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Rajasthan High Court · body

2014 DIGILAW 1430 (RAJ)

Bhanwari Devi v. Girraj Prasad

2014-07-25

J.K.RANKA

body2014
Judgment 1. Instant appeal u/s 173 of the Motor Vehicle Act, 1988 has been filed by the claimants-appellants seeking enhancement of the compensation awarded vide award dt.10/04/2001 passed by the Motor Accident Claims Tribunal, Jaipur in claim case No.485/1993 by which a compensation to the tune of Rs.2,21,000/- has been awarded to the claimant-appellant. 2. The brief facts, which have been gathered on perusal of the impugned award as well as record of the Tribunal, are that on 09/04/1993, the deceased Ramavtar, while travelling in the mini bus bearing No.RJ-14-P-1761 from Sanganer to Tonk Phatak, a truck bearing No.RJO-2955, which was being driven by its driver in high speed in a rash & negligent manner, collided with the mini bus near Gangaur Hotel, Sita Mandi, as a result of which deceased Ramavtar sustained severe and grievous injuries on his body and consequently he succumbed to death. An FIR to this effect was lodged in the concerned police station and the police, after investigation, filed challan in the Court. 3. The claimant-appellant submitted claim petition before the Tribunal wherein it was claimed that the deceased was working as a barber and was aged about 30 years at the time of accident. Mother and wife of the deceased both claimed that the deceased was working as a barber and as regards the income of the deceased, while his wife claimed that he was earning Rs.2000/- per month, his mother claimed that he was earning Rs.2100/- per month. Nevertheless, both claimed that they were dependent upon the deceased because even the mother Smt. Bhanwari Devi, the present appellant was also a widow. Though two separate claim petitions were filed, one by Smt. Bajrangi wife of the deceased and the other by Smt. Bhanwari Devi, mother of the deceased with whom two brothers and one sister joined. 4. Before the Tribunal, despite of proper notices, respondents No.1 to 3, who were driver, owner of the offending vehicle (truck), and driver of the mini-bus respectively did not appear and therefore, ex-parte proceedings were drawn against them. It is also on record, as narrated by the Tribunal, that there was no written statement filed by the other respondents as well. Before the Tribunal, despite of proper notices, respondents No.1 to 3, who were driver, owner of the offending vehicle (truck), and driver of the mini-bus respectively did not appear and therefore, ex-parte proceedings were drawn against them. It is also on record, as narrated by the Tribunal, that there was no written statement filed by the other respondents as well. However, in the second claim petition, the Insurance Company filed a written statement and the claim was objected by the Insurance Company on the plea that the claim petition was not preferred in the desired proforma nor the driver of the mini bus was made a party. It was further claimed that the accident was on account of rash and negligent driving of the truck driver and that they were not liable in any manner. It was further claimed that the driver of the mini-bus had no valid driving license and accordingly objected to the claim petition and requested for dismissal of the claim. 5. The Tribunal framed as many as five issues including the issue of relief and after considering various statements namely of Smt. Bajrangi, Nathu Lal, Bhanwari Devi, Sita Ram, FIR, Insurance Cover Note, Driving License, Charge Sheet etc. etc., including divorce decree, although awarded a compensation in favour of the claimant-appellant-Smt. Bhanwari Devi to the tune of Rs.2,21,000/-, however, it was held that the amount of compensation awarded is recoverable from respondents No.1 & 2 while the respondents No.3 to 5 were exonerated of the liability by holding that the mistake was of the truck driver. 6. The instant appeal has been filed by the claimants not only to enhance the claim, which according to them is meager and on lower side but also assailing the finding arrived at by the Tribunal by holding the respondents No.1 & 2 (driver and owner of the offending truck) liable to pay compensation severally and jointly and exonerating the respondents No. 3 to 5 from the liability to pay compensation. 7. Counsel for the parties did not appear despite their names having been shown in the cause list. Smt. Bhanwari Devi, claimant-appellant No.1, who is senior citizen and an old aged widowed lady, appeared in the Court on some occasions and pleaded for hearing of the appeal. 