G.SRI DEVI,J. - (1.)Challenging the judgment and decree, dtd. 26/4/2005, passed in O.P.No.335 of 2002 on the file of the Chairman, Motor Accident Claims Tribunal-cum-District Judge, Adilabad (for short "the Tribunal "), the claimants filed the present appeal.
The facts, in issue, are as under:

The appellants/claimants, who are the wife, children and mother of one Kanakaiah (hereinafter referred to as "the deceased "), filed a petition under Ss. 166 and 163-A of the Motor Vehicles Act claiming compensation of Rs.10,00,000.00 for the death of the deceased in a motor accident that occurred on 25/8/1999. It is stated that on that day the deceased, along with two others, was proceedeed in an Auto bearing No. A.P 13 U 4969 from Godavarikhani Cross Roads to 8th Incline and when the auto reached near 11th Incline Crossroads, a Jeep bearing No.AP-15-T-5759 came behind while overtaking the auto and dashed against it from backside, due to which, the auto lost control and turned turtle. As a result of which, the deceased fell down, received head injury and died on the spot. Basing on a complaint, a case in Crime No.121 of 2001 has been registered against the driver of the Jeep. It is also stated that prior to the accident, the deceased, who was aged about 38 years, was hale and healthy and was earning Rs.7,643.00 per month as a Coal Filler in Singareni Colleries Company Limited. Hence, the claimants filed claim-petition against respondents 1 to 3, who are the owner of jeep, owner of auto and insurer of the auto respectively.

Before the Tribunal, the respondents 1 and 2 remained ex parte. The 3rd respondent filed counter contending that even as per the petition averments, the jeep driver was negligently hit the auto, in which the deceased was traveling, and that the driver of the jeep was prosecuted for rash and negligent driving. It is also contended that since there is no pleading in the petition that the driver of the auto was negligent in driving the auto, the insurer of the auto is not liable to pay compensation. It is also contended that the amount claimed is excessive, arbitrary and out of all proportions and prayed to dismiss the petition.

Basing on the above pleadings, the Tribunal has framed the following issues:-

1. Whether the deceased viz., Kanakaiah, died in a motor accident dtd. 25/8/1999 involving vehicle Jeep No. A.P 15 T 5759 and Auto No. A.P 13 U 4960?

2. If so, whether the accident took place on account of fault of respondent Nos.1 and 2?

3. Whether the claimants are entitled for compensation? If so, to what amount and from whom?

4. To what relief?

On behalf of the claimants, P.Ws.1 and 2 were examined and got marked Exs.A1 to A6. On behalf of the respondents, neither oral nor documentary evidence was adduced.

After considering the oral and documentary evidence on record, the Tribunal came to the conclusion that the accident occurred only due to the rash and negligent driving of the driver of Jeep and as such, the 1st respondent, who is the owner of the Jeep, alone is liable to pay compensation of Rs.9,48,000.00 with interest @ 9% p.a. from the date of petition till the date of payment Challenging the same, the present appeal is filed.

Heard the learned Counsel for the appellants/claimants and learned Counsel for the 3rd respondent and perused the record.

Learned Counsel for appellants would submit that P.W.2 in his evidence categorically deposed that the accident occurred while the auto driver tried to overtake a jeep, the auto was turned turtle, but the Tribunal erred in holding that the accident occurred only due to the negligence of the driver of the Jeep. It is further submitted that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others 2017 ACJ 2700, the claimants are also entitled to the future prospects. Therefore, it is argued that the income of the deceased may be taken into consideration reasonably for assessing loss of dependency and prayed to enhance the same.

Per contra, the learned Stand Counsel for the 3rd respondent-Insurance Company submits that since the accident occurred only due to the negligence of the driver of the jeep, the Tribunal has rightly held that the 1st respondent-owner of the Jeep alone is liable to pay the compensation.

A perusal of the material available on record would show that P.W.2, who is said to be an eye witness to the incident, has categorically deposed that the while the driver of the auto was tried overtake a jeep, it was turned turtle and as a result of which, the deceased, who was traveling in the auto, sustained injuries and died.

