Judgment H.K. Rathod, J.—Heard learned Advocate Mr. M.J. Shelat on behalf of appellant insurance company. 2. The appellant insurance company has challenged award passed by Motor Accident Claims Tribunal, Amreli in MACP No. 299/2006 Exh. 37 dated 13/3/2008. The claims Tribunal has awarded Rs. 3,83,000/- with 9% interest from date of petition till realization with proportionate costs within a period of two months from date of this order. 3. Learned Advocate Mr. Shelat raised contention before this Court that driver is not join as party, therefore, finding given by claims Tribunal, Amreli against driver amounts to violating principle of natural justice for driver and proceeding of claim petition is vitiated. 4. He relied upon decision of Apex Court in case of Machindranath Kernath Kasar vs. D. S. Mylarappa & Ors. reported in 2008 (13) SCC 198 relevant Paras 42 and 43 are quoted as under: “42. Joint tortfeasors, as per 10th Edn. 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, while pursuing a common purpose agreed between them.” Hence, employer and employee, the former being vicariously liable while the latter being preliminary liable are joint tort feasors 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. 43. 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. 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 the Corporation, the finding of negligence of the part of appellant can not 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 can not be made against him.” 5. He submitted that claims Tribunal has committed gross error in appreciating panchnama and FIR. He submitted that dead body lying on wrong side after accident which aspect has not been properly considered by claims Tribunal. He submitted that FIR and Panchnama relied by claimant, which has been taken into account by claims Tribunal, even though, reading of panchnama and FIR suggests non application of mind of claims Tribunal. He also submitted that looking to age of deceased 40 years, 15 multiplier is on higher side after considering future prospect income of deceased. Except that no other contention is raised by learned Advocate Mr. Shelat before this Court. 6. I have considered submission made by learned Advocate Mr. Shelat and I have perused award passed by Claims Tribunal, Amreli. The accident occurred on 18/11/2006 at about 14.15 hrs when deceased Bhanubhai Kadvabhai Juvadaria was coming towards Amreli on Bajaj Scooter driving said scooter on correct side of road at moderate speed. When he reached near sign post of village Vankia, at that time driver of Luxury bus No. GJ-14-T-378 came driving said bus in rash and negligent manner in excessive speed and dashed with scooter driven by deceased. As a result of which deceased fell down from Bajaj Scooter and received serious injuries and died on spot. The deceased was coming towards Amreli in between Vankia patia accident is occurred. 7. As a result of which deceased fell down from Bajaj Scooter and received serious injuries and died on spot. The deceased was coming towards Amreli in between Vankia patia accident is occurred. 7. The notices served to respondent opponent No. 1 being owner of Luxury bus and he also received summons from claims Tribunal but remained absent. The appellant insurance company has appeared through learned Advocate Mr. M. B. Gosai and written statement filed at Exh. 11 denying all averment made by claimant in their claim petition. 8. The issues have been framed by claims Tribunal Exh. 19. It is necessary to note that issues which have been framed that does it prove by petitioner that accident occurred due to rash and negligent driving of driver of vehicle No. GJ-14-T-378 involved in said accident. Secondly, does it prove by applicants that deceased expired due to said accident, and applicant is entitled to get compensation? From whom? 9. The claimant Hansaben Bhanubhai Juvadaria being wife of deceased Bhanubhai Kadvabhai Juvadaria has given her oral evidence by way of filing affidavit at Exh. 33. She has also been cross examined by learned Advocate for opponent No. 2 Oriental Insurance Co. The claimants have produced certain documents as referred in Para 7. The question of negligence is examined by claims Tribunal relying upon evidence of claimant No. 1 Hansaben and also considering submission made by learned Advocate Mr. Gosai on behalf of appellant insurance company. 