D.Y. Chandrachud, J.
1. This first appeal is directed against the judgment of the Motor Accidents Claims Tribunal, Nagpur, dated 21.9.1992 in Claim Petition No. 53 of 1987. The accident, out of which the claim petition before the Claims Tribunal arose, took place on 28.9.1986 at 9.30 a.m. on the Nagpur-Chindwara Road, near Mankapur within the jurisdiction of the Police Station Sadar. The deceased Abdul Jabbar who was 50 years of age, was travelling as a pillion rider on scooter bearing registration No. MHG 2295 belonging to one Abdul Habib. Abdul Habib was driving the scooter. A truck bearing registration No. CPQ 6450, belonging to respondent No. 1 came from behind, that is, from the Nagpur side. The truck was driven by one Pralhad Mishra. The truck dashed against the scooter. The scooter was dragged over a length of the road. It is alleged that the deceased got entangled with the front wheel and sustained crush injuries. There was cyclist riding a bicycle on the road, a little ahead of the point of impact. The cyclist was a young lad, Abdul Rashid aged 11 years. The deceased Abdul Jabbar died as a result of the injuries sustained in the accident. The truck driver did not halt the truck at the scene of accident, but sped away. The truck was ultimately apprehended by the local populace, at a certain distance away from the scene of accident. The driver was apprehended. Both the driver of the scooter and the cyclist survived.
2. Before the Motor Accidents Claims Tribunal the claim originally filed was in the total amount of Rs. 2,00,000. By an amendment the claim was sought to be enhanced to Rs. 4,50,000. The claimants before the Claims Tribunal were the widow of the deceased and 11 children, who are respectively the claimant Nos. 2 to 11. The claimant No. 2, Abdul Wahab, who was the eldest son, aged 23 years, expired during the pendency of the proceedings and his legal representatives were brought on record. On behalf of the claimants, Abdul Wahab has deposed in support of the case. Apart from his evidence, the claimants adduced the evidence of three other witnesses, that evidence being principally on the question of income which was earned by the deceased.
3. The Tribunal in its judgment dated 21.9.1992 came to the conclusion that the claimants had failed to prove that the accident had been caused due to negligence of the truck driver. This was on the basis that PW 1 Abdul Wahab, who deposed was not an eyewitness to the accident. The Tribunal noted that the cyclist as well as scooter driver had not been examined. Before the Tribunal, reliance was sought to be placed on the F.I.R. and upon the judgment of the Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., 1977 ACJ 343 in support of the plea that where the facts and circumstances spoke for themselves, the principle of res ipsa loquitur should apply. That contention was turned down by the Tribunal. Besides, the Tribunal has concluded in finding that the claimants had failed to establish their case in regard to the income of the deceased. In the circumstances, the application for compensation has been dismissed.
4. There are two principal issues which would arise in this case; the first being as to whether it is established that the accident out of which the death of the deceased occurred was due to negligence of the truck driver. The truck, it is common ground, was owned by the respondent No. 1. The respondent No. 1 did not participate in the proceedings before the Tribunal and the matter proceeded ex parte against him. In the event that it is held by this court that the negligence of the truck driver has been established the question would be as to whether the claimants have sustained their case for the grant of compensation, and if so, what would be the appropriate compensation to be awarded.
5. Insofar as the first question, namely, the question relating to the issue of negligence is concerned, it would be necessary to have regard to the evidence and to certain salient aspects of the case that emerge. PW 1, who has deposed in support of the claimants, stated in his examination-in-chief that his father expired in an accident, which took place on Chindwara Road on 28.9.1986. He stated that his father was riding on the pillion seat of the scooter bearing the registration No. MHG 2295, which was being driven by one Sheikh Habib, who was a friend of his father. The truck bearing registration No. CPQ 6450 came from the rear side and knocked down the scooter, on which the deceased was riding. The deceased fell down upon the impact and sustained injuries to his chest and head. His right leg and right arm were totally smashed. The deceased was then removed to the hospital, but he died within a short time. The scooter had also collided with a bicycle which was being driven by Abdul Rashid who fell down from the bicycle. In cross-examination, the witness candidly admitted that he was not an eyewitness to the accident.
6. The learned counsel for the appellants sought to urge that the absence of an eyewitness to the accident cannot be conclusive in every case of the question of negligence. Motor accidents take place in a variety, almost an infinite variety, of circumstances and while it is true that the presence of an eyewitness would lend a considerable degree of assurance to the case, a claim for compensation cannot be rejected merely on the ground of absence of an eyewitness. Besides, it was sought to be urged that in a case such as the present where the accident had taken place as a result of hit and run collision where the scooter involved had been hit from behind by a truck, it would in the very nature of things be almost impossible for the cyclist or for the rider of the scooter to depose to the circumstances in which the accident had taken place.
7. Reliance was placed upon the F.I.R. which was lodged in the C.R. No. 889 of 1986. The F.I.R. records that the truck which was being driven by the truck driver, bearing registration No. CPQ 6450 was proceeding from Nagpur to Chindwara at a high speed and the truck hit the scooter bearing registration No. MHG 2295. The scooter in turn impacted upon a bicycle. Both the pillion rider and the cyclist were injured. The pillion rider was removed to the Mayo Hospital and expired.
8. The salient aspect of the F.I.R. is that it adverts to the fact that the scooter had been found in the northern direction on the side of the tar road. The F.I.R. further records that bloodstains were found over a length of 80 ft. on the road. Obviously therefore, the scooter had been dragged over a considerable distance as a result of the impact with the truck. This in turn is an indicator of the truck being driven at a high speed. The truck driver did not stop upon the accident but sped away. The driver of the truck was apprehended at a distance of 5 km. from the scene of accident and since he was assaulted by the people, who apprehended him, he was also treated.
