JUDGMENT N.M. Kasliwal, J.
1. All the above appeals are directed against the same judgment of the learned Single Judge dated February 27, 1985, a such they are disposed of by one single order.
2. Brief facts of the case are that a motorcycle No. DHT 2547 driven by Arvind Kumar met with an accident with Truck No. RJA 2936 driven by Ram Karan and owned by Ismail and Madan Lai on October 10, 1977 at 10 am. near Mahuwa Bus-stand. Prem Prakash, Ashok Kumar and Anand Kumar were pillion riders of the motor-cycle. In this accident Prem Prakash, Arvind Kumar and Ashok Kumar died on the spot after falling from motor-cycle. The truck was insured with M/s. United India Fire and General Insurance Company and the motor-cycle was insured with National Insurance Company. Three Claim Petition Nos. 28/78, 35/78 and 36/78 were filed by the respective legal representatives of deceased Arvind Kumar, Ashok Kumar and Prem Prakash. Since all the claims related to one accident, the three claims were consolidated and one set of witnesses was examined by the trial Court. A consolidated judgment was given by the Tribunal on January 31, 1983, dismissing all the three claim petitions on the ground that no such accident happened with the truck and the claimants failed to prove that there was any collision between the truck and the motor-cycle. Three appeal No. 90/83, 124/83 and 125/83 were filed by the claimants of all the three deceased. Learned Single Judge set aside the findings of the tribunal and held that the accident of the motor-cycle had taken place on account of collision of the truck in question. Learned Single Judge thus allowed the appeals and also held that there was negligence of the driver of the truck primarily and since the driver of the motor-cycle took four persons, it was the case of composite negligence. It was held that in case of composite negligence compensation can be realised by the claimants from anyone of the two and it is not necessary to apportion the liability. Learned Single Judge in the case of deceased Ashok Kumar allowed Rs 60,000/- in the case of Arvind Kumar, Rs. 30,000/- and in the case of Prem Prakash Rs. 24,000/-, to their legal representatives respectively. It was also held by the learned single Judge that liability in each case of the United Insurance Company would be limited to Rs. 50,000/- but the liability of the National Insurance Company in the cases where it his been made liable, would be unlimited. It was also held by the learned Single Judge that in Arvind Kumar's case National Insurance Company was not a party in the claim petition as such the liability would be only of United India Fire and General Insurance Company in addition to that of driver Ram Karan and owner Ismail. It was also held by the learned Single Judge that under the Law of Torts nothing has been shown that the compensation could have been claimed by the claimants from the legal representatives of deceased Arvind Kumar, who was driving the motor-cycle but died in the same accident. The legal representatives of deceased Arvind Kumar thus could not be made liable for the compensation. Aggrieved against the judgment of the learned Single Judge 8 special appeals were filed. Special Appeals Nos. 90, 91 and 92 of 1985 have been filed by the United Insurance Company. Special Appeals Nos. 82/85 and 1/86 have been filed by the National Insurance Company and Special Appeals No. 7/86, 9/86 and 34/86 have been filed by Ram Karan and Ismail Driver and Owner of the truck in question. Cross-objections have also been filed by the claimants and legal representatives of all the deceased.
3. Mr. Hari Mohan Bhargava, appearing on behalf of United India Insurance Company argued that the evidence on record established that although Truck No. RJA 2936 was registered in the name of Ismail and insured with United India Insurance Company but Shri Ismail had already sold the truck to Madan Lai on a date prior to the date of accident. It has been submitted that Madan Lai in his written statement and in his evidence before the Tribunal had admitted that he had purchased the truck from Ismail. It was submitted that in the face of such over-whelming evidence on record learned Single Judge erred in observing that the sale in favour of Madan La] had not been proved. It was thus submitted that when the vehicle had already been sold prior to the accident and possession was also handed over to Madan Lai, the policy had lapsed with the transfer of the vehicle. It was further argued that the transfer of the vehicle in (he records of the registering authority was not a condition precedent for the purpose of awarding compensation when the real owner could have been found out by the Court. The sale of a vehicle is not governed by Section 54 of the Transfer of Property Act but it being movable property is governed by the provision of the Sales of Goods Act. In the instant case there was evidence that the truck was being plied for the benefit of Madan Lai and as such at the time of accident Ismail had left no interest in the vehicle. It was further argued that at the time of accident the truck was being driven in the employment, control and for the benefit of Madan Lai. It was also argued by Mr. Bhargava that it was proved beyond any manner of doubt that the driver of the motor-cycle was negligent in taking 4 persons on the motor cycle and as such the truck-driver could not have been made liable for the composite negligence.
