R.L. Anand, J.
1. By this judgment I dispose of two F.A.O. No. 2094 of 1994 titled Rachhpal Singh and others v. Bhagat Ram and another, and No. 2095 of 1994 titled Rachhpal Singh v. Bhagat Ram and another as both the appeals can be disposed of by one judgment. Both the appeals have arisen from the award dated 17.9.1994 passed by Motor Accident Claims Tribunal, Ambala which dismissed both the claim petitions. One claim petition was filed by RachhpalSingh, Harpinder Singh, minor sons of late Karamjit Singh and Smt. Charanjit Kaur widow of late Karamjit Singh against Bhagat Ram, owner of the vehicle, and New India Insurance Company and the second claim petition was filed by Rachhpal Singh, minor son of Karamjit Singh deceased, through his mother Smt. Charanjit Kaur, who claimed compensation for the alleged injuries sustained by him in the vehicular accident. It may be mentioned here that initially claim petitions were filed against the driver, owner and insurance company, but later on the name of driver Shiv Ram was deleted at the instance of the claimants.
2. The facts of the case can be described in the following manner :
On 4.8.1991, Karamjit Singh deceased along with his wife Charanjit Kaur, his sons Rachhpal Singh and Harpinder Singh and his relatives Nichhattar Singh, Major Singh and their family members was travelling in MatadorNo. DL-5C-2410 from Delhi to Chandigarh. At about 7.00 P.M. the vehicle reached near village Saha on Haryana highway and at that time it was being driven by Shiv Ram in a very rash and negligent manner and in the middle of the road. The driver applied brakes all of a sudden and brought the vehicle towards left side to let the other vehicles coming from the opposite direction to pass. However, he could not control his vehicle and dashed the same against a Kikar tree standing on the left side of the road. In. this manner the accident took place. Karamjit Singh deceased received multiple injuries on account of accident. Rachhpal Singh also sustained injuries in the shape of fracture of his left leg. Karamjit Singh, however, succumbed to his injuries when he was being taken to PGI, Chandigarh. He was running STD in village Badheri, U.T. Chandigarh and was also a property dealer and used to earn Rs. 4,000/- per month. The claimants were dependent upon the income of the deceased. A sum of Rs. 5 lac has been claimed as compensation regarding the death of Karamjit Singh and a sum of Rs. 3 lac was claimed by way of compensation on account of injuries sustained by Rachhpal Singh, who was aged about 11 years at the time of accident and was a student.
Notice of the claim petitions was given to the respondents. These were contested by the owner of the vehicle, who alleged that the vehicle in question was never involved in the accident as alleged by the claimants. In fact, the said vehicle was borrowed from him by Ranjit Singh for Karamjit Singh deceased on 4.8.1991. Respondent No. 2 insurance company also filed separate written statements and its stand was that the vehicle in question was not involved in the accident. However, it was admitted that the vehicle in dispute is owned by Bhagat Ram, respondent No. 1 and the same was insured with it for the period from 25.5.1991 to 24.5.1992. It was also pleaded by the insurance company that the vehicle was being driven by its driver without a valid driving licence.
3. From the pleadings of the parties, the learned Tribunal framed the following issued :
1. Whether the accident took place due to rash and negligent driving on the part of driver of offending vehicle No. DL-5C-2410 as alleged OPP
2. If issue No. 1 is proved, whether the claimants are entitled to any amount by way of compensation If so, how much and from whom ?
3. Whether respondent No. 3 insurance company is not liable to pay any amount in view of prey objections No. 1 to 6 taken in the written statement OPR - insurance company.
4. Relief.
4. The parties led evidence in support of their respective cases and on conclusion of the proceedings, the learned Tribunal dismissed the claim petitions by holding that the claimants have failed to prove that the accident was caused due to rash and negligent driving on the part of driver of the vehicle. Resultantly issue No. 1 was decided against the claimants and in favour of the respondents. Issue No. 2 was decided partly in favour of claimants. The Tribunal assessed Rs. 96,000/- by way of compensation for the death of Karamjit Singh, besides Rs. 4,000/- on account of expenditure on the lass rites of the deceased. Thus a total compensation of Rs. 1 lac was assessed in the death case. With regard to the alleged injuries of Rachhpal Singh the total compensation was assessed at Rs. 5,000/-. Issue No. 3 was decided in favour of the insurance company and against the claimants for the reasons given in areas 31 and 32 of the impugned award. Resullantly both the claim petitions were dismissed in view of the findings given by the Tribunal on issues No. 1 and 3. In this manner, these two appeals.
