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2023 DIGILAW 205 (AP)

Tangirala Bala Tripura Sundari v. Union of India

2023-01-25

T.MALLIKARJUNA RAO

body2023
JUDGMENT : T. MALLIKARJUNA RAO, J. 1. Aggrieved by the order dated 05.09.2011 in M.V.O.P. No. 275 of 2008 passed by the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, West Godavari, Eluru, the claimant in the M.V.O.P. No. 275 of 2008 filed M.A.C.M.A. No. 731 of 2012, whereas the 1st respondent-Union of India Rep. by its General Manager, South Central Railway, Secunderabad, has filed M.A.C.M.A. No. 808 of 2012. As both appeals arise out of the orders passed in M.V.O.P. No. 275 of 2008, both appeals are disposed of by common Judgment. 2. For the sake of convenience, hereinafter, the parties will be referred to as per their rankings in the M.V.O.P. as claimants and respondents. 3. The claimants have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming a compensation amount of Rs. 9,05,000/- for the death of Tangirala Venkata Kanaka Durga (hereinafter be referred to as ‘the deceased’) in a rail-cum-motor vehicle accident. 4. The entire material on record shows that the following facts are either admitted or not in dispute. The relationship between claimant and the deceased, as referred to in the claim petition, is not in dispute; on 12.01.2006, the claimant along with her mother i.e. deceased and other family members, engaged in an auto bearing No. AP-37-V-8366 from Velivennu to go to Yellaramma Temple at Mandapaka. After worshipping at the temple, they proceeded to Relangi village in the same Auto. On the way, there is an unmanned level crossing of the railway line near Velpur railway station. The Auto on which the deceased and others were travelling reached a few yards away from the rail crossing, the auto driver tried to cross the railway line, but the Auto was struck up in the ditch between two rails, and the engine stopped. When the auto driver tried to start it to cross the high-level 2nd rail, he could not. Suddenly, he found coming of the Circar Express from the Tanuku side; he alerted and cautioned the passengers to alight the Auto. He ran away. He was able to save two children and a passenger from danger, and others also tried to run from the vehicle, but meanwhile, the engine of the Circar Express collided with the stranded Auto. As a result, the Auto was crushed; dragged for a few yards; pushed out from the track. He ran away. He was able to save two children and a passenger from danger, and others also tried to run from the vehicle, but meanwhile, the engine of the Circar Express collided with the stranded Auto. As a result, the Auto was crushed; dragged for a few yards; pushed out from the track. Due to this, the deceased and two others died instantaneously due to fatal injuries sustained in the accident. 5. The claimant’s case coming to disputed facts is that the abovereferred unmanned railway crossing line is busy. There is also a sharp curve of the railway line from Tanuku to Velpur station at a distance of 500 mts from the said level crossing. The trains coming from the Tanuku side cannot be sighted from the Velpuru station beyond the sharp curve at a distance of about 500 meters. From the commencement of the curve, there are thick rows of coconut trees and other trees and bushes on either side; more than ten huge rain trees (niddragannera trees) are along the eastern edge of the railway station platform, about thirty to forty years old. The heavy branches were overhanging and overshadowing the railway line. The railway line is a single track from a point at the road while crossing; it cannot sight the rail engine/train coming from Tanuku side until it reaches very near the crossing. The road from Mandapaka to Velpur is a pucca black metal tar road, except between the two rails of the said railway line. The road between the two rails of the unmanned level crossing had become damaged. There is only black metal stone at a lower level by 6” than the road level on either side. The place of occurrence at the level crossing had become a ditch. A small board containing the warning that vehicles to look at the railway track and proceed in small letters, dusted all over and not visible, was found on the other side. The Circar express was scheduled to reach the place of the accident at about 5.20 PM, but on that day, it came late at 06.58 PM. The accident occurred entirely due to the railway's negligence in not fixing an unmanned gate and unattended ditch between two rails at the crossing and also due to the negligence of the driver and owner of the Auto. The accident occurred entirely due to the railway's negligence in not fixing an unmanned gate and unattended ditch between two rails at the crossing and also due to the negligence of the driver and owner of the Auto. Soon after the accident, the railways had become alerted and filled the road's ditch between two rails at crossing with gravel and laid B.T. road. 6. The 1st respondent filed its counter, denying the averments in the petition and submitted that the vehicular traffic passing through the level crossing is very nominal; passenger trains be scheduled every day; there is no traffic of goods trains; it may be once a week or not. Many unmanned level crossings are turned into manned gates based on the increased traffic volume at such points. But