S.S. Chauhan, J.This appeal has been filed against the judgment and award dated 21.10.2008, awarding a compensation of Rs. 40,09,133 along with interest at the rate of 7.5 per cent per annum from the date of petition, i.e., 6.2.2007 till payment (sic within three months), failing which the insurance company has been directed to pay penal interest at the rate of 9 per cent per annum. The facts, in short, are that deceased, aged about 39 years, who was a Textile Engineer and posted as Marketing Manager in Reliance Industries Ltd. at Gurgaon, Haryana, was travelling on 25.6.2005 in a Hyundai Santro car bearing registration No. UP 58-A 3600. The car was being driven by driver Sarveshwar Tripathi and one employee of his company, namely, Sharad Nigam was also travelling along with him in the said car. At about 11.30 p.m., when the car was on Faizabad-Barabanki Road at village Udhauli near Hotmix Plant, a fallen tree was obstructing the road and driver of the car moved towards right on a narrow strip of the road in a rash and negligent manner, but in his attempt, he failed and collided head-on with a rashly driven truck. In the accident, severe injuries were sustained by the driver and two passengers of the car, in which the deceased Shyama Pal and driver Sarveshwar Tripathi succumbed to their injuries on the spot. Injured person, namely, Sharad Nigam lodged an F.I.R., which was registered as Case Crime No. 129 of 2005 under sections 279 , 337 , 338 and 304-A , Indian Penal Code, at Police Station Safdarganj, District Barabanki.

2. During the course of investigation, the truck owner and the driver could not be traced out and so the police submitted a final report under section 173 , Criminal Procedure Code. The claimants claimed compensation under various heads. Thereafter, respondent No. 1, being the owner of the car, admitted the factum of accident and also the death of the deceased and the driver of the offending car.

3. Respondent No. 2 has contested the case and denied the accident. In para 31 of the written statement, it has been alleged that the accident had not taken place on account of negligence of the driver of Hyundai Santro car bearing registration No. UP 58-A 3600, but pleaded composite negligence of the car and the truck. It was further alleged that deceased was illegal occupant of a private car and the insurance company is not liable for his death in an accident while travelling in that car.

4. In all, six issues were framed by the Tribunal and after appreciating the evidence on record, the Tribunal came to the conclusion that the evidence on record went to establish that there was negligence of the driver, who was driving the car rashly and negligently and in spite of instructions given by Sharad Nigam, he did not pay any attention and met with an accident. PW. 2 and PW. 3 have stated about negligence of the driver driving Hyundai Santro car, and in these circumstances, Tribunal after considering the evidence in the form of F.I.R., site plan, technical examination report, final report, inquest report, post-mortem report and other certificates in the form of salary certificates, photocopies of passport, three mark-sheets, one admit card, death certificate, income tax Form-16, private car insurance B policy format and C.T.C. statement, proceeded to hold that the driver of the car was driving negligently, on account of which death occurred and hence the insurance company is liable to pay compensation.

5. Before this court, learned counsel for the appellant has submitted that the respondents cannot turn around from their admission initially that the truck driver was driving rashly and negligently and thereafter turn around and say that the driver of the car was negligent. Learned counsel for the appellant has placed reliance upon a judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Others, . He further submits that the fact whether the car driver was driving the car in a rash and negligent manner, is not established on the basis of evidence on record. Learned counsel has also submitted that lesser multiplier should be applied in the case of respondents and instead of 16, it should be 15. He also submits that the award made is too high and is liable to be reduced. Learned counsel for the appellant has also submitted that penal interest should not be awarded from the date of application, but from the date of default.

6. The learned counsel for the appellant has also placed reliance upon a judgment of the Apex Court in the case of Lachoo Ram and Others Vs. Himachal Road Transport Corpn. and Another, , in support of his submission that unless and until there is evidence on record to prove that the bus in the said case was being driven rashly and negligently, mere involvement of the bus will not make Himachal Road Transport Corporation liable for payment.

7. The learned counsel for the appellant has also submitted that the wife of the deceased has got compassionate appointment and she was an earning member and salary was being paid to her by the company in lieu of compassionate appointment.

8. Learned counsel for the respondents, on the other hand, has submitted that the evidence of PW. 2 and PW. 3 is sufficient to prove that the car was being driven rashly and negligently by the driver and it was also taken on the wrong side, i.e., on the right side and as a result of which it collided with the truck coming from opposite direction. Learned counsel has also submitted that the Tribunal, while appreciating the evidence, has recorded a specific finding in this regard that the driver of the car was negligent and he was also instructed by one of the occupants, Sharad Nigam who was travelling in the said car, to drive cautiously and slowly, but no attention was paid by him.