5. I have heard Mr. Pritam Saini, Advocate for the appellants, Mrs. Sangita Dhanda, Advocate on behalf of respondent-insurance company and with their assistance have gone through the records of the case.
6. Before I deal with submissions raised by the learned counsel for the parties, it will be appropriate for me to reproduce paras 11 to 23 of the impugned award while disposing of issue No. 1 and paras 31 and 32 while disposing of issue No. 3, which are as under :-
'11. Issue No. 1.
In order to prove this issue, one of the claimants Charanjit Kaur appeared as P.W. 2 and deposed that on 4.8.1991 she was travelling with her deceased husband Karamjit Singh and her relatives Major Singh, his wife Amarjit Kaur, Karamjit Singh and her father Nichhattar Singh and her sons, namely Rachhpal Singh and Harpinder Singh also travelling in the said Matador. They were travelling from Delhi to Chandigarh. The vehicle was being driven by its driver Shiv Ram at a very fast speed and in the middle of the read and hence when the vehicle reached near village Saha, the driver could not control the vehicle and struck the same in a tree standing in 'kutcha' portion atsome distance from the road. Due to the collision her husband Karamjit Singh received head injury and her son Rachhpal Singh also received injury on his left leg.
12. In the cross-examination she has deposed that she informed the police after the accident and that police reached the spot before they left for hospital. She further deposed that they were puzzled on account of the accident and they signed some papers on the asking of the police. She further deposed that she did not talk to her cousin Ranjil Singh before filing the first petition. She also deposed that she could not say as to whether the vehicle was taken on hire by him or as to whether the same was borrowed as the fact was not told to her by her husband who later on succumbed to the injuries.
13. Another witness examined by the claimant is Ranjit Singh son of Bakshish Singh who appeared as PW1 and deposed that Charanjit Kaur claimant is daughter of his maternal uncle, that on 4.8.1991 Karamjit Singh had come to his residence and told him for arranging a Matador from Delhi to Chandigarh, that the matador having No. DL-5C-2410 was arranged by him for the purpose, that Bhagat Ram was the owner of the vehicle who was known to him for the last 10/12 years; that no payment was made to Bhagat Ram; that the vehicle was borrowed from Bhagat Ram as he was his friend; that he told this fact to Charanjit Kaur in the month of April, 1992 at village Khaila UT Delhi in the house of his elder sister.
13. In the cross-examination he deposed that he did not know the name of father of Bhagat Ram; that he did not know even residential address of Bhagat Ram; that some relatives of Karamjit Singh had come from Canada and that they were to go to Chandigarh from Delhi and hence on the request of Karamjit Singh, he arranged the vehicle for the journey.
14. In rebuttal to this evidence of the claimant, the respondent examined Moti Ram Head Constable from P.S. Mullana who produced file concerning proceedings under Section 174 Cr. P.C. relating to Karamjit Singh deceased. RW2 Pale Ram Head Constable who had given report Ex. RW2/A as per the record to a person from insurance company who approached him in the police station on 3.3.1992. RW3 Kushal Singh, ASI is the most material witness. He deposed that on 4.8.1991 he was posted as ASI in the Police Station, Mullana; that a message was received by him from PGI, Chandigarh regarding death of Karamjit Singh in the area of P.S. Mullana and hence he visited PGI on 5.8.1991; that he prepared report under Section 174 Cr. P.C. and recorded statements of Gurcharan Singh, Mohan Singh, Jagir Singh, Nichhattar Singh and Amar Singh; that the report along the statement of the witnesses which are in the hand is Ex. RW3/A;that he obtained signatures of the witnesses on their statements; he could not take any vehicle in police possession as number of vehicle involved in the accident was not known to any of the persons on the side of the deceased; nobody approached him in the police station as well and nobody told him about the number of the vehicle in the accident; that some lelatives of the deceased visited Police Station, Mullana ten days after the accident and met the S.H.O. and even at that time the number of the vehicle involved in the accident was not told to the S.H.O and hence the case was filed as untraced as per report of S.H.O., Police Station, Mullana which is Ex. RW3/B. In the cross-examination, a suggestion was given to this witness on behalf of the claimant that after ten days of the accident Charanjit Kaur accompanied by some other relatives and some other persons from her village visited Police Station, Mullana and informed the number of the vehicle and the name of the driver involved in the accident.
15. RW4 is K.K. Suri who retired as Flt. Lt. from Indian Air Force and who was appointed as investigator by the insurance company to investigate regarding this accident. He deposed that it came to his investigation that the vehicle involved in the accident was hired by deceased from Delhi to Chandigarh and his report is Ex. RW4/A.