According to the settled principle of law laid down by the Apex Court in National Insurance Company Ltd. Vs. Sinitha and others AIR 2012 SC page 797 the initial burden is on the respondents to prove that the accident not occurred due to negligent act of the driver of the Auto, but to prove the said contention, the 3rd respondent did not examine the driver of the auto, who is the competent person to speak about the manner in which the accident occurred or any direct witness to prove the manner of accident and to attribute negligence to the driver of the jeep or the circumstances which led to the accident. Therefore, the 3rd respondent miserably failed to discharge its initial burden to prove that the accident has not occurred due to rash and negligent act of the driver of the Auto. When once the 3rd respondent failed to discharge its initial burden, the claimants need not establish the occurrence of accident due to rash and negligent act of the driver of the auto. Admittedly, the auto and jeep were involved in the accident and the deceased was traveling in the auto at the time of accident. To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who were more responsible for the accident and who of the two had the last opportunity to avoid the accident. As per the evidence of P.W.2, who is said to be eyewitness to the occurrence of accident, deposed that the accident occurred while the auto driver tried to overtake a jeep, it was turned turtle. Had, the driver of the auto taken minimum care and caution in driving the auto and he did not try to overtake the jeep, the accident would not have occurred.

In T.O.Anthony v. Karvarnan and others 2008 ACJ 1165 the Apex Court held as under:-

"9. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.

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

In view of the law laid down by the Apex Court in T.O.Anthony case (3 supra) and in view of the oral evidence coupled with the documentary evidence adduced by the claimants, the finding of the Tribunal that the accident occurred only due to the negligence of the jeep driver and the 1st respondent, owner of the jeep alone is liable to pay compensation appears to be incorrect and the same is hereby set aside, holding that there is a contributory negligence on the part of both the drivers of the jeep as well as the auto at 50% each.

Insofar as the future prospects are concerned, this point has already been considered by the Apex Court in Pranay Sethi (1 Supra), and it has been held that the benefit of future prospects cannot be denied to a self-employed person. The Apex Court has further held that where the deceased was below the age of 40 years, an addition of 40% of the established income; where the deceased was between 40 to 50 years, an addition of 25% of the established income; and where the deceased was between 50 to 60 years, an addition of 10%, should be granted towards future prospects.

After considering the evidence available on record, the Tribunal held that the deceased was aged about 30 years at the time of the accident. In view of the judgment of the Apex Court in Sarla Verma v. Delhi Transport Corporation 2009 ACJ 1298 (SC) the suitable multiplier would be '17 '. If the income of the deceased at Rs.7,250.00 per month, as fixed by the Tribunal is taken, and if 50% of the income is added to the actual income of the deceased towards future prospects, the monthly income of the deceased comes to Rs.10,875.00 (Rs.7,250.00 + Rs.3,625.00). After deducting 1/4th amount towards his personal and living expenses, the contribution of the deceased would be Rs.8,156.00 per month and Rs.97,875.00 per annum. Hence, applying multiplier '17 ', the total loss of dependency would be Rs.97,875.00 x 17 = Rs.16,63,875.00. The claimants are also entitled to Rs.77,000.00 towards conventional charges, as per Pranay Sethi 's case (1 supra). Thus, in all the claimants are entitled to Rs.17,40,875.00. As stated above, since there is contributory negligence of both the drivers of the jeep as well as the auto at 50% each, the 1st respondent is liable to pay 50% of the said compensation and the 2nd and 3rd respondents are jointly and severally liable to pay the remaining 50% of the compensation.

At this stage, the learned Counsel for the 3rd respondent/ Insurance company submits that the claimants claimed only a sum of Rs.10,00,000.00 as compensation and the quantum of compensation, which is now awarded would go beyond the claim made, which is impermissible under law.

In Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another (2011) 10 SCC 756, the Apex Court while referring to Nagappa Vs. Gurudayal Singh 2003 ACJ 12 (SC) held as under:

"It is true that in the petition filed by him under Sec. 166 of the Act, the appellant had claimed compensation of Rs.5,00,000.00 only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident. "

In view of the Judgments of the Apex Court referred to above the claimants are entitled to get more amount than what has been claimed. Further the Motor Vehicles Act being a beneficial piece of legislation, where the interest of the claimants is a paramount consideration the Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent.

Accordingly, the appeal is allowed and the compensation amount awarded by the Tribunal is hereby enhanced from Rs.9,48,000.00 to Rs.17,40,875.00. The enhanced amount will carry interest at 7.5% p.a. from the date of order passed by the Tribunal i.e.26/4/2005 till the date of realization. The 1st respondent is liable to pay 50% of the said compensation and 2nd and 3rd respondents are jointly and severally liable to pay the remaining 50% of the said compensation. The enhanced amount shall be apportioned among the claimants in the same proportion in which original compensation amounts were directed by the Tribunal. However, the claimants are directed to pay Deficit Court fee, on the enhanced amount. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.