9. It has been specifically stated in the claim petition itself that the driver of the car took the vehicle on wrong side, i.e., on the right side and he also drove the car carelessly and negligently and the evidence of PW. 2 and PW. 3, who were present on the spot, goes to indicate about the negligence of the car driver, therefore, in these circumstances, the learned counsel for the respondents submits that finding recorded by the Tribunal cannot be faulted in any manner. Learned counsel further submits that it was a case of composite negligence and it is open for the claimants to claim against all or any of the joint tortfeasors for full compensation for the injuries suffered or death caused as liability of joint tortfeasors is joint and several. The said principle has been followed in the present case and learned counsel for respondents has placed reliance upon me judgments reported in Pawan Kumar and Another etc. Vs. Harkishan Dass Mohan Lal and Others, ; U.P. State Road Transport Corporation Vs. Smt. Rajani and Others, ; T.O. Anthony Vs. Karvarnan and Others, and A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, .

10. Learned counsel for the respondents has also submitted that so far as the question of compassionate appointment is concerned, the law has been settled in this regard in the cases of Vimal Kanwar and Others Vs. Kishore Dan and Others, and Bhakra Beas Management Board Vs. Smt. Kanta Aggarwal and Others, ; and in both the cases, it has been held that if any compassionate appointment is given, that will not be counted towards the compensation nor the same can be a hurdle in payment of compensation to the claimants.

11. Learned counsel for the respondents has agreed to the proposition that the payment of penal interest is to be made from the date of default, rather than from the date of application.

12. We have heard learned counsel for the parties and perused the record.

13. The first argument of learned counsel for the appellant is that the claimants have taken a U-turn from the initial case set up in the claim petition and thereafter they have alleged negligence of the car driver. Initially, the allegation was made against the truck driver by stating that the driver was driving the vehicle rashly and negligently, but in para 23-B of the claim petition, it has been specifically stated that the driver took the vehicle on wrong side, i.e., on right side and tried to take away the vehicle negligently. Same averment has been made in para 23-A, whereas PW. 2 and PW. 3, who are eyewitnesses, have stated that the driver of the car was negligent in driving the car and he also drove the car rashly and took it to the right side, on account of which it collided head-on with the truck. The F.I.R. was lodged and later on final report was submitted and the truck driver could not be traced out.

14. Learned counsel for the appellant, therefore, placing reliance upon the judgment in the case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Others, , has submitted that a new case or a contradictory case cannot be set up by the claimants and neither the award can be given on the basis of the aforesaid allegations.

15. The argument of learned counsel for the appellant appears to be a little bit misconceived on account of the fact that paras 23-A and 23-B of the claim petition are very clear, wherein a specific averment has been made in regard to negligence of Hyundai Santro car driver, which has been further substantiated by the evidence of PW. 2 and PW. 3. Therefore, the reliance placed by the learned counsel for the appellant upon the judgment in the case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Others, , is altogether misconceived, as in the said case it was found by the Apex Court that the High Court recorded a finding that the first information report was not legally proved and, therefore, the driver of the Tempo Trax should be held guilty of driving rashly and negligently. The Apex Court found that in the claim petition itself, there was a reference of lodging of the first information report which too was based on the basis of F.I.R. The Apex Court also found that the factum of accident could also be proved from the first information report and once a part of the contents of the document is admitted in the evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. In the said case, F.I.R. was admitted and, therefore, the Honble Apex Court held that the finding recorded by the High Court was not in accordance with law. In the said case, reliance was placed by both the parties on a part of the same document.

16. On the aforesaid reasoning, the case-law relied upon by learned counsel for the appellant, stating that there was no allegation of negligence against Hyundai Santro car driver initially, is against the evidence on record and, therefore, the said argument is rejected.

17. The accident has taken place on account of rash and negligent driving of Hyundai Santro car driver, as a result of which Shyama Pal died. The finding recorded by the Tribunal, therefore, in this regard, is accepted and confirmed.

18. The next argument of the learned counsel for the appellant that it is a case of composite negligence but later on, it is stated to be a case where the truck driver has been alleged to be negligent and, therefore, the liability cannot be fixed upon the insurance company, has to be appreciated in the light of the law laid down by the Honble Supreme Court in the cases stated hereinabove, wherein the principles have been laid down as regards composite negligence, in which it has been found by the Apex Court that the drivers and owners of both the vehicle were jointly and severally liable to pay compensation.

19. The Apex Court in the case of A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, , has held that if both the vehicles are rash and negligent and the liability is joint and several, the injured person has the choice of proceeding against all or any of them and any one opposite party may be liable to pay the entire amount. In this case, the Apex Court followed the judgment in the case of T.O. Anthony Vs. Karvarnan and Others, .

20. A Division Bench of this court in the case of U.P. State Road Transport Corporation Vs. Smt. Rajani and Others, , has considered the concept of contributory and composite negligence, liability of joint tortfeasors, option of the claimant and claim against any one of them. The Division Bench has held that when accident takes place on account of composite negligence of two or more motor vehicles, the claimant is entitled to proceed against all or any of the joint tortfeasors for full compensation for the injuries suffered or death caused as the liability of joint tortfeasors is joint and several.