10. According to insurance company, deceased Bhanubhai was going towards Amreli, driving Bajaj Scooter No. GJ-11-B-4313 towing motorcycle and as deceased lost control over his vehicle he dashed with luxury bus No. GJ- 14-T-378 which was coming from opposite direction. Meaning thereby that luxury bus was coming from opposite side means Amreli side. 11. As against that learned Advocate Mr. Trivedi appearing on behalf of claimants relied upon panchnama of place of accident to show that dead body of deceased Bhanubhai, who was driving Bajaj Scooter lying of left side of road hence accident has occurred due to rash and negligent driving on part of driver of Luxury bus No. GJ-14-T-378. Thereafter, claims Tribunal has appreciated panchnama of place of accident and considered that dead body of deceased driver of Bajaj Scooter was lying on left side of road. Therefore, it can not be said that it is case of head on collision. Thereafter, claims Tribunal has appreciated panchnama of place of accident and considered that dead body of deceased driver of Bajaj Scooter was lying on left side of road. Therefore, it can not be said that it is case of head on collision. Therefore, according to claims Tribunal, accident occurred due to rash and negligent driving on part of driver of luxury bus. 12. The quantum has been decided by claims Tribunal while relying upon evidence of Hansaben Exh. 33. According to widow, deceased was aged about 35 years and earning Rs. 5000/-, but considering date of birth 7/2/1966 as per Exh. 30, deceased was aged about 40 years and for income there was no cogent evidence produced by claimant. Therefore, claims Tribunal has fixed or assessed Rs. 2000/- per month and considering guide lines from second schedule read with Section 163 (A) and multiplier has been applied while relying upon decision of this Court in case of Manohar Madhukar Tambe vs. Bhagubhai Liladhar and Others reported in 2005 (3) GLH 651 . The claims Tribunal has considered prospective income of deceased and Rs. 2000/- is considered to be dependency which multiplied by 15 comes to Rs. 3,60,000/-. As well as claims Tribunal has considered Rs. 10,000/- towards loss of expectancy of life, Rs. 10,000/- towards consortium and Rs. 3000/- towards funeral charges, which total comes to Rs. 3,83,000/-. 13. I have considered submission, one fact remained that Bajaj scooter was dashed on right side of luxury bus on front wheel means after having dashed by luxury bus to bajaj scooter, dead body must have been gone to wrong side that may not be considered to be relevant factor for determining rash and negligence driving of deceased. This fact, even from FIR where complaint was filed by driver of luxury bus suggest that luxury bus dashed with front wheel of right side of luxury bus. Therefore, after dashed, body may not have to be gone on wrong side that will not give clear picture that deceased was coming to wrong side and dashed with luxury bus. Therefore, claims Tribunal has rightly appreciated FIR and panchnama and come to conclusion that relying upon argument of advocate of claimant that dead body of deceased driver of Bajaj Scooter was lying on left side of road can not be considered that it is a case of head on collusion. Therefore, claims Tribunal has rightly appreciated FIR and panchnama and come to conclusion that relying upon argument of advocate of claimant that dead body of deceased driver of Bajaj Scooter was lying on left side of road can not be considered that it is a case of head on collusion. The left side of road suggested correct side of deceased not wrong side of deceased. 14. Learned Advocate Mr. Shelat submitted that FIR is filed by driver of Luxury bus. The accident occurred near village Vankia to south side of 12 km away. The complainant Anilkumar Naranbhai Chavda residing at Amreli filed complaint. The luxury bus was started on 18/11/2006 at about 2.20 am from Ahmreli to Dhari. When bus reached to near Vankia Patiya from Chalala side, one Bajaj scooter coming where according to complainant rider of Bajaj scooter has lost control i.e. how accident is occurred. The Bajaj scooter was dashed with front wheel of luxury bus and rear wheel has been run over upon deceased. According to complainant himself, driver of luxury bus was going with high speed on high way i.e. how he is not able to identify deceased of Bajaj Scooter. The deceased was residing at village Vankia. According to complainant along with Bajaj scooter one motorcycle was towing with it and due to lost control by deceased and accident is occurred. The accident occurred while bus was coming from Amreli to Chalala near patia of village Vankia, similarly, in panchnama also accident occurred from Amreli to Vankia patia on high way road, while dead body of deceased was lying on left side, head of body of deceased was on eastern side at distance of about 7 ft and on leg side of deceased, 10 ft distance was there. The Bajaj scooter was lying on Amreli side. Thereafter damage to vehicle has been recorded in panchnama. That means dead Body lying on left side of road is correct side of Bajaj Scooterist. 15. Relying upon this FIR and panchnama, learned Advocate Mr. Shelat submitted that merely dead body lying on left side from Amreli to Vankia that suggests wrong side of deceased as he was coming towards Amreli, that is wrongly appreciated by Claims Tribunal. 16. That means dead Body lying on left side of road is correct side of Bajaj Scooterist. 15. Relying upon this FIR and panchnama, learned Advocate Mr. Shelat submitted that merely dead body lying on left side from Amreli to Vankia that suggests wrong side of deceased as he was coming towards Amreli, that is wrongly appreciated by Claims Tribunal. 