16. A careful perusal of the evidence adduced by the claimants discussed above shows that we are having uncorroborated testimony of Charanjit Kaur, one of the claimants on the point that the vehicle involved in the accident is Matador No. DL-5C-2410. Even none of the other relatives of Charanjit Kaur who were also travelling in the said vehicle at the relevant time has been examined. Even she has deposed that she became puzzled after the accident and that she just signed some papers on the asking of the police. She also deposed that her husband did not tell her about the fact as to whether the vehicle was borrowed or as to whether the vehicle was hired by him. She has failed to explain as to how she came to know about the registration No. of the vehicle involved in the accident. She nowhere deposed that she observed the number of the vehicle after the accident. However, when she was puzzled and she immediately came to PGI to attend her injured husband, it is believable that in these circumstances, she noted down the number of the vehicle involved in this accident.
17. Further she has taken the stand that police reached the spot of accident before they left for hospital. Hence had this been the fact, police would have taken the vehicle involved in the accident in possession there and then. However, it is not so in this case. Even no FIR was registered in this case. A quite contrary suggestion has been put to Kushal Singh ASI in the cross- examination that number of the vehicle involved in the accidentwas told by Charanjit Kaur and her relatives after len days of the accident when they visited police station, Mullana. When police reached the spot immediately after the accident, as is the deposi-tion of Charanjit Kaur, it is not explained as to where was the necessity of telling the number of the vehicle involved in the accident to the police again after ten days of the accident. This is a major contradiction in the stand of the claimants.
18. So far as deposition of Ranjit Singh, a near relative of Charanjit Kaur claimant is concerned, the same is also not believable and that the same is also an after-thought version. It is not believable that a near relative who would arrange the vehicle without any payment for journey from Delhi to Chandigarh for the deceased would not tell this fact for a period of about 8 months and that he would disclose the fact after such a long period. Moreover, he could not tell even residential address of Bhagat Ram owner of the vehicle without any payment to him for journey from Delhi to Chandigarh.
19. Kushal Singh, ASI, police when appeared as RW3 categorically deposed that he visited PGI on receipt of a message and recorded statement of Gurcharan Singh, Mohan Singh, Jagir Singh, Nichhattar Singh and Amar Singh and that none of the witnesses had told him the number of the vehicle involved in the accident. Statements of these persons are also signed the report is Ex. RW3/A. None of these persons who are relatives of the claimant has appeared before this Court to depose that they never made any such statement to Kushal Singh ASI and that no such statement was signed by them. Kushal Singh ASI was having no enmity with the claimant. There is nothing as to why he should have prepared a false report.
20. Further even the claimant has initially taken the stand in this claim petition that the vehicle was hired by Karamjit Singh deceased. However, later on the petition was sought to be amended and the plea was sought to be added that the vehicle was borrowed without any payment through Ranjit Singh. However, as already discussed in the facts and circumstances of the case, this plea is not believable.
21. There is another circumstance of this case as well. The fact that the vehicle No. DL-5C-2410 was involved in the accident has been denied in the written statement by owner of the vehicle. The best witness to depose as to whether any accident was caused with the vehicle on 4.8.1991 was the driver of that vehicle. However, the driver of the vehicle was given up by the learned counsel for the claimant by giving statement that he did not want to proceed against him. When the factum of accident is denied, the version of the driver was material for decision of the fact as to whether the vehicle No. DL-5C-2410 was involved in the accident or not and this fact is also fatal to the caseof the claimant on the point as to whether this very vehicle was involved in the accident.
22. From the evidence which has come on the record it appears to this Court that some vehicle was taken on hire by Karamjit Singh deceased for traveling from Delhi to Chandigarh, however, on the way the vehicle met with an accident and Karamjit Singh received injuries. Some minor injury was also received by one of the son of Karamjit Singh. However, the other occupants did not receive any injury, They must have been satisfied that there was no rash or negligent driving on the part of the taxi driver and hence he was allowed to go. The only other possibility could be that the taxi driver ran away after the accident. However, number of the taxi involved in the accident was not noted by any of the occupants as they were in a hurry to take Karamjit Singh to PGI. However, later on the number of the vehicle involved in the accident has been got written as DL-5C-2410, as the same was also insured.
23. Taking from any angle, I am of the view that the claimants have failed to prove that the accident was caused due to rash and negligent driving on the part of driver of vehicle No. DL-5C-2410. Accordingly, this issue stands decided against the claimants and in favour of the respondents.