7. Counsel for the parties did not appear despite their names having been shown in the cause list. Smt. Bhanwari Devi, claimant-appellant No.1, who is senior citizen and an old aged widowed lady, appeared in the Court on some occasions and pleaded for hearing of the appeal. An application for early listing of the case was also moved by her on 03/07/2014 and since no one appeared on behalf of the respondents to oppose the application, the application was allowed and the case was fixed for today i.e. 25/07/2014. 8. Today also, counsel for the parties did not appear and the claimant-appellant No.1 herself appeared alongwith her son and argued the matter and also filed written submission/arguments and submitted that the Tribunal was unjustified in holding the claim to be allowable only to the extent of awarding Rs.2,21,000/-. She pleaded that the deceased was a barber and was earning good amount of income so as to maintain the entire family consisting of mother (the present appellant), two brothers and one sister and at least was earning about Rs. 2500/- to 3000/- per month. The deceased was hale and healthy man of age of 26 years. He was highly experienced and therefore had steady source of income. She, therefore, contended that the income should be based at least basing Rs.2500/- to 3000/- per month. She further contended that the multiplier and other factors have not been correctly applied. She further submitted that on the basis of the site plan, it can very well be proved that the respondents No.3 to 5 were also liable to pay compensation and that all the respondents in an accident like the present one, are severally and jointly liable to pay compensation. She further contended that not a single amount has been received till date and the respondents No.1 & 2, who were held liable to pay compensation, have not paid a single penny to the claimants-appellants. She further contended that not a single amount has been received till date and the respondents No.1 & 2, who were held liable to pay compensation, have not paid a single penny to the claimants-appellants. She further contended that alternatively the respondent No.5-National Insurance Company may be directed to pay compensation to the claimant-appellant, although it may be given liberty to recover the same from the other respondents as the claimant-appellant and her children, being poor people with no means, are not in a position to wander here and there and file proper claim before appropriate court of law whereas the respondent No.5-Insurance Company has ample power and authority to recover the amount from the other respondents and accordingly pleaded for allowing of the claim petition including enhancement of the compensation awarded by the Tribunal. 9. I have considered the arguments advanced by the claimant-appellant and perused the written submission/arguments placed before me as well as the records of the Tribunal. I have also gone through the finding of the Tribunal with regard to issue No.1 where the Tribunal has come to the finding that the accident took place on account of rash and negligent driving of the truck by its driver and that there was no mistake of the mini-bus, however, I disagree with the view of the Tribunal that there was negligence of the truck driver only whereas, in my view, the driver of the mini-bus, wherein the deceased was sitting and traveling, was equally responsible for the accident/incident. There may be contradictions in the statements of the witnesses but it is also a fact that one Nathu Lal (AW-2), clearly stated that the accident occurred on account of the mistake of the driver of the mini-bus and it was on the basis of what other people said who collected on the spot after the accident. According to me, the statements of Nathu Lal (AW-1), though may be contradictory but cannot be discarded/brushed aside outrightly on account of some inconsistency. It may be that Nathu Lal (AW-1), whose statement was recorded after about 6 years, may not have been in a position to remember/recollect the colour of the truck & mini-bus and it is a question as to whether there was adequate light at the time of accident. It may be that Nathu Lal (AW-1), whose statement was recorded after about 6 years, may not have been in a position to remember/recollect the colour of the truck & mini-bus and it is a question as to whether there was adequate light at the time of accident. In my view, merely because the charge-sheet was filed against the driver of the truck, the driver of the mini-bus cannot be totally exonerated. It always happens that when two vehicles meet with an accident, the mistake is found of the vehicle which is heavier and bigger in size even though the mistake may be on the part of the driver of the light/small vehicle. 