16. According to my opinion, this appreciation made by claims Tribunal after considering FIR where luxury bus going from Amreli to Dhari and deceased was coming from Vankia to Amreli, means both vehicles were opposite side to each other and front portion from driver side of luxury bus dashed to Bajaj scooter and further fact that at the time of accident, it was a case of driver that he was going with high speed or excessive speed, therefore, he was not able to identify Bajaj Scooterist. So this suggests rash and negligent driving of luxury bus driver which part has been rightly appreciated by claims Tribunal while considering FIR and panchnama. Therefore, contention raised by learned Advocate Mr. Shelat merely relying upon fact that dead body was lying on wrong side can not be presumed that it is a case of contributory negligence of deceased. The dead body lying on left side road is misunderstood by learned Advocate Mr. Shelat. It was left side of scooter not left side of bus. So finding given by claims Tribunal considering FIR and Panchnama is correct finding based on legal evidence. 17. He relied upon decision of Apex Court in case of Machindranath Kernath Kasar vs. D.S. Mylarappa reported in 2008 (13) SCC 198 where appellant was driver of bus belonging to Karnataka State Road Transport Corporation. While he was driving said bus, a collision took place between bus and a truck. A large number of passengers travelling in said bus as well as appellant were injured. The said passengers as also appellant filed applications for payment of compensation before Motor Accident Claims Tribunal. The Corporation denied and disputed contention of passengers that appellant was driving bus in a rash and negligence manner. The appellant examined himself in other claim petitions in support of case of Corporation. He, however, was not impleaded as a party therein. Similarly, driver of truck was examined in set of cases filed by appellant. Both sets of claim petitions were heard together and decided on same day. The appellant examined himself in other claim petitions in support of case of Corporation. He, however, was not impleaded as a party therein. Similarly, driver of truck was examined in set of cases filed by appellant. Both sets of claim petitions were heard together and decided on same day. The claim petitions of passengers were allowed and awards were not challenged and attained finality. In case of appellant, Tribunal once again examined evidence and held that accident was caused owing to rash and negligent driving of appellant. The Tribunal expressly negatived contention of appellant that it was truck driver who was driving truck rashly and negligently and consequently Tribunal dismissed appellant’s claim petition. 18. In light of this back ground of case, observation made by Apex Court in Para 42 and 43 of above referred case, where joint tort feasors as per 10th Edn of Charlesworth & Percy that owner and driver are joint tort feasors, therefore, in absence of one of them will not be a bar for a suit for compensation. This does not mean that negligence of driver need not to be proved, even in absence of driver evidence regarding negligence of driver can be adduced. The owner is also consider to be joined tort feasors and vicariously liable for act of his driver so out of two tort feasor, it is burden upon other tort feasor who can examine driver of luxury bus when claimant has made allegation against driver of luxury bus. Even insurance company can also examined driver of luxury bus but no care has been taken either by owner of vehicle or insurance company. In absence of fact, not to examine driver of luxury bus, claims Tribunal has relied upon FIR and Panchnama and come to conclusion that it is not case of contributory negligence but it is a case of sole negligence of driver of luxury bus. The question of opportunity to driver which has been considered by Apex Court in aforesaid cases but when owner was join as a party and if owner has think it fit not to examine driver as witness then such proceeding in absence of driver, who was not join can not vitiated or can not consider to be fatal. 19. In above referred decision, which has been relied by learned Advocate Mr. 19. In above referred decision, which has been relied by learned Advocate Mr. Shelat, where both drivers were examined but not join as party in claim petition filed by passengers of State Transport Bus and on their behalf driver was examined by S. T. Corporation as well as insurance company, comparison to facts of present case, this decision of Apex Court is not applicable to this Appeal. This decision has not held that in absence of Driver not joined as party claim petition is vitiated or become fatal. 