9. The circumstances in which the accident took place would warrant the application of the principle of res ipsa loquitur, which has been accepted by the Supreme Court in the context of a motor vehicle accident in the decision of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., 1977 ACJ 343 a Bench of two learned Judges of the Supreme Court held that normally it is for the plaintiff to prove negligence. However, in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but lies solely within the knowledge of defendant who caused it. The plaintiff can prove the accident but cannot prove how it happened to establish the negligence on the part of the defendant. This hardship is sought to be avoided by the application of the principle of res ipsa loquitur. The accident 'speaks for itself or tells its own story. The Supreme Court held that there are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It is then for the defendant to establish that the accident happened due to some other cause than his own negligence. In the present case, the nature of the accident, the circumstances in which it took place, the extent to which the scooter was dragged on the road, the presence of bloodstains to an extent of 80 ft. and the conduct of the truck driver in speeding away from the scene of accident are sufficient to warrant the application of the doctrine of res ipsa loquitur. The learned trial Judge was not, in my view, justified in rejecting the claim for compensation on the ground that the proposed witness for the claimants, who was the son of the deceased, was not an eyewitness to the accident. It is true that the person riding the scooter survived the accident. The cyclist who was hit by the scooter also survived. However, having regard to the nature of the accident where the scooter was hit from the rear side by the truck belonging to the respondent No. 1 which was driven by the driver employed by him, in my view, it would not be appropriate to reject the claim for compensation on account of the non-examination of the cyclist or the surviving rider on the scooter. I am of the opinion that the negligence of the truck driver is sufficiently established in this case. Significantly, the respondent No. 1 has chosen to remain absent throughout the proceedings before the Tribunal. The respondent No. 1 has, therefore, not been forthcoming in regard to the version of the truck driver in regard to the circumstances in which the accident took place.
10. The next aspect of the matter which needs consideration is as regards the claim for compensation which has been made on behalf of the claimants. The deceased was, according to the deposition of PW 1, 50 years of age at the time of the accident. The learned counsel for the contesting parties agreed that that is also the age which is disclosed in the post-mortem report. The deceased was the sole earner of the family and had as many as 11 children. PW 1 stated that the deceased was running his own shop by the name 'Janata Kawelu Bhandar', and that he was carrying on that business for 25 or 26 years. PW 1 has, however, stated in the cross-examination that he had no personal knowledge regarding the income of his father and he had not produced the shop and establishment certificate. He stated that the shop was in a gram panchayat area. He further stated that the deceased was the mutawalli of a masjid. The witness denied the suggestion, that the deceased was not carrying on any business. On behalf of the claimants an effort was made to examine three witnesses in support of their plea that a large business was being conducted by the deceased. PW 2 deposed that the deceased had purchased articles of the value of Rs. 15,000 to Rs. 20,000, from his shop every month. The learned trial Judge discarded the testimony of this witness, who had stated that the deceased was purchasing roof tiles and flooring from his shop situated at Gandhi Bag, Nagpur. The learned trial Judge was of the view that given the extent of the turnover, the deceased ought to have been an income tax assessee. But no such details were forthcoming. One of the witnesses, PW 3, stated that for a period of five years after the death of the deceased, his widow was assisting her sons and that they were running the shop. The learned trial Judge has, therefore, concluded that some income has been derived after the death of the deceased from the shop and, therefore, there was no loss as a result of the death. This reasoning is, to say the least, completely unsustainable. I find merit in the contention of the learned counsel appearing on behalf of the applicant that the mere fact that the widow of the deceased had continued to run the shop after the death of deceased, is not a reason to discard the claim for compensation. There was a shop belonging to the deceased. After the death of the sole bread-earner in the accident, it was left to the widow to eke out a living for herself and for the 11 children whom the deceased left behind. The fact that she took over the reins of the shop would not justify the inference that she was not entitled to the compensation or that she has derived income to the same extent, as the deceased in the conduct of the business. To deny a widow a claim to fair compensation for herself and 11 children on the ground that after all, she was left with a shop to run, would simply be a travesty of justice. The law cannot be oblivious to social reality. Learned counsel appearing on behalf of the applicant has submitted that claimants belong to a Muslim family and it is not unlikely that the widow of the deceased would have had in this case little wherewithal to run the business as effectively as did the deceased.
11. In assessing the compensation, the court will have to have regard to the deposition of PW 1, the son of the deceased, who stated that the deceased was earning an amount of Rs. 500 to Rs. 600 per month from the business. It would not be proper, in my view, to go beyond the statement of income which has been made in the deposition of PW 1. Out of an amount of Rs. 600 an amount of 1/3rd can be excluded as expenses of the deceased. The yearly income of the deceased, as borne out from the evidence on record, was therefore assessed at Rs. 4,800. Taking a multiplier of 13, the appropriate compensation to the widow and other the claimants would come to Rs. 62,400. In my view, in addition to that the appellants are entitled to interest at the rate of 9 per cent per annum from the date of the institution of the claim petition before the Tribunal.
12. In the circumstances, this first appeal is allowed. The impugned judgment and order of the Motor Accidents Claims Tribunal, dated 21.9.1992 is quashed and set aside. There shall be a decree and order against the respondents directing them to pay jointly and severally an amount of Rs. 62,400 together with interest at the rate of 9 per cent per annum from the date of institution of the claim petition before the Tribunal. The claimants will also be entitled to costs.