10. I have also gone through the site plan and notice that though the truck appears to have slightly gone on the right side of the road but it is equally a fact that the mini-bus also appears to have been driving on the road side and therefore, on perusal of the site plan, though the finding of the Tribunal can be said to be justified to some extent that there was rash & negligent driving of the driver of the truck but it cannot be said that there was sole mistake of the driver of the truck and there was no mistake and negligence of the mini-bus where the deceased was sitting. In my view, merely because the charge-sheet has been filed against the driver of the truck only, it cannot be said that the driver of the mini-bus was not equally responsible. Under the Motor Vehicle Act, preponderance of probability is required to be seen and one has not to prove to the hilt as in the criminal jurisprudence. 11. In my view, the principle of res-ipsa-loquitur is applicable in the facts of the instant case and on perusal of the site plan and evidence, in my view, it can safely be assumed that there was a mistake of the driver of the minibus as well and it cannot be independently or specifically said that only the driver of the truck was negligent. The Tribunal framed issue no.1 which reads ad-infra:- ^^iz’uxr okgu la[;k Vªd vkj ts 2855 ,oe~ cl la[;k vkj ts 14 ih 1691 ds pkydx.k foi{kh la[;k 1 ,oe~ 3 ds )kjk fnukad 9-4-1993 dks le; 8-13 ih0e0 x.kxkSj gksVy lhrk eaMh Vksad jksM t;iqj mDr okguks dks mis{kk@mrkoykiu ls pykdj dh xbZ nq?kZVuk eSa vkbZ pksVksa ds ifj.kkeLo:i jkekorkj iq= Jh dUgS;kyky dh e`R;q gqbZA** 12. From above, it reveals that specific issue was raised as to the rash and negligent driving of the drivers of both the vehicles. Therefore, when there was specific issue and allegation of rash and negligent driving on the part of drivers of both the vehicles involved in the accident, in my view, the Tribunal grossly erred in holding the driver of the truck only to be negligent and in exonerating the driver of the mini-bus. 13. This situation exactly arose in the matter before the Hon'ble Apex in the case of Pushpabai Purshottam Udeshi and others Vs. M/s. Ranjit Ginning and Pressing Co. and another, reported in 1977 TAC 387 and the Hon'ble Apex Court had also applied the principle of Res ipsa loquitur and held as under:- “6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (13th Ed.) at p. 306 states : "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused". Salmond on the Law of Torts (13th Ed.) at p. 306 states : "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused". In Halsbury's Laws of England, 3rd Ed., Vol. 28, at page 77, the position is stated thus : "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence 'tells its own. story' of negligence on the part of the defendant, the story so told clear and unambiguous". Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care. Applying the principles stated above we have to see whether the requirements of the principle have been satisfied. There can be no dispute that the car was under the management of the company's manager and that from the facts disclosed by P.W. 1 if the driver had used proper care in the ordinary course of things the car could not have gone to the right extreme of the road, dashed against a tree and moved it a few inches away. The learned Counsel for the respondents submitted that the road is a very narrow road of the width of about 15 feet on either side of which were fields and that is quite probable that cattle might have strayed into the road suddenly causing the accident. The learned Counsel for the respondents submitted that the road is a very narrow road of the width of about 15 feet on either side of which were fields and that is quite probable that cattle might have strayed into the road suddenly causing the accident. We are unable to accept the plea for in a country road with a width of about 15 feet with fields on either side ordinary care requires that the car should be driven at a speed in which it could be controlled if some stray cattle happened to come into the road. From the description of the accident given by P.W. 1 which stands unchallenged the car had proceeded to the right extremity of the road which is the wrong side and dashed against a tree uprooting it about 9 inches from the ground. The car was broken on the front side and the vehicle struck the tree so heavily that the engine of the car was displaced from its original position one foot on the back and the steering wheel and the engine of the car had receded back on the driver's side. The car could not have gone to the right extremity and dashed with such violence on the tree if the driver had exercised reasonable care and caution. On the facts made out the doctrine is applicable and it is for the opponents to prove that the incident did not take place due to their negligence. This they have not even attempted to do. In the circumstances, we find that the Tribunal was justified in applying the doctrine. It was submitted by the learned Counsel for the respondents that as the High Court did not consider the question this point may be remitted to the High Court. We do not think it necessary to do so for the evidence on record is convincing to prove the case of rash and negligent driving set up by the claimants.” 