Velpuru level crossing, there is no necessity to establish a manned gate at level crossing; it involves a heavy investment of public funds. No single such accident is recorded on that track except the present incident. The 1st respondent denied that the road in between rails is 6 inches lower than the main road. The 1st respondent has taken all precautions laying the speed breakers; at a distance of 15 meters from the track, put up the stop board; at a distance of 5 mts, put up a board giving warning. The trains coming from the Tanuku side are visible from a distance of 400 meters distance from the level crossing. There is no negligence on the part of the Railway Administration in maintaining the level crossing at Velpuru. The Auto was overloaded with 11 passengers, including the driver, whereas the capacity of the Auto was only four. So, due to overload, the Auto could not be pulled out of the track immediately and as such, it caused the accident. The act of the auto driver in crossing the unmanned level crossing negligently is punishable offence U/sec. 161 of the Railways Act, 1989. So, the accident occurred due to the engine trouble of the Auto or the inefficient driving of the 2nd respondent. 7. The 2nd respondent filed a written statement denying the allegations in the petition and submitted that he is a poor man and is doing coolie work. At the time of the accident, he was not the driver of the Auto. He was falsely implicated by the claimants as an auto driver to gain wrongfully from him. 7. The 2nd respondent filed a written statement denying the allegations in the petition and submitted that he is a poor man and is doing coolie work. At the time of the accident, he was not the driver of the Auto. He was falsely implicated by the claimants as an auto driver to gain wrongfully from him. The accident took place due to the negligence of the 1st respondent. The 1st respondent has not taken proper care in maintaining the level crossing and omission to fix a manned gate. Also, an unattended ditch between two rails at level crossing contributed to the accident. The Tribunal has no jurisdiction to entertain the petition. 8. The respondents 3 and 4, have remained ex-parte. 9. Based on the pleadings, the Tribunal framed appropriate issues. During the trial, on behalf of claimants, PWs. 1 to 4 were examined and marked Exs.A.1 to A.7. On behalf of the respondent, RWs. 1 and 2 got examined, and marked Exs.B.1 and B.2. 10. The learned Tribunal, after evaluating the evidence on record, held that the accident occurred due to the contributory negligence of the Railway Administration and the driver of the auto which resulted in the death of the deceased and another girl, awarded compensation of Rs. 2,76,000/- with interest at 7.5% per annum from the date of the petition till the date of realization, 1st respondent is directed to deposit Rs. 1,38,000/- and respondents 2 and 3 are directed to deposit the Rs. 1,38,000/-. 11. Heard both the learned counsels. 12. Learned counsel for the appellant/claimant in M.A.C.M.A. No. 731 of 2012 contended that the tribunal granted meager compensation towards the death of the deceased; the tribunal erred in apportioning the liability equally on the 1st respondent herein and the respondents 2 and 3; the tribunal ought to have considered the method and manner of occurrence of the accident and ought to have fastened the entire liability on the 1st respondent only; the tribunal erred in ignoring the busiest road traffic as also the rail traffic which passes through the crossing in question; the tribunal erred in taking the monthly income of the deceased as Rs. 2,000/- the tribunal ought to have adopted a higher multiplier in the facts of the case. 13. 2,000/- the tribunal ought to have adopted a higher multiplier in the facts of the case. 13. Learned counsel for the appellant/1st respondent in M.A.C.M.A. No. 808 of 2012 contended that the tribunal ought to have held that the train not being a motor vehicle as defined under M.V. Act, there is no jurisdiction to the tribunal and should have dismiss the claim against the respondent No. 1; the tribunal held in Para 33 of its award that the claimant’s contention not fixing the manned gate near level crossing does not amount to gross negligence on the part of 1st respondent railway administration, should have dismissed the OP against respondent No. 1 instead of directing the railways to pay 50% of the amount awarded; the tribunal failed to take into cognizance of the fact that the claimants did not even impead the insurer of the auto; the tribunal assessed the income of the deceased as Rs. 2,000/- per month and applied the multiplier as ‘16’ is contrary to the settled principles of law. 14. Now the points that arise for consideration are: 1. Whether the tribunal has got jurisdiction to entertain the claim? 2. Whether the Tribunal is justified in holding that the death of the deceased occurred due to contributory negligence of the Railway Administration and the driver of the Auto and apportioning the liability equally? 3. Whether the quantum of compensation fixed by the Tribunal is just and reasonable? POINT No. 2: 15. On behalf of the claimant, her guardian i.e. her maternal uncle examined as PW-1. He stated in his chief examination as narrated in the petition. 