XX XX XX XX
31. Issue No. 3.
It has been argued by the learned counsel for the insurance company that even if it is proved that the accident was caused due to rash and negligent driving on the part of the driver of the vehicle No. DL-5C-2410, insurance company is not liable to make payment of compensation as the vehicle was used at the time of accident against the terms and conditions of insurance policy, Ex. R1. Perusal of Ex. Rl shows that there is condition that the policy does not cover the use of the vehicle for hire.
32. There is force in the arguments of the learned counsel for insurance company. In this case as already discussed above while deciding issue No. 1 in the original claim petition it was mentioned by the claimants that the vehicle was hired by Karamjit Singh deceased for journey from Delhi to Chandigarh. However, petition was amended later on and a plea was taken that the vehicle was borrowed by Karamjit Singh through his relative Ranjit Singh. However, para No. 10 of the petition contained the same fact that the vehicle was hired by the deceased. The subsequent plea of the claimants that the vehicle was borrowed through Ranjit Singh is not believable on the ground discussed above while deciding issue No. 1. Hence as the vehicle was hired at the time of accident, insurance company is not liable to make compensation.'
7. The learned counsel for the appellants submittedthat the learned Tribunal fell in error while deciding issue No. 1 and 3. He also submitted that issue No. 2 has also not been rightly decided by the Tribunal while assessing compensation with regard to death of Karamjit Singh. He further submitted that there is direct evidence that the accident in question took place due to rash and negligent driving of Shiv Ram and the factum of accident is also admitted by the surveyor who was appointed by the insurance company to probe about the death of Karamjit Singh. As against this, the learned counsel for the respondent-insurance company submitted that it is not proved on the record that the accident had taken place due to rash and negligent driving on the part of Shiv Ram driver and in this view of the matter the insurance company is not liable to pay any compensation. According to the learned counsel the best person was Shiv Ram, driver of the vehicle who could explain his conduct, but he has not been examined by the claimant in support of their case.
8. I do not subscribe to the submission raised by the learned counsel for the respondent. There is direct evidence to show that this accident had taken place due to negligence of the driver of the offending vehicle. Smt. Charanjit Kaur while appearing in the witness-box has categorically stated that she along with her husband and her relatives Major Singh, his wife Amarjit Kaur, Karamjit Singh and her father Nichhattar Singh and her sons namely Rachhpal Singh and Harpinder Singh was travelling in the offending vehicle from Delhi to Chandigarh on the day of accident and Shiv Ram was the driver of the vehicle, who was driving the vehicle at a very fast speed in the middle of the road and when the vehicle reached near village Saha, the driver could not control the vehicle and struck the same in a tree standing in the Kutcha portion. There is no rebuttal to the statement of Charanjit Kaur. Moreover, there is ample evidence on the record to suggest that the accident did take place on that day. Firstly, there are proceedings under Section 174 Cr. P.C. Ex. RW3/A. So much so, the insurance company nominated K.K. Suri, its own surveyor, to verify the death of Karamjit Singh, who came to the conclusion that Karamjit Singh died due to the accident which took place on 4.8.1991. Moreover, there is post mortem report regarding the death of Karamjit Singh on the record. From all these factors it is established that Karamjit Singh died in a vehicular accident on account of rash and negligent driving on the part of Shiv Ram. Therefore, the Tribunal was not right in saying that the accident did not take place on account of rash and negligent driving on the part of Shiv Ram. In this view of the matter, I reverse the finding of the Tribunal on issue No. 1.
9. With regard to issue No. 2, the case set up by the claimants before the Tribunal was that deceased Karamjit Singh was earning Rs. 4,000/- per month. He was a property dealer and was also running a P.C.O. Admittedly, there is no satisfactory evidence with regard to the fact that the deceased was working as a property dealer. No document regarding sale or purchase of any property has been brought on record toindicate that Karamjit Singh acted as a property broker in any property transaction. No vendor or vendee of any property has been examined. In these circumstances, it is difficult for this Court to draw an inference that the deceased was a property dealer/broker. Also, there is no satisfactory evidence about the running of P.C.O. by the deceased. The record of telephone department is the best evidence which has not been brought on the record. Be that as it may, there are certain proved facts from which this Court is in a position to draw a reasonable inference about the income of the deceased and the proved facts are that he was a married person. He has left behind him a widow and two male children. According to post mortem report, he was a young person of 36 years at the time of his death and was hale and hearty. Meaning thereby that he was an able-bodied person. Being an able- bodied person in the year 1991, this Court can reasonably draw an inference about the income of such a person, which is calculated at Rs. 2,000/- per month. By deducting the personal expenses of the deceased, the dependency of the claimant:, is calculated at Rs. 1,000/-per month and by applying the multiplier of 16, the claimants are entitled to a compensation of Rs. 1,92,000/-. In this, view of the matter, 1 modify the findings of the Tribunal on issue No. 2 so far as the income of Karamjit Singh deceased is concerned.