14. The Hon'ble Orissa High Court, in the case of Bhuban Chandra Dutta Gupta Vs. G.M. Orissa State Road Trans. Corpn. And others, reported in 1985 ACJ 228, also applied the principles of Res ipsa loquitur. It would be fruitful to quote Para 4 & 5 of the said judgment, which provides ad-infra:- “4. Both the submissions of Mr. Ray have considerable force. G.M. Orissa State Road Trans. Corpn. And others, reported in 1985 ACJ 228, also applied the principles of Res ipsa loquitur. It would be fruitful to quote Para 4 & 5 of the said judgment, which provides ad-infra:- “4. Both the submissions of Mr. Ray have considerable force. I have carefully perused the appellant's application for compensation and the written statements filed by the respondents. The averments in the application for compensation leave no doubt that the accident took place due to a head on collision between the two vehicles and as a result of the said accident the appellant sustained injuries. In a case of this nature it may be difficult for a passenger to categorically state as to the driver of which of the two offending vehicles was guilty of rashness and negligence. The question of rashness and negligence is after all a matter of inference to be drawn from the circumstances leading to the accident, the manner in which accident occurred and other relevant facts. In a case where the claimant has stated in detail the manner in which the accident took place and the opposite parties while admitting the accident have placed their case trying to absolve themselves of the responsibility, the application is not liable to be thrown out for want of a specific allegation therein about rashness and negligence of the driver. It may so happen that in a case involving collision between two vehicles recourse may be taken to the principle of res ipsa loquitur and then it is for the Tribunal to draw its inference regarding rashness and negligence from the materials on record. In the present case each of the respondents has categorically denied that the accident was caused due to rashness and negligence of the driver of his vehicle. In the present case each of the respondents has categorically denied that the accident was caused due to rashness and negligence of the driver of his vehicle. In para 6 of the written statement of respondent No. 1 it is stated "The accident was caused due to gross rashness and negligence of the driver of the truck without any contribution whatsoever of the driver of the bus." Similarly, in the written statement filed on behalf of the respondent No. 2 in para 9 it is stated "That, the driver of the truck not being rash and negligent, the truck owner cannot be held responsible for paying any compensation whatsoever." Respondent No. 3 also in para 4 of his written statement has stated "That it is therefore inferred that there was rash and negligent driving by the driver of the opposite party No. 1 the insured." From these averments it is clear that the respondents understood it quite well that in his application for compensation the appellant had alleged rashness and negligence on the part of the drivers of the two vehicles. Further, the Tribunal himself framed issue No. 2 relating to rashness and negligence on the part of the drivers. In these circumstances, it has to be held that the Tribunal was clearly in error in rejecting the application for compensation on the ground that it contained no allegation of rashness and negligence on the part of the driver of any or both the vehicles involved in the accident. 5. The manner in which the accident took place has been stated by the appellant as P.W. 1 and also the Compounder who accompanied him during the travelling examined as P.W. 3. There is no cross-examination worth the name of these witnesses. Nothing has been pointed out why their evidence should not be accepted. The report of the Inspector, Motor Vehicles which has been accepted as additional evidence in this Court by order dated 23-10-1981 gives a clear impression that the drivers of both the vehicles were at fault for careless driving. The inspector of Motor Vehicles found that at the time of his inspection the bus was standing on the left side of the road and the truck on its right side. The inspector of Motor Vehicles found that at the time of his inspection