21. The Apex Court in paras 7 and 8 of the judgment in the case of Pawan Kumar and Another etc. Vs. Harkishan Dass Mohan Lal and Others, , held as under:

"(7) Where the plaintiff-claimant himself is found to be a party to the negligence, the question of joint and several liability cannot arise and the plaintiffs claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony Vs. Karvarnan and Others, and followed in A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, . Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted hereinbelow:

xxx xxx xxx

(8) In the present case, neither the driver/owner nor the insurer has filed any appeal or cross-objection against the findings of the High Court that both the vehicles were responsible for the accident. In the absence of any challenge to the aforesaid part of the order of the High Court, we ought to proceed in the matter by accepting the said finding of the High Court. From the discussions that have preceded, it is clear that the High Court was not correct in apportioning the liability for the accident between drivers/owners of the two vehicles."

22. In the case of A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, , in paras 10 and 11, the Apex Court held as under:

"(10) Composite negligence refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand, where a person suffers injury, partly due to negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of negligence on his part but the damages recoverable by him in respect of the injuries shall stand reduced in proportion to his contributory negligence.

(11) Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured-claimant himself was negligent, then it becomes necessary to consider whether the injured-claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore, where the injured is himself partly liable, the principle of composite negligence will not apply nor can there be an automatic inference that the negligence was 50:50 (sic) as has been assumed in this case. The Claims Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."

23. The observation of the Apex Court in paras 6 and 7 of the judgment in the case of T.O. Anthony Vs. Karvarnan and Others, , reads as under:

"(6) Composite negligence refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand, where a person suffers injury, partly due to negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.

(7) Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured-claimant himself was negligent, then it becomes necessary to consider as to whether injured-claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of composite negligence will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Claims Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided the confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."

24. Thus, from the aforesaid case-laws, we find that the claimants are entitled to claim compensation amount against any of the vehicles, i.e., either Hyundai Santro car or the truck which collided with Hyundai Santro car.

25. We, therefore, conclude that the appellant is responsible for payment of compensation, as the appellants liability is joint and several being a joint tortfeasor.

26. Learned counsel for the appellant has argued that the claimants wife has been given compassionate appointment and, therefore, the said amount is to be deducted from the compensation awarded to the claimants, but we find that the aforesaid argument of learned counsel for the appellant cannot be sustained on account of two decisions of the Apex Court, wherein it has been held that if any person has been given post-retiral benefits and compassionate appointment, then those benefits are not to be counted. The Supreme Court in the case of Bhakra Beas Management Board Vs. Smt. Kanta Aggarwal and Others, , proceeded to rely upon the judgment in the case of Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, , wherein the same principle has been laid down. In the said case, the Supreme Court came to the conclusion that compassionate appointment or any post-retiral dues given, cannot be counted towards compensation on account of accidental death and so far as the accidental death is concerned, it cannot be said that compensation received on account of said death is the amount earned out of ones labour or contribution towards ones wealth, savings, etc. either for himself or for his family, which such person knows under the law, has to go to his heirs after his death either by succession or under a Will said to be the pecuniary gain. Same principle has been laid down in the case of Vimal Kanwar and Others Vs. Kishore Dan and Others, , wherein the Apex Court after relying upon the case of Helen C. Rebello (supra), in para 20 held as under:

"(20) The second issue is whether the salary receivable by claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as pecuniary advantage liable for deduction

Compassionate appointment can be one of the conditions of service of an employee, if a scheme to that effect is framed by employer. In case the employee dies in harness, i.e., while in service leaving behind the dependants, one of the dependants may request for compassionate appointment to maintain the family of the deceased employee who dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of ones death and has no correlation with the amount receivable under a statute occasioned on account of the accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in the normal course, due to illness, and to maintain the family of the deceased one of the dependants may be entitled for compassionate appointment but that cannot be termed as pecuniary advantage that comes under the periphery of the Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act."

27. In view of the law propounded by the Apex Court hereinabove, we find that the aforesaid argument of the counsel for the appellant is not tenable and is rejected.

28. The third argument of learned counsel for the appellant that lesser multiplier should be applied, is also not tenable, as the multiplier of 16 between age 35 and 40 has been applied, which is the correct multiplier which has been applied and, therefore, the argument of learned counsel for the appellant to reduce the multiplier to 15, cannot be accepted.

29. The last argument of the learned counsel for the appellant has some force, as it has been submitted that penal interest cannot be awarded from the date of application, but it has to be awarded from the date of default of payment.

30. The Claims Tribunal by the impugned award has directed that 7 1/2 per cent interest should be paid from the date of application till the payment is made within a period of three months and in case the payment is not made within the aforesaid period, penal interest at the rate of 9 per cent per annum shall be paid.

31. We are in agreement with the aforesaid argument and we find that the respondents will be entitled for penal interest from the date of default rather than from the date of application.

32. The appeal is partly allowed to the aforesaid extent. The other points raised by the learned counsel for the appellant fail and are hereby rejected.