10. With regard to the compensation of the injuries of Rachhpal Singh, I am of the opinion that there is no cogent evidence about his injuries, therefore, his claim petition deserves to be dismissed. No M.L.R. has been proved: no doctor has been examined and he himself also not appeared in the witness-box though he was minor at that time. But in the absence of any cogent and reliable evidence, I am not inclined to award any compensation to him for his alleged injuries.
11. Coming to the finding on issue No. 3, I am of the opinion that the finding on this issue also requires reversal. The Tribunal has been guided that in the earlier claim petition the case set up by the claimants was that the offending vehicle was hired by Karamjit Singh from its owner. But subsequently this stand has been changed. In the unamended claim petition it was alleged in para 24 of the claim petition as follows :
'The deceased Karamjit Singh in fact hired the said Matador No. DL- 5C-2410 from Singh Travels, 17 Rehman Building, Old D.T.C. Bus Stand, Shahdara, Delhi-32 for conveyance from Delhi to Chandigarh.'
This claim petition was filed by Charanjit Kaur. The information which had been mentioned in the earlier petition was a derived one because she was not accompanying her husband when the vehicle was hired and under what circumstances it was hired. Later on she came to know that in fact that vehicle was not hired by her husband. Rather it was borrowed by Ranjit Singh, who is the cousin brother (Bua's son) of deceased Karamjit Singh. At the most it is an admission in the earlier claim petition which can always be proved to be erroneous especially when Charanjit Kaur is filing theclaim petition on some derived information, with regard to the arranging of the vehicle. As per the amended claim petition the case of the claimants was that the vehicle was arranged by the father of the injured, who died in this accident, from respondent No. 2 for conveyance from Delhi to Chandigarh through Shri Ranjit Singh, who is his cousin brother (Bhua's son) of deceased Karamjit Singh. Said Ranjit Singh appeared as PW1 before the Tribunal and his statement before the Tribunal was that Charanjit Kaur is the daughter of his maternal uncle. On 4.8.1991, Karamjit Singh deceased had come at his residence and told him to arrange some Matador from Delhi to Chandigarh and a Matador having No. DL-5C-2410 was arranged by him for the purpose from Bhagat Ram, who was the owner of the vehicle. He borrowed the vehicle as Bhagat Ram was his friend. This witness was cross-examined and nothing came out from his cross- examination from which I may be able to come to the conclusion that Ranjit Singh is telling a He. Moreover, in such like cases assistance is always taken from a relative or friend if he can arrange a vehicle for journey or not. The best person who could rebut the evidence of Ranjit Singh is the owner of the vehicle, but he has not come in the witness box to contradict the statement of Ranjit Singh. Resultantly, I hold that the vehicle, in fact, was borrowed by Ranjil singh from Bhagat Ram for the benefit of Karamjit Singh who was to travel from Delhi to Chandigarh. The offending vehicle was insured with the insurance company. Therefore, the insurance company cannot escape from its lability.
12. These claim petitions also could not fall on the ground that Shiv Ram, driver of the offending vehicle, was not added as a party. The scheme of Section 166 of the Motor Vehicle Act suggests that it is never the intention of the legislature that in order to file a valid claim petition names of the respondents should be indicated in the head note of the petition. The names of the driver, owner and insurance company are given so that they could be served. As per law only the claim petition is required to be filed that this requirement has been fulfilled in this case.
13. In these circumstances, while dismissing the appeal bearing No. 2095 of 1994 titled Rachhpal Singh v. Bhagat Ram and another, appeal No. 2094 of 1994 titled Rachhpal Singh and others v. Bhagat Ram and another is allowed and the claimants are awarded compensation to the tune of Rs. 1,92,000/- along with interest @ 12% per annum from the date of filing of the claim petition till payment. The compensation shall be distributed equally among the three claimants/appellants namely Rachhpal Singh, Harpinder Singh and Smt. Charanjit Kaur. It is stated at the Bar that Rachhpal Singh claimant with the passage of time has become 'major and now he is 20. Harpinder Singh claimant is still minor. Therefore, the compensation falling to the share of Harpinder Singh shall remain deposited in a scheduled bank till he attains the age of majority. The compensation falling to the share of Rachhpal Singh and Smt. Charanjit Kaur along withinterest shall be paid to them in equally shares. No order as to costs.
14. Order accordingly.