the bus was standing on the left side of the road and the truck on its right side. He has observed that both the vehicles dashed each other at their left sides as a result of which left side of both the vehicles were damaged and since the right flank was completely occupied with the road repairing materials the bus could not be moved to the right flank. He has further observed that the place where the bus was standing was very narrow. The truck driver perhaps seeing there was space at the left side of the bus rushed away and dashed and pushed the bus whereas the driver of the bus should have been more careful and kept the bus near the road. From this material it is inevitable that the drivers of both the vehicles in question were rash and negligent in driving their vehicles and thereby caused the accident. As such the respondents 1 and 2 as owners of the bus and the truck respectively are equally liable to compensate the appellant.” 15. The Hon'ble Madras High Court, in the case of The Managing Director, Thanthai Periyar Transport Corporation Ltd., Villupurm Vs. Meerabai Ammal, reported in 1989 ACJ 139, also applied the principles of Res ipsa loquitur. It would be fruitful to quote Para 19 of the said judgment, which provides ad-infra:- “The doctrine of res ipsa loquitur reads as follows :- "The general purport of the words res ipsa loquitur is that the accident "speak for itself" or "tells its own story". Res ipsa loquitur (thing speaks for itself) is a principle which in reality belongs to the law of tort and is not applicable to a criminal prosecution. The application of doctrine of res ipsa loquitur depends upon the nature of the accident and the surrounding circumstances. Where there is evidence to show as to how the accident happened, there the question of applying the rule of res ipsa loquitur does not arise." In an action for negligence, the legal burden of proof rests on the claimants. But, barring exceptional cases, it may not be possible for the claimant to know what precisely led to the accident. It may peculiarly be within the means of knowledge of the driver or the owner. But, barring exceptional cases, it may not be possible for the claimant to know what precisely led to the accident. It may peculiarly be within the means of knowledge of the driver or the owner. This hardship to the claimant can be avoided by the application of the maxim 'res ipsa loquitur' which is not a principle of liability but a rule of evidence. The principle is that there are certain happenings which do not occur normally, unless there is negligence. Therefore, in the case of such happenings, the claimant is entitled to rely, as evidence of negligence, upon the mere happening of such accident. Having regard to the local conditions prevailing in this country, when res ipsa loquitur is attracted, it should be given as wide an amplitude and as long a rope as possible in its application to the case of a motor accident. The defendant cannot escape liability merely by preferring hypothetical explanations, however plausible of the accident. Where the principle of res ipsa loquitur is attracted the burden shifts to the respondent and the initial burden has to be on the driver/owner to prove that he had not been negligent. When a prima facie case of negligence of the driver has been established under the doctrine of res ipsa loquitur, it is incumbent on the part of the driver of the offending vehicle not merely to say that he had acted carefully but to rebut that presumption by proving that there was no negligence on his part, even though he could not prove how the accident happened. 16. The Hon'ble Punjab and Haryana High Court, in the case of Mela Ram Vs. 16. The Hon'ble Punjab and Haryana High Court, in the case of Mela Ram Vs. Mohan Singh and Ors, reported in 1978 ACJ 381 , also applied the principles of Res ipsa loquitur para 6 (a) the application of the doctrine of res ipsa loquitur, which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary course of things was more likely than not to have been caused by negligence was by itself evidence of negligence, depended on the absence of explanation of an accident, but although it was the duty of the respondents to give an adequate explanation, if the facts were sufficiently known the question ceased to be one where the facts spoke for themselves, and the solution must be found by determining whether or not on the established facts negligence was to be inferred; 17. Therefore, in my view, on the facts found on record as also the judgments (supra), the accident speaks for itself and in my view, the driver of the mini-bus was equally negligent and since the mini-bus was insured where the deceased was sitting and traveling, therefore, the Insurance Company will also pay compensation. 