JUDGMENT N.N. Mithal, J.
1. These three appeals have been filed against the award of the Motor Accidents Claims Tribunal in a petition under Section 110-AofMotor Vehicles Act, 1939,
2. The Tribunal has awarded compensation of Rs. 90$00/- against the opp-parties. Aggrieved by the award the Assurance Company has filed F.AJF.O.No.221 of 1978 challenging that the entire liability to pay compensation awarded could not be levied against the appellant as under the contract of insurance its liability was limited to Rs. 50,000/-.
3. F.A.F.O.N0.245 of 1978 has been filed by the owner of the vehicle in which the deceased was travelling at the time of accident. He has challenged his liability to pay the amount & quantum of compensation awarded as well as the findings on the question of negligence of the driver of his vehicle.
4. The third F.A.F.O.N0.295 of 1978 has been filed by the widow of deceased on the ground that the compensation awarded was inadequate and it should be enhanced.
5. Since all these F.A.F.O.S are directed against the same award of the Tribunal and same questions of law and facts are involved we propose to dispose them of by a common judgment.
6. Before we proceed any further it may bepointedoutthatG.A.F.O.NO.221 of 1978 was dismissed as abated against respondent No. 4 i.e. the owner of the vehicle. It was also dismissed on 2.8.89 for failure to take steps against respondent No. 6 who was one of the defendant respondent. In our opinion, dismissal of the appeal as against respondent Nos. 4 & 6is not likely to affect the maintainability of the appeal as the appeal filed by respondent No. 4 is being dismissed for non prosecution and his rights would not be effected in any manner. As for respondent No. 6 is concerned he is one of the owners of the other Tempo involved in the accident and as such the absence of the heirs of respondent No. 6 will not adversely affect maintainability of the appeal : Apart from this the interest of respondent No. 6 is fully represented by respondent No. 5. We hold accordingly.
7. Proceeding now to consider the appeals on merit. We may first take up the appeal filed by Abamd Ali, the owner of the tempo in which the deceased was travelling at the time of accident. The appeal was filed by Sri. V.N. Khare, Advocate (Now Hon'ble Mr. Justice V.N. Khare). Notices were thereafter issued to the appellant to engage another counsel by registered A.D. Post on 2.7.1985. According to the office report neither undelivered cover nor acknowledgement due had been received back and, therefore, the Court can presume that the registered letters have been served on the appellant. In spite of this service on the appellant, however, no one has put in appearance on behalf of the appellant and none is present today to represent him.
8. The list of hearing cases has been revised and we, have, therefore, no choice but to dismiss the appeal in default. Since the counsel for the respondent Sri. A. K. Saxena and Sri. S. M. Yusuf are present on behalf of the respondents the appeal is dismissed in default of the appellant but we make no order as to costs.
9. In F.A.F.O. N0.295 of 1978 the main grievance of the claimant appellant is that the amount of compensation awarded was inadequate and secondly that the Tribunal has failed to award interest for with there could be no justification.
10. It is not disputed that Sri Chandra Shekhar Pendey deceased was the husband of the appellant and he was teacher in a College getting Rs. 464/- p.m. as his salary. On 27.4.76 he was proceeding from Karchhana to Allahabad in Tempo No. UP Z.6327. As the vehicle was being driven rashly and negligently it collided against another Tempo No. U.P.Z.7069 which was coming from opposite direction. In the result the tempo in which the deceased was travelling took a slight turn and dashed against a mange tree and turned turtle causing severe injuries to the victim who died on the spot soon thereafter. A claim for Rs. l,13,190.47 was, therefore, put forward on behalf of the widow and minor children.
11. Ahmad Ali, the owner of the tempo, the defence took the plea that it was the other tempo which was being driven rashly and negligently and in order to avoid collision the driver had turned the tempo to the left and at a result it dashed against a mango tree. The death of the appellant's husband is admitted. But the cause is attributed to the driver of tempo No. UPF7063. '
12. The Assurance Company also filed its defence. It may be mentioned that the same Assurance Company was the insurer of both the tempos involved in the accident. Certain technical pleas were also taken.
