SOUMEN SEN,J. - (1.) THE instant appeal is arising out of an award passed in M.A.C. No. 185 of 2001 on 21st January, 2004. The said award has been challenged by the claimants on the ground that the learned Tribunal could not have absolved the New India Assurance Company Limited from paying the compensation and the owners of the respective offending vehicles from paying a lesser compensation.
(2.) THE other ground is that fixing Rs. 65/- as daily income for the purpose of computing the loss of earning and determining the compensation on that basis is abnormally low and in not in conformity with the decisions of the various Courts including the Hon 'ble Apex Court in dealing with similar situation. The deceased namely, Saimul @ Saiful Sk. was the victim of a collision of two vehicles resulting in his death on 4th March, 2001. Although initially a claim was made against both the Companies namely New India Assurance Company Limited and the National Insurance Company Limited being the two insurance companies who issued the policies in respect of the said two offending vehicles but while the appeal was taken up for hearing, the learned Advocate for the appellant has fairly submitted that in view of the law laid down by the Hon 'ble Supreme Court in Asha Rani 's Case and having regard to the evidence on record, he would not press his claim against National Insurance Company. From evidence it appears that the victim was a "gratuitous passenger ". Accordingly in such situation for any accident suffered after amendment of 1994 made in Section 147 of the Motor Vehicles Act, 1988 such victim would not be entitled to any compensation from the insurer of the said vehicle in which he was a gratuitous passenger. The said amended Section has come up for consideration in Asha Rani 's case reported in (2003)1 WBLR (SC) 605 by reason whereby a gratuitous passenger is not entitled to make any claim against the Insurance Company even if the vehicle to which such policy is extended is contributory to any such negligent act resulting in accident and/or accident to death. In Asha Rani 's case, the Apex Court held that in view of the amended provisions, a gratuitous passenger of the good carriage is not entitled to claim compensation from the Insurance Company but the owner of the goods and/or his authorized representative who hired the said vehicle, would be entitled to claim the compensation against the Insurance Company. The said decision was subsequently followed in the decision reported in (2006)2 WBLR (Cal) (Asit @ Sujit Pattanayak �vs- Oriental Insurance Co. Ltd. & Ors.). 3. Learned Counsel submits that in view of the fact that the driver of both the vehicles including the owners are joint tortfeasors and it is an act of composite negligence, the Insurance Company of the other offending vehicle in any event could not be absolved from its liability. On this aspect, the learned Counsel has relied upon the decisions reported in A.I.R. 1997 Madhya Pradesh 248 (M.P. State Road Transport Corporation and Ors. �vs- Abdul Rahman & Ors.), 2000 WBLR (Cal) 289 (The National Insurance Co. Ltd. �vs- Swapan Kumar Dakua & Anr.), (2008)3 Supreme Court Cases 748 (T.O. Anthony �vs- Karvarnan & Ors.) and (2008)6 Supreme Court Cases 767. In the instant case although by reason of the interpretation given to the amended provisions of Section 147, the National Insurance Company would not be liable in respect of one of the offending vehicles to pay such compensation, but in view of Section 163A of the Motor Vehicles Act, the owner of the other offending vehicle cannot be absolved of his liability and accordingly Sukumar Mondal as owner of such offending vehicle is also liable to pay the said compensation. Moreover, in a case of composite negligence, each tort feasor is jointly and severally liable and apportionment of liability cannot be done. In the aforesaid decisions it has been clearly held and more particularly in the decision reported in (2008) 3 Supreme Court Cases 748 (Supra), the Hon 'ble Apex Court in paragraph � 6 has clearly reiterated the said principles, the relevant portion whereof is set out hereunder : "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 wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer 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 wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a persons 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. "
(3.) IN view of such well settled principle of law and having regard to the fact that it is an act of composite negligence, the Tribunal on the basis of evidence could not have absolved the New India Assurance Company Limited from his liability to pay such compensation. The Tribunal has completely misdirected his mind in not ignoring such materials and provisions of law and passed an order which is suffering from misconception of law and fact and accordingly, the said finding in not absolving the New India Assurance Company Limited from paying such compensation is hereby set aside. Next we turn to the question of the assessment of compensation made by the Tribunal in relation to the said victim. The Tribunal had discarded the evidence lead on behalf of the victim that the victim was a mason and was earning not less than Rs. 100/- per day.;