16. PW-2 Garimella Rajeswari, is the sister of PW-1. She also corroborated the evidence of PW-1 in all material particulars with regard to the manner of the accident and death of her mother and sister Kanakadurga and her daughter Gayathri. 17. PW-3 Y. Rama Murthy, president of Velpur village, stated in his evidence that on 12.01.2006 at about 7.00 PM, the circar express dashed against the Auto at the level crossing, in which three persons died on the spot, and others sustained injuries. 18. PW-4 B. Sesha Rao also stated in his evidence about the accident at Velpur unmanned railway level crossing on 12.01.2006 at 7.30 PM. 18. PW-4 B. Sesha Rao also stated in his evidence about the accident at Velpur unmanned railway level crossing on 12.01.2006 at 7.30 PM. His evidence shows that after knowing about the accident, he rushed to the accident spot in his car and noticed the Auto was damaged. The Auto was proceeding towards Velpur from the Mandapaka side before the accident. 19. The 1st respondent V. Ramesh Babu, the then Junior Engineer, South Central Railway, is examined as RW-1. He is not an eyewitness to the accident. 20. The train's driver at the time of the accident is examined as RW-2. According to him, on 12.01.2006, he was on Loco Pilot duty to Train No. 6044. He has taken Loco No. 15062 from Kakinada to Vijayawada with 100% brakes power. At 18.50 hours, he reached Tanuku Railway Station. As there was a whistle board at a distance of 600 meters from unmanned level gate No. 148 at 134/5-6 kilometres, he gave a continuous whistle. At the time of the accident, he was on the left side of the Loco Engine Cabin. The engine of the train is of a long hood leading model. So, he can't have a look at the track on his right side; he has been given the necessary instructions by the Assistant Driver about the track clearance as the Assistant Driver was standing on the right side of the engine at the time of the accident. After the crossing whistle board before reaching the unmanned level crossing, his Assistant cried that an auto was entering the track. Immediately, he applied emergency brakes at a distance of 120 meters from the gate. Despite applying the brakes, the engine dashed the Auto on its back. As the Auto did not cross the track, the train hit it. When applying the brakes, the train ran at 60 to 65 km per hour. So, he could stop the vehicle within five posts (300 meters) from the spot by applying the brakes. Immediately he got down from the train, went to the spot, and found three persons died; two persons were severely injured, and five more were simply injured. 21. As seen from the record, the auto driver who drove the Auto at the time of the accident was not examined. However, he is shown as one of the parties to the proceedings. He did not choose to contest the same. 21. As seen from the record, the auto driver who drove the Auto at the time of the accident was not examined. However, he is shown as one of the parties to the proceedings. He did not choose to contest the same. As observed by the Tribunal, he is the best person to depose about the manner of the accident. The auto driver did not dispute the case of the claimant that there was rashness and negligence on his part also in causing the accident. 22. It is the evidence of PWs. 1 to 4 that a sharp curve of the railway line from the Tanuku side to the Velpur railway station. Due to the sharp turn, the train could not be visible from the railway level crossing until the train reached close to the railway crossing. At the time of the accident, the heavy branches of the big trees were hanging. 23. It is also the case of the claimant and the evidence of PWs. 1 to 4 that the level of the road adjacent to the rails on either side is 5 to 6 feet inches in depth, and there are no stones between the two rails. The road covering the area of the level crossing was not in good condition. The road between the two rails at the unmanned level crossing was damaged, and there were only black metal stones at a low level of 6” of the road level. Except for the place between the two rails, the entire B.T. road was well managed. The accident occurred entirely due to poor maintenance of the road and due to the trapping of the Auto between two lines. 24. In this regard, RW-1 stated that the condition of the road between the two rails at the unmanned level crossing is good. Their department also arranged whistle boards on either side of the track at a distance of 600 meters from the unmanned level crossing. They also provided stop boards on either side of the gate at a distance of 5 meters. The speed breakers were also laid on the road on either side of the unmanned level crossing. The persons travelling on the road have got sufficient visibility to see the train before it reaches the unmanned level crossing. If the auto driver had been vigilant, he could not have attempted to cross the track. The speed breakers were also laid on the road on either side of the unmanned level crossing. The persons travelling on the road have got sufficient visibility to see the train before it reaches the unmanned level crossing. If the auto driver had been vigilant, he could not have attempted to cross the track. According to the evidence of RW-2 also, the road level at the level crossing is at a normal level, and he applied emergency brakes; he could reduce the speed of the train to half of its usual speed by that time, it hit the Auto and from 600 meters away to the gate, he has been continuously whistling. 