O.P. Sexena, J.
1. This is an appeal against the order dated 13-1-1977 passed by the learned, Motor Accidents Claims Tribunal, Aligarh dismissing a claim petition with costs on parties.
2. The facts giving rise to this appeal are that on 30-10-1970 at about 3.30 p.m. between furlongs 6 and 7 of miles 803-804 of the Khurja-Aligarh had an accident took place in which Jawahar Vora was killed. Jawahar Vora, his wife Kundan Bala Vora and some others were on their way from Rajkot to Bukaro and were travelling in an Ambassador car No. BRV 1666. They were coming from the side of Khurja and were going to Aligarh. The car was being driven by one Govind. U.P. Roadways bus No. UPB 4455 was on its way from Aligarh to Khurja. It was being driven by Vijai Pratap Singh. As a result of the accident, the car was thrown away in a pit on the left side of the road. By the time people could come to the rescue of the victims of the accident and Jawahar Vora could be taken out, he was dead. He was 32 years old. He was cashier-cum-accountant with M/s. Chanchani Brothers (Contract) Pvt. Ltd., Dhanbad, Bihar on a salary of Rs. 400/- per mensem.
3. The claim petition was filed by his widow, Kundan Bala Vora and minor daughter, Rashmi for Rs. 80,000/- as compensation with the allegations that the accident was caused due to the rash and negligent driving of the bus.
4. The claim petition was contested by the respondent mainly with the allegations that the bus was being driven carefully and cautiously and there was no negligence on the part of the driver of the bus. It was said that the accident was caused due to the reckless driving of the car.
5. The learned Claims Tribunal believed the version of the opposite party and held that the accident was caused due to the negligence of the driver of the car. He consequently dismissed the claim petition. Hence this appeal.
6. The first point for determination in this appeal is as to whether the accident was caused due to the composite negligence of the drivers of the car and the bus and the petitioners are entitled to receive compensation for the loss of their sole earning member of the family.
7. P.W. 1, Kundan Bala Vora, P.W. 2., Yashpal Khurana and P.W. 3, B.K. Sharma were examined in support of the claimants version.
8. D.W. 1, A.P. Awasthi, Assistant General Manager, Aligarh Region, D.W. 2, S.S. Seth, Foreman, D.W. 3, Kanchan Singh who was travelling in the bus, D.W. 4, Vijai Partap Singh, the driver of the bus, and D.W. 5, Yogendra Pal Singh, the Station In-charge, Aligarh Roadways were examined in support of the opposite party's version.
9. The evidence shows that the accident took place on 30-10-1970 at 3.30 p.m. within the municipal limit of Aligarh town near Swadeshi Bima Cotton Mills. D.W. 5 Yogendra Pal Singh, Station In-charge made on the Spot enquiry and submitted report Ex. A-1 on 24-11-1970. D.W. 2, S.S. Seth, Foreman examined the vehicle and submitted report Ext. A-2 A report of the occurrence was also lodged by Vijai Pratap Singh but the same has not been duly proved.
10. There is a sketch map attached to the accident report Ext. A-1. It shows that road was 16 feet wide. The patri towards the north was 10 feet wide. The patri towards the south was 12 feet wide. The car is said to have been thrown away in a pit towards the left of the patri on its way from Khurja to Aligarh. The road was wide enough for the bus and the car to pass conveniently. The witnesses examined by both the sides have tried to underscore the responsibility of the driver of the car or the bus.
11. The evidence of P.W. 1, Kundan Bala Vora shows that the party consisted of others as well and it stopped at the Octroi Post of Aligarh at about 1.30 or 2.00 p.m. that they took their lunch there and that they had proceeded hardly 2 or 3 furlongs when the accident took place. She, of course claimed that the car was moving towards the left side of the road and the bus was coming at a very fast speed on the wrong side. Her version is that the driver of the car tried to swere the car on the patri towards the left but in the meanwhile the bus dashed against the car.
12. P.W. 2, Yashpal Khurana was sitting at the shop of Dr. Goel and was facing towards Aligarh side of the road when the accident took place. His version is that the bus was coming at a fast speed while the car was moving at a slow speed when the accident took place. The place where the accident took place was towards the right of the centre of the road from Aligarh side. The bus could stop after 5 to 7 paces. He had a wrong impression that the car was a Fiat car while it was an Ambassador car.
13. P.W. 3, B.K. Sharma lives in the building of Swadeshi Bima Cotton Mills. He was also sitting at the shop of Dr. Goel and was facing towards the road coming from the side of Aligarh when the accident took place. He also stated that the bus was moving on the wrong side of the road at a fast speed while the car was coming at a slow speed. He did not, however, see the car driver and his version regarding the speed of the car could not be accepted. He gave the speed of the bus at 40 kms. per hour. He stated that both the wheels of bus were on the metal road at the time of the accident.
14. D.W. 1, R.P. Awasthi, D.W. 2, S.S. Seth and D.W. 5 Yogendra Pal Singh were not eye-witnesses.
15. D.W. 3, Kanchan Singh claimed that he was travelling in the same bus and the car was coming at a very fast speed almost waving on the road, that the driver of the bus brought the bus on the patri of the left side and applied the brake and stopped it and that after the bus had stopped the accident took place.
16. D.W. 4, Vijai Pratap Singh stated that the car was coming at a very fast speed on the wrong side of the road, that he brought the bus on kacchi patri and tried to stop it and that the car struck against the right side of the bus.