18. Once the min-bus, where the deceased was sitting and traveling, has been found to be duly insured with the respondent No.5 and Exhibit No.2 clearly proves that the Insurance was valid from 01/03/1993 to 28/02/1994 and was valid at the time of the accident on 09/04/1993, therefore, in my view, the respondent No.5-Insurance Company cannot be exonerated of its liability. Even otherwise, in my view, when the deceased was sitting in the vehicle which was duly insured and even for the sake of arguments, it may be visualized that there was total mistake of the driver of the truck, merely because there was total mistake and rash & negligent driving by the driver of the truck, can the deceased, who was sitting in the mini-bus, which may be said to have been driven correctly or on a moderate speed on its side that the claimants-appellants, will not be entitled to any compensation. Once the vehicle, wherein the deceased was sitting & travelling, was duly insured with the Insurance Company, in my view, the beneficial provision as contained under the Motor Vehicle Act certainly desires to be applied as compensation is to be allowed in a rightful manner. The Motor Vehicle Act provides adequate compensation to be provided to the claimants, who were dependent during the lifetime of the deceased or a person, who is injured, can get something out of the claimed compensation for their/his future livelihood as they/he would have earned prior to the occurrence of the accident. In my view, Hon'ble Apex Court, time and again, has come to the conclusion that rigid rules of evidence/criminal jurisprudence have to be left aside while dealing a case under the Motor Vehicle Act. 19. Keeping this in view, in my view, the Tribunal has erred in exonerating the driver/owner of the mini-bus and in wholly and solely holding the truck driver to be involved in the accident. I also notice that the persons, whose statements have been recorded, are either less literate people/ illiterate people and therefore. there may be inconsistency in their statements but that alone is not sufficient to dispel that the evidence is wholly unreliable. This is the incident of the year 1993 and even today, after 21 years of the said accident, people in villages or even otherwise, are not aware of the niceties of law or aware with the laws and on the questioning of the lawyers in the courts may go here and there but in my view, merely because of these, the statements of the witnesses cannot be ignored on account of such inconsistency. 20. Even the Hon'ble Apex Court has held that the claimants, who may not be in a position to get compensation wherever Insurance Companies are exonerated, are entitled to get compensation from the Insurance Company to the claimants/injured immediately so that the claimants/injured, who, by and large, are sufferers, may not wait for years together and may not wander here and there to get compensation and the Insurance Company has been given liberty/right to recover such amount of compensation from the other respondents who have really been held liable for the accident/incident. While the claimants/injured may not be affluent to go here and there to run after the respondents who may avoid payment of the compensation but the Insurance Companies have power, authority and competence to approach Tribunal in the same case/civil court/ other forums for recovery of the amount. 21. The Hon'ble Apex Court, in the case of National Insurance Co. Ltd. Vs. Swaran Singh and others, reported in (2004) 3 SCC 297 , in so far as the payment by the Insurance Company and thereafter recovery rights, after elaborate discussion, held in sub-para (ix), (x) and (xi) of para 110 which is reproduced ad-infra:- “(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” 22. Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Challa Bharathamma and others, reported in (2004) 8 SCC517, held so in Para 13 of its judgment which provides ad-infra:- “13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the Executive Court concerned as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executive Court shall take assistance of the Regional Transport Authority concerned. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.” 23. Considering the overall facts, in my view, I am of the firm opinion that the driver of the mini-bus was equally responsible for the accident and cannot escape compensation and equally responsible is the owner of the mini-bus and once the mini-bus was duly insured, the Insurance Company is held liable to pay compensation. The respondents No.1 & 2 have been held to be liable in the accident, equal liability is of driver/owner of the mini-bus, therefore, I direct that the respondents shall pay the entire amount to the claimants-appellants initially but they will be entitled to recover the amount of 50% of the compensation awarded from the respondents No. 1, 2, 3 to 4 i.e. 50% in equal terms from respondents No. 1 to 4 i.e. driver/owner of the truck as well driver/owner of the mini-bus. I hold accordingly. 