25. It is born out of the record that after the accident, the Chief Security Officer, South Central Railway, Secunderabad, ordered a Joint Fact-finding enquiry by senior officers of the Railway Department. After giving the public notification, they conducted an open enquiry and submitted Ex.B1 report. The enquiry committee has examined as many as 13 witnesses, including RW-2, who is the driver of the train and also the Assistant Driver guard of the train. As rightly observed by the Tribunal, all the 13 witnesses examined by the Fact-finding committee belong to the Railway Department, and they made no effort to examine any of the injured or eyewitnesses to the accident, or Sarpanch of the Village, or the Revenue officials of the Village pertaining to the place of the accident. The Tribunal has referred to the observations of the Fact-finding committee; according to observations, the level crossing is located at the 1st-degree curve; Assistant Driver and Driver had seen the coming of the Auto; they reacted immediately and applied the brakes. The finding of the enquiry committee was that the auto back portion was hit by the Loco, and the Auto, which entered from the right side of the level crossing, was thrown away from the track onto the left side. The train Loco stopped at KM134/1 after hitting the Auto within a reasonable distance, i.e. about 400 meters away from the first sighting of the Auto by the Assistant Driver. 26. Based on the Ex.B1 report, it is concluded that there was no minimum breaking distance for the train driver, and there was no possibility for the driver to avert the accident. 26. Based on the Ex.B1 report, it is concluded that there was no minimum breaking distance for the train driver, and there was no possibility for the driver to avert the accident. It is also not the case of the claimant that there was negligence on the part of the train driver. According to the case of the claimant, the negligence was also on the part of the Railway Administration in maintaining the level crossing in improper conditions. 27. The relevant observations made by the Fact-finding committee to some extent helpful to the case of the claimant with regard to the unsafe conditions at the unmanned level crossing are as follows: “Un-safe conditions at the unmanned LC - The unmanned L.C. No. 148 is located at Km. 134/5-6 between T.N.K.U. and A.L. stations. The committee noted that the approach road is a “Kutcha” road laid with ballast and moorum and the road surface is level and speed breakers are available on both sides. Whistle Boards and Road Warning Boards are available. Visibility to the Train Driver while coming from T.N.K.U. The side is about 400 Mtrs. And from A.L. side, it is 800 Mts. The visibility for Road users is 500 Mts. The J.E. and S.E. - P. Way informed that they had inspected the L.C. on 02.01.2006 and there was no need to attend to the L.C. as the conditions were good. In view of the above, the possibility of unsafe conditions existing at the unmanned L.C. contributing to the accident is ruled out. 28. The Tribunal observed after considering the report that it is a one-sided enquiry report. The committee has not summoned the injured persons and eyewitnesses to the accident. It has also not summoned and examined Village Servants or Sarpanch of the Village with regard to unsafe conditions of the unmanned level crossing. But it has observed that the approach is a Kacha road laid with ballast and moorum. 29. It is the contest of the claimant and also the evidence of PWs. 1 to 4 that the Auto was struck in between the two rails because of the poor condition of the road. The Tribunal observed that though in Ex.B1 report, the said fact was not confirmed, it would show that road at the level crossing, where the Auto was struck, is not in proper condition. 1 to 4 that the Auto was struck in between the two rails because of the poor condition of the road. The Tribunal observed that though in Ex.B1 report, the said fact was not confirmed, it would show that road at the level crossing, where the Auto was struck, is not in proper condition. As such, they have given suggestions for improving the road. 30. It further suggested that the approach road at all the unmanned level crossings be maintained with a level surface for a distance of 11 meters from the Centre-lien of the track on either side and hereafter with a gradient not steeper than 1 (one) in 30. Further, the road surface at the level crossing and the approaches are to be laid with B.T. Pavement/Paved with hexagonal cement concrete blocks. The report of the committee further suggests that as per the practice in vogue, the overhauling of level crossing is being done at present once a year and tamping of the track is done between 12 and 18 months. During the course of tamping of the track, normally, the road surface gets disturbed. In order to maintain the road surface at the level crossing and on the approaches to the desired standards throughout the year, it is recommended an Annual Maintenance Contract may be tried out. 31. PW-2 admittedly was present in the Auto at the time of the accident. PW-3, who is a neighbouring ryot, also claimed to witness the incident. It is the evidence of PWs. 2 and 3 that while the Auto was moving on the level crossing, the back portion was struck in between the two rails. However, the front portion of the Auto crossed the rail, and the engine failed. It is the case of the claimant that there was a ditch in between the two rails, and the approach road is above 6” than the level of the ditch. 