4. It was also submitted by Mr. Bhargava, that the United India Insurance Company has been unnecessarily put to heavy burden of huge interest. Copy of the judgment had been supplied to the appellant in the first week of October, 1985 and as such the making of any payment within three months failing which awarding interest at the rate of 12 per cent on the amount awarded cannot arise in the present case.
5. Mr. Rastogi appearing on behalf of Ram Karan and Ismail argued that the learned Single Judge committed an error in reversing the finding of the Tribunal, it was argued that it was proved by over-whelming evidence placed on record that there was no collision between the truck in question and the motor-cycle. The motor-cycle was driven at a high speed and it fell into the ditch on account of negligence of Arvind Kumar, who was driving the motor cycle and no accident had occurred by the truck and as such his clients can not be held liable for any compensation.
6. It may be mentioned at this stage that cross-objections for increasing the quantum of punishment have also been filed by the legal representatives of the deceased.
7. Mr. P.C. Jain appearing on behalf of the claimants contended that the plea raised by the United India Insurance Company regarding transfer of ownership of the truck is wholly untenable in view of Section 96 of the Motor Vehicles Act, 1939. An objection was raised that special appeals were not maintainable as the award given by Motor Accident Claims Tribunal is neither a judgment nor a decree under the provisions of Civil Procedure Code, 1908 or under the provisions of section 18 of the Rajasthan High Court Ordinance, 1949. It was argued by Mr. Jain that the interest @ 12 per cent per annum ought to have been allowed on the enhanced amount of compensation from the date of claim petitions. It was also argued that the learned Single Judge in the case of Ashok Kumar held that he happened to be a boy of 21 years and his earning was deemed to be Rs. 395/- per month. Learned Single Judge allowed Rs. 195/- per month to be spent on his own expenses end thus held a saving of Rs. 200/- in his case. By applying a multiplier of 25 an amount of Rs. 60,000/- by way of compensation has been allowed in his case. On the other hand, learned Single Judge in the case of Arvind Kumar held that he happened to be a boy of 22 years and his income was Rs. 700/- per month (Rs. 500/-+Rs. 200/- Motor-cycle allowance). In his case learned Single Judge held that he would have spent Rs. 400/- on his own expenses and allowed only Rs. 100/- per month as his saving. In his case applying the multiplier of 25 only Rs. 30,000/- has been awarded. In the case of Prem Prakash although his income has been assessed at Rs. 500/-per month and according to learned Single Judge it could have been increased to Rs. 1500/- to Rs. 1,600/- per month looking to his abilities and technical know-how, but still on the basis of Rs. 200/- per month savings and claim of Rs. 24,000/- has been awarded. It has been argued by Mr. Jain that a wrong yard-stick has been applied by the learned Single Judge in awarding compensation in the cases of Arvind Kumar and Prem Prakash. It has been submitted by Mr. Jain that the amount be spent on his own expenses by the deceased should be taken as one-fourth or one-fifth of the income and by applying this principle in the case of Ashok Kumar, compensation should have been awarded as Rs. 94,800/-, in the case of Arvind Kumar Rs. 1,68,000/-, and in the case of Prem Prakash Rs. 1,44,000/-. In support of the above argument Mr. Jain has calculated the amount of compensation in the following manner:
(i) In case of Ashok Kumar--Income 395 x 1/5=79 Rs. 395-Rs. 79 = 316 x 12 x 25 = Rs. 94,800/-.
(ii) Incase of Arvind Kumar--Income Rs. 700 x 1/5 = 140 Rs. 700/- -- Rs. 140/- = 560/- x 12 x 25=1,68,000/-.
(ii) In case of Prem Prakash--Income assessed at Rs. 500/- per month was likely to be raised Rs. 1,600/- per month thus taking average @ Rs. 1,000/- per month.
1000--200=800 x 12 x 25=Rs. 1,44,000/-
So far as the finding of the learned Single Judge that the accident took place on account of collision of the truck and the motor-cycle, learned Single Judge: has discussed the evidence in detail and has given adequate reasons in setting aside the finding of the Tribunal in this regard and we find no reason to take a different view.
8. So far as the question regarding transfer of the vehicle in favour of MadanLal on October 4, 1977, is concerned, the Tribunal had held that the truck was registered in the name of Ismail and there was no evidence of the sale. It was admitted by Madan Lai that even the tax was deposited by Ismail. Learned Single Judge upheld the above finding of the Tribunal and held that no sale was approved in favour of Madan Lai and such finding of fact cannot be interfered by this Court in special appeal. As a proposition of law also we agree with the view taken by the Full Bench of the Andhra Pradesh High Court in Madineni Kondaiah and Ors.. etc. v. Yaseen Fatima and Ors. I (1986) ACC 501 (FB). It has been held in the above case that the transferor retains the insurable interest till he discharges the statutory obligation under Section 31 of the Motor Vehicles Act. Apart from that insurance company cannot raise defences other than those provided in Subsection (2) of Section 96 of the Motor Vehicles Act.