24. In so far as the compensation is concerned, in my view, the deceased, being hale & hearty man of the age of 26 years, would have been certainly earning an amount of Rs.2100/- per month as claimed by his mother and, therefore, the claim of the claimant-appellant that he would be earning Rs.2100/- per month cannot be said to be low or excessive and accordingly, the compensation will be based on Rs.2100/- per month. Since the deceased had 4 dependents, therefore, the deduction of 1/4th would be reduced and considering the age of the deceased being 26 years, the multiplier of 18 is allowed in view of the judgment rendered by the Hon'ble Apex Court in the case of Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 . 25. In my view, the Tribunal has rightly disallowed any amount for loss of consortium because Smt. Bajrangi @ Kusum Lata, wife of the deceased a divorcee had already remarried with one Radhey Shyam, much before the death of the deceased and the statements of Radhey Shyam have already been recorded, therefore, neither Smt. Bajrangi would be entitled to loss of consortium nor any compensation out of the present claim. However, in my view, the mother is entitled to loss of love and affection which is directed to be allowed at Rs.20,000/-. As regards, the amount awarded by the Tribunal towards funeral expenses & loss of estate, the same appears to be reasonable and is not liable to be enhanced. 26. In view of the above, the compensation is recomputed as under:- (A) Income Rs.2,100/-PM (B) Deduction of 1/4th on self expenses Rs. 525/- P.M. Balance A-B Rs.1,575/- PM (C) Multiplier 1575x12x18= Rs. 3,40,200/- (D) Loss of love and affection of mother Rs. 20,000 (E) Funeral expenses & loss of estate Rs. 5,000/- Total Rs.3,65,200/- Or say Rs.3,66,000/- Less-Compensation awarded by Tribunal Rs. 2,21,000/- Amount enhanced Rs. 1,45,000/- 27. Accordingly, the total amount of Rs.1,45,000/-, as aforesaid, is additionally computed/allowable/enhanced in the present appeal. 28. Thus, the appeal is partly allowed. The impugned order/award dt.10/04/2001 is modified and enhanced by a further sum of Rs.1,45,000/- so as to make total compensation to the tune of Rs.3,66,000/-. Though the Tribunal had allowed compensation to the tune of Rs.2,21,000/-and directed recovery from the respondents No.1 & 2, in case the said amount of Rs.2,21,000/- stands recovered/paid after recovery from the respondents No. 1 & 2, the said amount will be deducted/reduced and only balance of Rs.1,45,000/-, which has been enhanced by this order, will be paid to the respondents. However, in case nothing has been recovered/paid after recovery from the respondents No.1 & 2, then the Insurance Company will pay the entire amount of Rs.3,66,000/- alongwith interest at the rate of 6% which will be allowed from the date of filing of the claim petition before the Tribunal. The Insurance Company i.e. respondent No.5 has already been given right to recover 50% of the total amount alongwith interest equally from respondents No. 1 to 4, therefore, in ultimate analysis, the liability of the Insurance Company would remain to the extent of only 50% of the total claim allowed including the present order and balance is recoverable by the Insurance Company in accordance with law from the other respondents as directed herein above. The Tribunal in these very proceedings will direct for recovery of the amount recoverable from the other respondents to the extent of 50% with interest. Out of the above enhanced amount with interest so computed rounded off to the nearest thousands, the Tribunal shall deposit 90% of the above amount with interest in the name of mother of the deceased in the Monthly Income Scheme (MIS) in the nearest post office for a period of five years. The interest accruing on month to month basis will be deposited in the saving account with the same post office with permission to withdraw the monthly interest/ quarterly interest as per the scheme of the post office. The balance of the remaining amount with interest would be disbursed to the mother by the Tribunal by bank draft/bankers cheque. It is made clear that the appellant will be allowed interest only as aforesaid of the enhanced amount so deposited in MIS and will not be allowed to take a loan on the same from the post office or raise loan on the said MIS. The above exercise to be done within two months. A copy of this order be sent to all the parties. No costs.