32. The evidence of RW-2 shows that he and the Assistant Driver of the engine sighted the Auto moving on the level crossing at a distance of 300 meters when the train was moving at the speed of 60 km per hour; it took a few seconds for the train to hit the Auto. That time may be sufficient for the driver of the Auto to push forward from the track. That time may be sufficient for the driver of the Auto to push forward from the track. The evidence shows that as the Auto was struck in the ditch, which existed in between two rails, he could not push out the rail from the right, and it was hit by the train. The evidence on record shows that there was also negligence on the part of the railway administration in causing the accident by not properly maintaining the road between two rails where the Auto was struck. 33. This Court also accepts the finding of the Tribunal that the accident also occurred due to a foolhardy attempt of the driver of the Auto to cross the level crossing before the train came, when the train was fast approaching. 34. The case of the claimant is also supported by PW-4, previously the Sarpanch of the Velpur village; later, he became a member of the Legislative Assembly. His evidence shows that the level of the road adjacent to the rails on either side is 5 to 6 inches less than two rails. The road is 5-6 inches depth, and there are no stones in between the two rails. The road covering the area of the level crossing was not in good condition. It is difficult for small vehicles, like Auto, to travel through unmanned level crossings because of the poor condition of the road and on account of the low level of the road in between the rails. According to him, the accident occurred due to the poor maintenance of a railway crossing and for want of visibility of the train at an unmanned level crossing. He is not related to the claimant, and he reached the accident spot soon after the accident and also noticed the conditions of the level crossing. 35. PW-3, who got landed property near an unmanned level crossing, also stated that the road between the two rails was totally damaged and the space between the two rails was lower in level than the road surface by 6 inches, and the accident took place due to the trapping of the Auto in between two rails. The Tribunal, after appreciation of the evidence of PWs. The Tribunal, after appreciation of the evidence of PWs. 1 to 4, observed that though they have categorically stated in their evidence about the bad condition of the road and there was a ditch in between the two rails, in which the Auto was struck, it is not even suggested to them that the accident did not occur as the Auto was struck in the ditch in between the two rails. The Railway Department has also not adduced any oral evidence to disprove the contentions raised by the claimant. They have also not produced a record to show when the road between the two rails was laid and the condition of the road at the time of the accident. 36. The claimant relied on a news item published in Ex.A4 Andhra Jyothi District Edition dated 13.01.2006, wherein a detailed account was given regarding the manner of the accident and poor maintenance of the road. However, the reporter was not examined. But the Tribunal observed that the said news item could be taken into consideration for appreciating the oral evidence of PWs. 2 to 4 with regard to the poor maintenance of the road between the two rails at the time of the accident. 37. Section 131 of the Motor Vehicle Act deals with the Duty of the driver to take certain precautions at unguarded railway level crossings; it reads as follows: “Every driver of a motor vehicle at the approach of any unguarded railway level crossing shall cause the vehicle to stop and the driver of the vehicle shall cause the conductor or cleaner or attendant or any other person in the vehicle to walk up to the level crossing and ensure that no train or trolley is approaching from either side and then pilot the motor vehicle across such level crossing, and where no conductor or cleaner or attendant or any other person is available in the vehicle, the driver of the vehicle shall get down from the vehicle himself to ensure that no train or trolley is approaching from either side before the railway track is crossed.” 38. It is the contention of the respondent Railways that the Auto was overloaded. As against the carrying capacity of four persons, it was carrying eleven passengers, including the auto driver at the time of the accident. It is the contention of the respondent Railways that the Auto was overloaded. As against the carrying capacity of four persons, it was carrying eleven passengers, including the auto driver at the time of the accident. Had the driver not overloaded the Auto, the Auto would have easily crossed the level crossing, though it was struck in a ditch with 6 feet width. However, the evidence of PW-2 shows that the driver of the Auto got down from the Auto and observed the railway line and found that no train was coming; he tried to cross the railway level crossing. As there was a steep curve of the track very near to the level crossing, it was not possible to see the approaching train from the level crossing, and there were big trees and branches which were overhanging, and as such, the driver could not see the train before he ventured to cross the level crossing. As already noticed, RW-2 stated in his evidence that he had been giving a whistle 600 meters from the place of the accident. 