9. The next question which calls for consideration is as to what was the negligence of Arvind Kumar, who was driving the motor-cycle and how the liability in such cases can be apportioned. It is no doubt correct that Arvind Kumar should not have taken 4 persons including himself on the motor-cycle and taking of so many persons on motor-cycle was not permissible under the Motor Vehicles Rules but this fact alone cannot make liable the driver to cause accident of the motor-cycle. It would be a different question if in fact the Court may arrive at the conclusion that a person driving the motor-cycle on account of carrying more persons, in fact lost the balance and thus was himself negligent in causing an accident. Merely because some more persons were carried on a motor-cycle which did not contribute nor was a factor in causing an accident than such conduct alone cannot be considered as an act of contributory negligence on the part of the driver of the motor-cycle. In Pepsu Road Transport Corporation Patiala v. Qimat Rai Jain and Ors. ; a passenger was keeping an arm on window of the bus, it was held that there was no contributory negligence on the part of the passenger. Both drivers of the bus and the truck were rash and negligent and their liability was joint and several including that of the Insurance Company. The Fazilka Dabwali Transport Co. Pvt. Ltd. v. Madan Lai , was a case of two boys riding the cycle. It was held that merely the fact of double riding by the boys could not contribute to the accident. No contributory negligence was thus held in the above case. In M/s. Rural Transport Service v. Bezlum Bibi and Ors. 1980 ACJ 327, there was a case of over-crowded bus. Passengers were invited to travel on the roof of the bus. Deceased was struck by a over hanging branch of a tree on account of which he fell down on the road and died. It was held that the bus swerbed on the right side of the road to over-take a cart and this was a rash and negligent act of the driver. However, the total claim was not dismissed and the liability was apportioned and 50 per cent was reduced for contributory negligence. Suraj Narain and Anr. v. Sneh Lata Jain and Ors. 1985 ACJ 581, is a case decided by learned Single Bench of this Court. In this case Bus RRL 3804 driven by Tara Chand collided Bus RRL 8548 driven by Suraj Narain. The hand of Miss Sneh Lata kept outside the bus in RRL 8548 was cut in the accident. The Tribunal fixed liability of Bus RRL 8548 as 2/3rd and that of bus RRL 3804 as l/3rd. It was held to be a case of composite negligence of both the bus drivers and the appeal was dismissed by the learned Single Judge. It was held that strict principles of pleadings cannot be applied in such cases and Motor Vehicles Act which provides provision for insurance and compensation are parts of social welfare legislation for giving benefits to the public at large. National Insurance Co. Ltd. v. Mahadeb Kar and Ors. 1986 ACJ 362, was a case where stage carriage WGE 1264 driven by Mahadeb Kar collided with stage carriage No. WGE 1195 coming from the opposite direction. The right leg of the passenger was amputated. It was a case of comprehensive policy and Insurance Company was held liable to pay an amount of Rs. 45,100/- to Mahadeb Kar who was driving the stage carriage WGE 1264.
10. In Mohan Lai v. Balwant Kaur and Ors. I (1985) ACC 322; learned Single Judge of this Court was considering the case where the appellant was sitting on back of Motor-cycle. Motor-cycle collided with the truck. Drivers of Motor-cycle as well as the truck were found to be negligent. It was considered to be a case of composite negligence and it was held that so far as the claimant, who was sitting on the back of the motor-cycle could choose to file claim petitions against both the drivers or any one of them.
11. In Mohinder Singh Sohal and Anr. v. Rameth Kumar and Ors. 1981 ACJ 326, 3 real brothers were going on motor-cycle. A Government Jeep driven rashly hit the motorcycle. Two brothers died and one was injured. The Tribunal held 40 per cent liability as contributory negligence of the driver of the motor cycle as he was having no licence and carrying two more persons not permitted by law. 20 per cent of the amount was cut for lump sum. The Punjab and Haryana High Court held that contributory negligence cannot be assumed for having no licence or carrying more passenger than permitted under law. If driver of motor cycle was driving with due care and caution it cannot be held that he was liable for contributory negligence. Appeal was allowed and the amount of compensation was enhanced and interest @ 6 per cent per annum was allowed from the date of application. Reliance in the above case was placed on Gobald Motor Service Ltd. v. R.M.K. Veluswami and Ors. 1958-65 ACJ 179, and Dharam Chands. Shivpat and Ors.., 1966 ACJ 319 (Punj.).