20. This Court had an occasion to consider same question while relying upon decision of this Court in case of New India Assurance Co. Ltd., Jamnagar vs. Cargo Motors ltd & Ors. reported in 2009 (2) GLR 974 , where Apex Court in case of Oriental Insurance Co. Ltd vs. Meena Variyal reported in 2007 (5) Scale 269 held that-it has been decided that non impleading of driver of offending vehicle in claim petition, held on facts, not fatal to claim for compensation. Relevant discussion made in Para 12 is quoted as under: “12. In facts of this case, there is no such controversy between the parties about driver of truck owned by Cargo Motors Ltd. Owner was joined as party who is basically vicariously liable for the act committed by its agent namely driver of truck and owner has to be indemnified by insurance company in accordance with terms and conditions of policy of insurance. Owner himself has remained absent and had not appeared and has not filed written statement and in such circumstances, question is whether if driver is not joined as party, whether claim petition can be considered to be fatal, answer of this court is that the claim petition would not become fatal and this view has been taken by Kerala High Court in Simon Pathrose vs. United India Insurance Co. Ltd. and Another reported in 1994 ACJ 840 wherein Kerala High Court was considering question of non impleading of driver and maintainability of claim petition. Claimant had sustained injuries while boarding a bus. Claim petition was dismissed by claims tribunal as not maintainable for want of person against whom negligence is alleged namely driver and it was held by Kerala High Court that non impleading of driver is not fatal to the maintainability of claim petition. Claimant had sustained injuries while boarding a bus. Claim petition was dismissed by claims tribunal as not maintainable for want of person against whom negligence is alleged namely driver and it was held by Kerala High Court that non impleading of driver is not fatal to the maintainability of claim petition. Relevant discussion made by Kerala High Court in Paras 7, 8 and 9 is reproduced as under: “7. In the instant appeal filed by the claimant, the main contention urged before me was whether the finding of the Tribunal that the petition is not maintainable for non-joinder of the driver of the bus is correct or not. Having heard learned counsel for the appellant and learned counsel appearing for the respondents, I am of the view that the question is no longer res integra. In this connection, it has to be noted that both driver and owner are joint tortfeasors. In a motor accident the primary liability is that of the driver and once the driver is found negligent, the owner will be vicariously liable for the negligent, the owner will be vicariously liable for the negligent act of the driver. In other words, the liability of the driver and owner, being joint tortfeasors, is joint and several and any person who sustained any injury in a road traffic accident is entitled to sue either the driver of the vehicle or its owner. It may be true that the person against whom the award is passed and who is made liable to pay the amount as damages is entitled to recover the same from the other joint tortfeasor, but that will not disentitle the claimant injured from suing any one of the joint tortfeasonrs. It has been so held by two Division Bench decisions of this court reported in United India Fire & General Insurance Company Limited vs. Varghese, 1989 ACJ 472 (Kerala) and United India Insurance Co. Ltd. vs. Ratnamma, 1988 ACJ 435 (Kerala). In the later case, it was observed as follows : “The owner and driver are joint tort-feasors and, 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. 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 died in the accident without leaving any legal representative. That will not preclude the injured from claiming compensation against the owner or the insurer. T he 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.” The principle has been followed in a recent Division Bench decision of this Court in Anuradha Varma vs. State of Kerala, 1994 ACJ 353 (Kerala), wherein it was held that the non-joinder of the driver is not fatal to a claim petition. 8. In the light of the above discussion, I have no hesitation in holding that the driver is not a necessary party to the proceedings and absence of the driver will not be a bar for a petition claiming compensation. 9. Having considered the question whether the driver is a necessary party to the proceedings, the next aspect to be considered is the question of negligence, namely, whether the accident as alleged by the claimant was caused by the rash and negligent conduct on the part of the driver or the conductor, as the case may be. It so happens that in many cases the driver himself may die in the accident or he may die during the pendency of the proceedings or he may not appear at all even though he is arrayed as a party respondent before the Tribunal. In all such cases it does not mean that the negligence of the driver need not be proved. The negligence of the driver can be proved even in the absence of the driver on the party array. In the instant case only the owner and the insurer alone are impleaded by the claimant. Even so, it was open for the first respondent owner to take appropriate steps to examine before the Tribunal the driver and conductor of the bus who are none other than his own employees to prove his case as set out in the