39. The Tribunal observed that if the driver of the Auto was prudent, he would have stopped the Auto on hearing the whistle of the train even before entering the track. After appreciation of the evidence on record, the Tribunal observed that the accident also occurred due to the negligence of the driver of the Auto in overloading with eleven passengers and trying to negotiate the level crossing without proper observation of the track. 40. After appreciation of the evidence on record, the Tribunal observed that non-fixing of the manned near railway crossing does not amount to gross negligence on the part of the Railway Administration. After considering the reasons stated by the Tribunal, this Court finds that the said finding is justified with reasons. The Tribunal taking into consideration the fact that the Railway Administration failed to maintain the space between two rails in good condition and unattended ditches due to which the Auto was struck in between the two rails, which is to be attributed to the Railway Administration and there was contributory negligence on the part of the railway administration as well as the driver of the Auto. It further observed that 50% of the negligence is attributable to the Railway Department and 50% is attributable to the 2nd respondent, who is the driver of the Auto belongs to the 3rd respondent; and the liability has to be apportioned between the 1st respondent on the one hand and the 2nd respondent on the other hand. 41. It is the contention of the counsel for the claimant that the observation made by the Tribunal that the accident occurred due to contributory negligence of the respondents is incorrect, and it occurred due to the composite negligence of respondents. In a decision reported in Khenyei vs. New India Assurance Co. Ltd. and Others, (2015) 9 SCC 273 wherein: 14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence, whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of a combination of the negligence of two or more other persons. In T.O. Anthony vs. Karvarnan and Others, 2008 (3) SCC 748 , it held that in case of contributory negligence, 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. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. The extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. It further held that the same analogy could be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is the determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle – trailer-truck, which was not insured by the insurer, was negligent to the extent of 2/3rd. In the instant case, there is the determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle – trailer-truck, which was not insured by the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being the insurer of the bus after making payment to the claimant to recover from the owner of the trailer truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings, but the remedy would be to file another suit or appropriate proceedings in accordance with the law. What emerges from the aforesaid discussion is as follows: (i) In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as a liability of joint tortfeasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, the determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making the whole payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/tribunal, in the main case, one joint tort feasor can recover the amount from the other in the execution proceedings. (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award. 42. In the decision of Union of India vs. United India Insurance Co. Ltd. and Others, 1997 (3) RLW (Raj) 476 : 1997 (0) Supreme (Raj) 768 wherein the Apex Court held that: (10) There is a well-known principle in the law of torts called the doctrine of identification or imputation. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course of employment. But, it has also been held in Mills vs. Armstrong (also called the Bernina case) that the principle is not applicable to a passenger in a vehicle in the sense that the negligence of the driver of the vehicle in which the passenger is travelling, cannot be imputed to the passenger. (Halsbury's laws of England 4th Ed. 1984 Vol. 34, Page 74) (Ratanlal and Dhirajlal, Law of Torts (23rd Ed. 1997, p.511) (Ramaswamy Iyer, Law of Torts, 7th Ed. p.477).The Bernina case in which this principle was laid in 1888 related to passengers in a steamship. In that case, a member of the crew and a passenger in the ship Bushire drowned on account of its collision with another ship Bernina. It was held that even if the navigators of the ship Bushire were negligent, the navigator's negligence could not be imputed to the deceased who were travelling in that ship. This principle has been applied, in later cases, to passengers travelling in a motor vehicle whose driver is found guilty of contributory negligence. In other