- (1.) The appeal is for enhancement of compensation for death of a male aged between 45 to 50 years. The accident had taken place on 1.11.1993. The deceased was a Sectional officer in HAFED. The claimants were widow, two minor children and parents.
(2.) His salary was taken as Rs. 60,000/- only. The tribunal applied a deduction of 1/3rd and assessed a compensation of Rs. 5,20,000/-. Counsel for the claimants has two contentions to make; i) as regards the quantum and the apportionment of liability amongst the respondents in the manner done by the tribunal.
(3.) As regards the quantum the contention is that the father of the deceased gave evidence to the effect that he was borne in the year 1950 and there was a statement that he was 42 years of age at the time of accident. The employers who had been made parties had themselves not denied the age. The doctor who had conducted the postmortem had only stated that he had recorded the age on the basis of the statement given by the police to be between 45 to 50 years. The counsel would argue that the Court must have taken the age of 42 years and not as 45 to 50 years. If there was a documentary proof relating to the age the evidence could be produced only by the claimants. Merely relying on their own assertions in the petition and postmortem showed fixed age of 45 to 50 years. The tribunal was justified in taking that age as stated within the range mentioned in the postmortem. The prospect of increase in salary must be taken in that context which will be available for a person who was in a settled employment. I will take the income to be Rs. 60,000/- in the manner taken by the tribunal applying a prospect of increase by 30% and using a multiplier of 13 and I would re-work the various heads of compensation as under:- I will provide for loss of love and affection and loss of consortium in the manner contemplated in some of the recent decisions of the Supreme Court. There was evidence by the father that the funeral rites cost him to Rs. 25,300/-. I will accord to him an amount of Rs. 25,000/- for funeral expenses. The aggregate shall be for Rs. 9,90,500/-. In the manner of apportionment of liability the tribunal has already found the owner and driver of the tractor which was involved in the accident. The tractor had not been insured. The counsel would argue that as far as the deceased was concerned it was a case of composite negligence and therefore the whole of compensation amount shall be recoverable against the Insurance Company with the provision to the insurer to affect recoveries against the owner and driver of the tractor. The law that allows for a claim to the benefit of enforcement against any one of the tort feasors when ever there is a composite negligence is facilitative. This is not to be understood as casting an obligation for the tribunal to provide for right of enforcement against any one of the tort feasors only even when both the tortfeasors were impleaded as parties. In this case owner of the jeep and driver of the tractor had been made parties. There is no defect in the award that apportioned the liability and the claimant shall apply recoveries against the persons who found to be liable pursuant to which the aggregate has been assessed by the tribunal. The counsel for the Insurance Company points out that the claimants had not even taken the issue of liability and apportionment in the manner canvassed by the counsel before this court. I will find no reason to allow for the entire award to enforce only against the insurer. The right of enforcement shall be apportioned in the ratio of 75:25 between the insurer and the owner and driver of the tractor respectively in the manner assessed by the tribunal. The amount in excess of what has already been granted by the Tribunal shall attract interest at the rate of 7.5% per annum from the date of petition till the date of payment. The amount shall be distributed amongst the claimants in such a way that widow and children take twice as much as each of the parents.;