabai, 1997 ACJ 649 (MP), contended that the accident occurred due to composite negligence of the jeep driver and the truck driver. They were joint tortfeasors, therefore, the claimants could recover damages from any of them. In our opinion, the Tribunal fell in error in apportioning the compensation amount. In case of contributory negligence, the court can determine the extent of negligence and on that basis amount of compensation can be apportioned. This is not a case of contributory negligence as the injured persons were not responsible for the accident. It was a case of composite negligence. This court in case of Manjula Devi Bhuta v. Manjusri Raha, 1968 ACJ 1 (MP), held as under:

"Where a person is injured without any negligence on his part but as a combined effect of the negligence of two other persons, it is not a case of contributory negligence but is a case of what is styled as 'composite negligence'. If due to the negligence of 'A' and 'B', 'Z' has been injured, 'Z' can sue both 'A' and 'B' for the whole damage. There is a clear distinction between 'contributory negligence' and, what is termed as 'composite negligence'. The term 'contributory negligence' applies solely to the conduct of a plaintiff. It means that there has been an act or omission on his part, which has materially contributed to the damage. It is now well settled that in case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But, in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence."

From the above decision, it is clear that the claimants were at liberty to recover damages from the driver and owner of both the vehicles or any one of them. Under such circumstances, the Tribunal fell in error in making apportionment of the compensation amount and the claimants are entitled to recover entire amount of compensation from the respondents.

(7.) In the result, the appeals succeed partly, the award is modified and it is directed that the respondents shall pay jointly and severally Rs. 1,13,000 to Tejubai and Rs. 1,05,000 to Kirti with interest at the rate of 12 per cent per annum (after adjusting the amount already deposited with proportionate interest) from the date of filing of claim petitions, i.e., 18.9.1995 till realisation. No order as to costs. Appeals partly allowed