13. On the evidence led before the Tribunal it came to the conclusion that the accident had been caused due to rash and negligent driving by both the drivers of the two tempos and, therefore, the defendants were held jointly liable for compensation. While determining the compensation the court has accepted that the deceased was getting Rs. 664/-p.m. as salary including D. A. etc. After deducting some amount for personal expenses it was held that the family dependency was Rs. 300/- p.m. He was hardly 35 years of age at the time of his death and longevity in the family as 60 years the Tribunal calculate a compensation by multiplying Rs. 300/- with the remaining period of his expected life i.e. Rs. 90,000/-. Apart from the salary a claim in respect of the pension and provident fun etc. was also made but since there was no evidence on this point on the record the Tribunal rightly did not consider the same.
14. Having given careful thought to the material on record we do not find any good reason to interfere with the findings as to the quantum of compensation in this case. Accordingly we find that the Tribunal was justified in awarding Rs. 90,000/- by way of compensation for the loss of the life of the deceased Chandra Shekhar Pendey, husband of the appellant-claimant.
15. Sri A.K. Saxena, learned Counsel for the Assurance Company, however, submitted that the entire liability to pay Rs. 90,000/- stand foisted against all the opp. parties including the Assurance Company. He has urged that the liability of the Assurance Company was only Rs. 50,000/- and as such it was found to satisfy the award only to that extent, the insurance policy has not been filed in this case but the same was filed in other claim petition instituted at the instance the injured which was also disposed of by a separate award by the same Tribunal in which the liability of the Assurance Co. is limited to Rs. 50,000/-. It was urged for the appellant that the policy, being not on the record of this case, cannot be looked into. However, we find that the owner of the vehicle, Ahmad Ali, in his appeal No. 245 of 1978 has admitted that the liability of the Assurance Co. was only to the extent of Rs. 50,000/-. Since that appeal is also being disposed of along with the present appeal and it also arises from the same award as the one in the appeal in question we are of the opinion that the court can also take notice of the admission made by the owner of the vehicle.
16. Accordingly we hold that the claim of Rs!90,000/- should not have been decreed against all the respondents with a condition that the Assurance Company-defendant No. 3 in the claim petition would be liable to satisfy the claim to the extent of Rs. 50,000/- only. The amount in excess thereof would be realisable from the owner respondents.
17. The learned Counsel for the claimant in the end submitted that the Tribunal should have awarded interest on the compensation awarded. Under Section 110 (CC) of the Motor Vehicles Act, 1939 the Claims Tribunal has been empowered to award interest on the amount of compensation. The Accident took place in 1976 and the award was made in 1978. There could be no justification for denying the claimants of the interest on the amount of compensation. We accordingly direct that in addition to a sum of Rs. 90,000/- awarded by way of compensation the claimant appellant will also be entitled to an interest calculated at the rate of Rs. 9/- per cent per annum from the date of petition till the date of payment. If any amount has already been deposited either by the owner or the Assurance Company towards the compensation amount the same shall be liable to be adjusted and the balance amount only shall be realisable in terms of the order that we have passed.
18. With these observations F. A.F.O. No. 245 of 1978 is dismissed. F. A.F.O.NO.s295 of 1978 and F.A.F.O.No. 221 of 1978 are partly allowed. The award is modified to the extent mat in addition to Rs. 90,000/- (ninty thousands) the claimant will be entitled to interest at the rate of Rs. 9/- per cent per annum from the date of the petition till the date of realisation but the appellant in F.A.F.O.N0.221 of 1978 i.e. the new India Assurance Company will be liable only to the extent of Rs. 50,000/- and any amount in excess thereof will be realisable from the other respondents.
19. In view of partial success and failure of these two appeals and dismissal of appeal No. 245 of 1978 due to default we make no order as to costs.