17. Ext. A-1 shows the place where the car was thrown away on the extreme left of the road on its way from Khurja.
18. The learned Claims Tribunal has drawn adverse inference against the claimants on account of the non-production of the driver. The claimants are residents of district Hazaribagh, Bihar. The accident took place at Aligarh. The sole earning member of the family is dead. The claimants were severely handicapped. The driver of the car had disappeared after the accident. In these circumstances it cannot be said that the driver was deliberately withheld by the claimants. There is no evidence in support of the observation made by the learned Claims Tribunal that the driver of the car was possibly not an expert driver. The evidence of P.W. 1, Kundan Bala Vora shows that the driver had taken the car all the way from Dhanbad to Rajkot and was bringing it back from Rajkot on way to Dhanbad. An inexperienced driver could not have, made such a long journey. The learned Claims Tribunal has disbelieved the witness examined by the claimants and has preferred the evidence adduced by the. opposite party. The mere fact that P.W. 2, Yashpal Khurana forgot that it was an Ambassador car and said that it was a Fiat car could not be a sufficient ground for disbelieving him. It could be a lapse of memory on his part. The reason given by the learned Claims Tribunal for disbelieving the statement of P.W. 3, B.K. Sharma is also inadequate. Kundan Bala Vora was also travelling in the car and her evidence could not be brushed aside merely because she is the widow of the victim. D.W. 3, Kanchan Singh and D.W. 4, Vijai Pratap Singh have tried to put a gloss over the truth. Negligence is the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the human affairs, would do or do something which a prudent and reasonable man would not do. The test is whether the driver could by exercising normal diligence and caution, avert the accident. In view of the fact that the road was 16 feet wide and it had patries of 10 feet and 12 feet, we are of the opinion that the bus and the car could easily cross each other and the accident of the nature could not take place except when both the drivers were negligent. It was due to the negligence of the drivers of the bus and the car that the bus struck against the car and there was such a violent impact that the car was thrown away in a pit on the extreme left of the road. The accident took place due to the composite negligence of both the drivers. We are unable to agree with the learned Claims Tribunal that the accident took place solely due to the negligence of the driver of the car. There was no negligence on the part of the deceased and as the accident was caused due to composite negligence of both the drivers, the claimants are entitled to compensation.
19. The second point for determination in this appeal is as to what compensation the claimants are entitled.
20. The statement of P.W. 1, Kundan Bala Vora shows that her husband Jawahar Vora was about 32 years old. He was cashier-cum-accountant in a business firm at Dhanbad. Paper No. 56-Ka is the certificate given by the firm which shows that the deceased was getting Rs. 400/- per mensem along with bonus. He could have continued to serve up to the age of 55 years. Out of a sum of Rs. 400/- he could spend Rs. 150/- on himself and Rs. 250/- on his family. The annual loss suffered by the family was Rs. 3,000/- per annum. The total pecuniary loss suffered by the family for a period of 23 years would come to Rs. 69,000/-. In view of the case reported in Motilal Vishwakarma v. Guru Bachan Singh 1980 A.C.J. 462 (Allahabad) a deduction of 30 per cent has to be made for lump sum payment. On deducting Rs. 20,700/- the balance compensation would come to Rs. 48,300/-.
21. The learned Counsel for the appellants placed reliance on cases reported in Manjula Devi Bhuta v. Manjushri Raha 1968 A.C.J. 1 (M.P.) Sushila Rani Sharma v. Somnath. 1974 A.C.J. 505 (P & H) Golak Chandra Das v. Kaushalya Nayak 1974 A.C.J. 48 (Orissa) Devki Devi Tiwari v. Raghunath Sahai Chatrath 1978 A.C.J. 169 (All.) and Karunakar Pradhan v. Sarojini Mishra 1980 A.C.J. 121 (Orissa) in support of the contention that the rule of apportionment of liability applies in a case of contributory negligence, i.e., where the injured is himself also guilty of negligence. In a case of composite negligence there is joint and several liability for the whole loss.
22. In the case reported in Ramadhin Singh v. Murari Lal Agarwal 1979 A.C.J. 198 (Allahabad) both the drivers had been impleaded and the learned Claims Tribunal apportioned the liability between the truck driver and the bus driver in the ratio of 50 : 50. On page 201 it was held:
Where more than one person is concerned in the commission of a wrong, the person, who is wronged, has his remedy against all or any one or more of them at his choice. The wrongdoer is liable for the whole damage and it does not matter whether they acted between themselves as equals. In our judgment, it was necessary to apportion the degree of negligence between the drivers of the bus and the truck.
23. We are thus unable to accept the contention of the learned Counsel for the respondent that the damages should be apportioned between the two drivers and the liability of the respondent should be fixed accordingly. Both the drivers of the car and the Roadways bus are jointly and severally liable to pay the entire compensation to the claimants. The claimants are entitled to recover Rs. 48,300/- from the respondent. It will be for the respondent to seek contribution from the driver of the car.
24. We, therefore, hold that the claimants are entitled to a compensation of Rs. 48,300.
25. The appeal is allowed and the order passed by the learned Claims Tribunal is set aside. The claim is decreed for a sum of Rs. 48,300/- along with interest at the rate of 6 per cent per annum from the date of petition till the date of payment and proportionate costs against respondent. The costs of the appeal shall be easy.