written statement. Even so, it was open for the first respondent owner to take appropriate steps to examine before the Tribunal the driver and conductor of the bus who are none other than his own employees to prove his case as set out in the written statement. But I find that apart from making the averments in the written statement, no independent evidence has been adduced by the first respondent owner to prove these statements. It is the specific case of the claimant that before he could make a complete entry into the bus, the conductor gave the bell pursuant to which the driver drove the bus in a rash and negligent way thereby throwing the claimant out of the bus through the door. In support of this version, the claimant entered the witness-box as P.W. 1 and gave evidence. He has categorically sworn that the bus was set in motion by the driver before he could make a complete entry into the bus and as a result thereof he fell down form the bus sustaining injuries. He has given the nature of the injuries sustained by him as also the treatment undergone by him after the accident. Having perused the testimony of the claimant as P.W. 1, I am inclined to believe that his version is true. Had the vehicle been set in motion after he made a complete entry into the bus, then even assuming that he lost balance because of the rash and negligent driving of the bus at the curve ahead, he would have fallen down inside the us itself rather than being thrown out. The fact that the claimant was thrown outside the bus probabilises his case that the conductor gave the bell and driver drove the bus before he could make a complete entry into the bus. Therefore, I have no hesitation in holding, that both the driver and conductor who are the servants of the first respondent owner are primarily liable for the accident as both of them were negligent in their conduct - the conductor in giving the bell before the claimant could enter the bus completely and the driver in driving the bus without proper care and caution. Therefore, I set aside the finding of the Tribunal on the question of negligence and find that the driver and conductor were guilty of negligence which caused the accident resulting in injuries to the claimant.” [See : State of Maharashtra vs. Gulabi Sudhu and Others reported in 1995 ACJ 965 Bombay; (2) Radha Kishan Sachdeva and others vs. Flt. Lt. L.D. Sharma and Another reported in 1994 ACJ 109 Delhi; (3) Hargo Rubber Industries Pvt. Ltd. vs. Mukesh Sharma and Others reported in 1994 ACJ 450 Delhi; (4) Anuradha Varma and Others vs. State of Kerala reported in 1994 ACJ 353 Kerala; (5) Vaddepalli Rajesham vs. Andhra Pradesh State Road Transport Corporation reported in 2002 ACJ 1993 AP]. 21. However, contention raised by learned Advocate Mr. Shelat has been considered by this Court but relevant fact is that owner has not filed reply and insurance company though filed reply not raised contention before claims Tribunal that in absence of driver this claim petition is vitiated. From perusal of award on behalf of insurance company, no such contention was raised before claims Tribunal either in written statement or in oral submission that because of driver is not join as party, claim petition is vitiated or it become fatal. So naturally in absence of such contention, claims Tribunal had not occasion to consider such contention for deciding whether in absence of driver, claim petition can be fatal or not? Now to raise contention before this Court by insurance company that in absence of driver, proceeding is vitiated can not be accepted because no such contention was raised by insurance company before claims Tribunal, Amreli. 22. Therefore, according to my opinion, in absence of driver claim petition can not consider to be fatal. In respect to quantum, learned Advocate Mr. Shelat raised contention that in absence of cogent evidence Rs. 2000/- has been assessed by claims Tribunal and looking to age of 40, 15 multiplier is applied. While considering claim petition under Section 166 claims Tribunal can take guide lines for applying multiplier, from second schedule read with 163(A) of M.V. Act, no doubt here in this case prospective income has been considered but that will not come in way when applying multiplier after relying upon second schedule by claims Tribunal and it can not considered to be error committed by claims Tribunal. Looking to age of deceased, 40 years, 15 multiplier can not consider to be on higher side. 23. Therefore, according to my opinion, in respect to multiplier contention raised by learned Advocate Mr. Shelat can not be accepted, for that, claims Tribunal has rightly examined matter for deciding quantum which would not require any interference by this Court. Therefore, contention raised by learned Advocate Mr. Shelat can not be accepted. Hence rejected. 24. Hence there is no substance in present appeal, accordingly, present appeal is dismissed. Today, first appeal is dismissed by this Court, therefore, no order is required to be passed on civil application. Accordingly, civil application is also disposed of.