words, the principle of contributory negligence is confined to the actual negligence of the plaintiff or of his agents. There is no rule that the driver of an omnibus or a coach or a cab or the engine driver of a train, or the captain of a ship on the one hand and the passengers, on the other hand, is to be `identified so as to fasten the latter with any liability for the formers contributory negligence. There is no rule that the driver of an omnibus or a coach or a cab or the engine driver of a train, or the captain of a ship on the one hand and the passengers, on the other hand, is to be `identified so as to fasten the latter with any liability for the formers contributory negligence. There cannot be a fiction of the passenger sharing a right of control of the operation of the vehicle, nor is there a fiction that the driver is an agent of the passenger. A passenger is not treated as a backseat driver. (Professor and Keeton on Torts, 5th Ed. 1984 p. 521-522). It is, therefore, clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved - could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent - the driver and owner of the bus and, if proven, the railways - can all be joint tortfeasors. 43. Coming to the facts of the case, the deceased travelled in the Auto along with her relatives. The material on record shows that the driver of the said Auto was negligent. The driver's negligence in any manner cannot be attached to the passengers of the Auto. 44. In light of the above legal position, this Court views that though the Tribunal is justified in the determination of inter se liability of negligence to the extent of negligence of 50% to the auto driver and 50% to the Railway department, it is not justified in directing the 1st respondent to deposit Rs. 1,38,000/- with interest and directing the respondents 2 and 3 to deposit Rs. 1,38,000/- with interest from the date of the petition. As it is a case of composite negligence, the claimant is entitled to recover the amount from both or any one of the joint tortfeasors as the liability of joint tortfeasors is joint and several. The determination of the extent of the negligence between the joint tortfeasors is only for the purpose of inter se liability so that one may recover the sum from the other after making the whole of the payment to the claimant to the extent it has satisfied the liability of the other. The determination of the extent of the negligence between the joint tortfeasors is only for the purpose of inter se liability so that one may recover the sum from the other after making the whole of the payment to the claimant to the extent it has satisfied the liability of the other. This Court finds that the driver of the Auto, i.e. 2nd respondent and 1st respondent being joint tortfeasors, are jointly and severally liable to pay the compensation amount. However, in light of the observations made, one may recover the sum from the other respondent after making the whole of the payment to the claimant to the extent it has satisfied the liability of the other. Accordingly, this point is answered. POINT No. 1: 45. The learned counsel for the 1st respondent contends that as the train is not a motor vehicle, the claim is not maintainable before the Motor vehicle's Tribunal. The Tribunal has relied on the decisions in Union of India vs. United Insurance Company Limited and Others, AIR 1998 SC 640 and Union of India vs. Bhaghavati Prasad and Others, 2002 ACJ 721 wherein it observed that, as the accident occurred on the part of the driver of the motorcycle as well as the railway administration, the Tribunal has got jurisdiction. 46. In Union of India vs. United Insurance Company Ltd. and Others (supra), it observed that: (48) For all the above reasons, we held that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tortfeasors and if arising out of the use of the motor vehicle. We hold that an award could be passed against the Railways if its negligence in relation to the same accident was also proved. We hold that the Tribunal and the High Court were right in finding that there has been a conflict of judicial opinion among the High Courts on the above aspect. The Andhra Pradesh High Court in Oriental Fire and General Insurance Co. Ltd. vs. Union of India took the view that the claims before the Tribunal are restricted to those against the driver, owner and insurer of the motor vehicles and not against the railways. The Andhra Pradesh High Court in Oriental Fire and General Insurance Co. Ltd. vs. Union of India took the view that the claims before the Tribunal are restricted to those against the driver, owner and insurer of the motor vehicles and not against the railways. (49) We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati, Orissa and Madras High Courts is not correct and that the view taken by the Allahabad, Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view. Further, as pointed out by the Gujarat High Court, claims where it is alleged that the driver/owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle, but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of exclusive negligence of railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal. 47. In light of the above legal position and finding given on Point No. 2, this Court views that the Tribunal's finding that it has got jurisdiction to entertain and decide the claim holds good. Accordingly, this point is answered. POINT NO. 3: 48. The claimant has not produced any document showing the exact age of the deceased. In the absence of such evidence, the tribunal relied on Ex.A.2-certified copy of the postmortem certificate and Ex.A.3-inquest report of the deceased; it assessed the deceased's age as 35 years, which is not disputed by the respondents. 