12. It has been held in The United India Fire and General Insurance Co. Ltd., and Anr. v. Mrs. Sayar Kanvar and Ors. 1976 ACJ 426 by a Division Bench of this Court that there is a difference between a composite negligence and contributory negligence. In case of composite negligence liability cannot be apportioned. We are clearly of the view that in the facts and circumstances of this case merely because Arvind Kumar was carrying 3 more persons on the pillion of the motor-cycle, it cannot be inferred that he was responsible for contributory negligence in the accident. The motor-cycle was insured comprehensively as is evident from Ex. AW 15/1 the policy of National Insurance Company. Such policies cover the risk of any person including third party and as such it would cover the risk of the driver of the motor-cycle as well as of the pillion riders. It was a case of composite negligence of the drivers of motor cycle as well as the truck as such insurance companies of both the vehicles would be liable to pay the compensation jointly and severally.
13. It was contended by the learned Counsel for both the Insurance Companies that apportionment should be made in the liability of both the insurance companies according to the proportion of negligence of the two vehicles. It has been further submitted that when the liability is imposed jointly and severally, it remains in the discretion of the cialmants to realise the amount from any of the insurance companies and this causes a prejudice to that insurance company from which the entire amount of compensation is realised.
14. We see no force in this contention. It has been laid down in plethora of cases of this Court as well as other High Courts that in case of composite negligence the liability cannot be apportioned. In a case of composite negligence there is no method or indicia to bifurcate or apportion the liability and the only course open in such cases can be to make them both liable as jointly or severally. So far as the claimants are concerned, they can realise the amount from any one of the insurance companies and then the insurance company, which pays the entire amount can take steps for recovering half of the amount from the other insurance company.
15. So far as the objection raised by Mr. Jain that special appeals are not maintainable on the ground that the award given by the Accidents Claims Tribunal is not a decree or judgment under the Code of Civil Procedure, we find no substance. The claimants themselves had filed appeals Nos. 90, 124 and 125 of 1983 which were allowed in favour of the claimants. Apart from that cross-objections have also been filed by the claimants in the special appeals. Thus, it cannot be said that these special appeals are not maintainable under Section 18 of the Rajasthan High Court Ordinance 1949.
16. Now, we shall deal with the quantum of compensation and the directions regarding interest allowed by the learned Single Judge. So far as the case of Ashok Kumar is concerned, learned Single Judge has awarded Rs. 60,000/- to his claimants. In his case his income has been shown as Rs. 395/- and the parents have been held to be entitled to a benefit of Rs. 200/- p.m. and applying the multiple of 25 Rs. 60,000/- have been awarded. In our view, when the income of Arvind Kumar has also been taken as Rs. 500/- it is not understandable as to how in his case learned Single Judge has held Rs. 100/-per month only as benefit going to the parents. Thus, in our view, applying the same standard claimants and legal representatives of Arvind Kumar also become entitled to Rs. 60,000/-. So far as the case of Prem Prakash is concerned, learned Single Judge has held that according to the evidence on record he would have earned Rs. 450/-to Rs. 475 per month. Om Prakash brother of the deceased had given an example of a person of simlar qualification, who was earning Rs 1,500/- to Rs. 1,600/-but such statement is vague. Learned Single Judge himself held that in the beginning he would have paid at least Rs 150/-and the same would have increased with the increase of income. In his case the mother of Prem Prakash is held to be of 60 years and a multiple of 10 years has been applied in his case. Admittedly, Prem Prakash was unmarried and unemployed and there is nothing wrong in holding that he would have given Rs. 200/- to his mother, who was of 60 years of age and could have been benefitted for 10 years.' Thus we find no ground to interfere in the amount of compensation of Rs. 24,000/- awarded in his case.
17. Now coming to the question of interest, learned Single Judge has already allowed interest @ 12 per cent per annum on the amount awarded from the date of the claim till the date of realisation. However, the learned Single Judge had put a condition that the amount shall be paid within a period of three months from the date of judgment, failing which the claimants should get the above interest. We find force in this connection in the contention of Mr. Bhargava that the certified copies of the judgment of learned Single Judge were supplied after seven months and as such there was no fault on the part of the Insurance Company to comply with the direction of the learned Single judge to make the payment within three months. Thus, taking in view the entire facts and circumstances of the case, we think it proper that the claimants should be entitled to interest @ 6 per cent per annum from the date of the claim till realisation without any condition. In pursuance to some orders passed on the stay application the Insurance Companies have already paid some amounts and as such the amount of interest will be reduced in proportion to the amount paid to the claimants under the orders of this Court. The claimant-respondents would be entitled to costs of this Court also. All the special appeals are disposed of in the manner indicated above.