49. It is the case of the claimants that the deceased used to act as an insurance agent and also an agent for banks for mobilizing fixed deposits. However, Ex.A.6-business certificate is relied on by the claimants. 49. It is the case of the claimants that the deceased used to act as an insurance agent and also an agent for banks for mobilizing fixed deposits. However, Ex.A.6-business certificate is relied on by the claimants. None were examined to prove the said certificate. In a case like this, where there is no specific evidence as to the income of the deceased, the Apex Court, in Lakshmi Devi and Others vs. Mohammad Tabber, 2008 ACJ 488 held that, in today’s world, even common labour can earn Rs. 100/- per day. Based on the above principle, this Court can safely assess the monthly earnings of the deceased at Rs. 3,000/-. The Tribunal wrongly assessed the income of the deceased notionally at Rs. 2,000/- per month. 50. In National Insurance Company Limited vs. Pranay Sethi, 2017 ACJ 270 wherein it is held in case the deceased was self-employed, an additional 40% where the deceased was aged below 40 years should be regarded as the necessary method of computation. Given the same, the monthly earnings of the deceased, including a future prospectus, can be assessed at Rs. 3,000/- + 40% = Rs. 4,200/-. 51. The tribunal by following the principle laid down in Sarala Verma vs. Delhi Transport Corporation, 2009 ACJ 1298 deducted 1/3rd earnings of the deceased towards personal and living expenses of the deceased. After the deduction of 1/3rd of the earnings as observed above, the monthly earnings, including the future prospectus of the deceased, the contribution of the earnings towards the family welfare would arrive at Rs. 2,800/-. Therefore, the loss of earnings would arrive at an amount of Rs. 5,37,600/- (Rs. 2,800/- x 12 x 16). 52. In Magma General Ins. Co. Ltd. vs. Nanu Ram, 2018 ACJ 2782 at paragraph 8, the Apex Court held that: “(8.6).........the Motor Vehicles Act is beneficial and welfare legislation. The Court is duty-bound and entitled to award 'just compensation, irrespective of whether any plea on that behalf was raised by the claimant. (8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (SC), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is the loss of consortium. In legal parlance ‘consortium’ is a compendious term which encompasses ‘spousal consortium’ and ‘parental consortium’ and filial consortium. (8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (SC), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is the loss of consortium. In legal parlance ‘consortium’ is a compendious term which encompasses ‘spousal consortium’ and ‘parental consortium’ and filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse [Rajesh vs. Rajbir Singh, 2013 ACJ 1403 (SC)]. The parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training. The filial consortium is the right of the parents to compensate in the case of the accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship, and role in the family unit.” 53. The judgment in Pranay Sethi’s case was rendered in the year 2017. Therefore, the claimants are entitled to a 10% enhancement of conventional heads. In all, the claimants are entitled to the compensation as detailed below: Towards loss of dependency Rs. 5,37,600/- Towards funeral expenses Rs. 16,500/- Towards loss of estate Rs. 16,500/- Towards parental consortium Rs. 44,000/- Total Rs. 6,14,600/- 54. In the result, the appeal in MACMA No. 731 of 2012 is partly allowed by enhancing the compensation amount from Rs. 2,76,000/- to an amount of Rs. 6,14,600/- (Rupees Six Lakhs Fourteen Thousand Six Hundred only) against the respondents 1 to 3 with interest at 7.5% per annum as awarded by the tribunal. The claimants are entitled to recover the amount from all or any one of the respondents as their liability is joint and several. However, in the light of observations made in the order, the extent of inter se liability of 50% negligence is fixed on the first respondent and the remaining liability is fixed on the respondents 2 and 3. The claimants are entitled to recover the amount from all or any one of the respondents as their liability is joint and several. However, in the light of observations made in the order, the extent of inter se liability of 50% negligence is fixed on the first respondent and the remaining liability is fixed on the respondents 2 and 3. In the event of recovery of the compensation amount from one of the respondents, the said respondent may recover the same from the other respondents by filing execution petition before the tribunal. In all other aspects, the award passed by the tribunal holds good. No costs. 55. The appeal filed by the first respondent in MACMA No. 808 of 2012 is dismissed. 56. In both the appeals, the parties shall bear their costs. 57. Consequently, in these appeals, miscellaneous petitions pending, if any, shall stand closed.