Manak Mohta, J.
1. The instant appeal has been preferred against the judgment and award dated 4.12.1998 passed by the Judge, Motor Accidents Claims Tribunal, Sri Ganganagar in M.A.C.T. Claim Case No. 75 of 1996 whereby the claim petition filed by the claimants-appellants has been dismissed.
2. Briefly stated the facts of the case are that appellants' son, Milkiyat Singh, was cleaner on truck No. RJ 13-G 1755 and the said truck was going to Ambala (Punjab) being driven by the driver, one Sukhveer Singh. On 4.9.1995, when the truck reached at village Ghinola (Punjab), at that time another truck No. RRC 7166 also reached there, which was being driven by Kulvindra Singh, respondent No. 1. Both the trucks stayed there, tyre of truck No. RRC 7166 was to be replaced. Kulvindra Singh, his cleaner and Milkiyat Singh started to replace the tyre of the back wheel of truck No. RRC 7166. When they were replacing the tyre, the jack of the truck ( slipped as the land was wet due to rain, as a result of which, the truck turned turtle and Milkiyat Singh was caught beneath the truck and he sustained grievous injuries resulting in his death.
3. It was stated in the claim petition that incident took place due to negligence of Kulvindra Singh. At the time of the incident, the deceased was aged 25 years and was earning Rs. 2,500 per month. Due to the untimely death, the claimants-appellants suffered a loss. The claimants-appellants have been deprived from the income of their son, therefore, they preferred a claim petition for compensation to the tune of Rs. 16,21,000 under different heads.
4. In reply to the claim petition, respondent No. 1, Kulvindra Singh, driver of truck No. RRC 7166 admitted the incident in which Milkiyat Singh died but stated that he did not instruct Milkiyat Singh to replace the tyre of the back wheel. He was not responsible to pay compensation to the claimants. The deceased was wholly responsible for his own act of negligence. He also stated that it was not an accident but was a casual incident. He prayed that the claim petition may be dismissed.
5. In the reply submitted on behalf of respondent No. 2, United India Insurance Co. Ltd. has denied all the averments made in the claim petition. It was stated that the insurance policy of truck No. RRC 7166 stands in the name of Nand Singh, son of Wazir Singh. Further stated that at the time of incident, the truck was not in motion but was stationed. Claimants-appellants were only entitled to get compensation from the owner of the truck No. RJ 13-G 1755, as he was cleaner of that truck but the owner of the said truck has not been made party. It was prayed that the claim petition may be dismissed.
6. On the basis of pleadings of the parlies, following six issues were framed by the learned Tribunal:
(Omitted as in vernacular)
From the claimant's side, AW 1, Prakash Kaur, mother of the deceased and AW 2, Sukhveer Singh, driver of truck No. RJ 13-G 1755 were examined. No documentary evidence was produced. From the side of the non-claimants, no oral evidence was produced but got exhibited the insurance policy of the truck as Exh. A1.
7. After hearing the parties, the learned Juftge, Motor Accidents Claims Tribunal, Sri Ganganagar held that the accident has not occurred due to rash and negligent act of the driver of truck No. RRC 7166. Thus, the claimants-appellants are not entitled to get any compensation and dismissed the claim petition vide judgment and award dated 4.12.1998.
8. Being aggrieved by the impugned judgment and award passed by the learned Tribunal, the claimants-appellants have preferred the instant appeal before this court.
9. I have heard learned Counsel for the parties and carefully perused the record.
10. During the course of argument, the learned Counsel appearing for appellants submitted that the learned Tribunal has not properly considered the relevant provisions of law and also has not appreciated the evidence in right perspective, thus, the learned Tribunal has committed a grave error in dismissing the claim petition. It was contended that the death of Milkiyat Singh occurred in the accident arising out of the use of motor vehicle when he was replacing the tyre of the back wheel of the offending truck No. RRC 7166. It was further contended that the driver of the offending truck was Kulvindra Singh and without his consent, it was not possible to involve in replacing the tyre. Kulvindra Singh was negligent as he was knowing that due to rain, the land was wet and he did not prevent the deceased to replace the tyre, he is responsible for the accident and liable to pay the compensation. It was also submitted that death is admitted in accident now it was for the non-claimants to prove that there was no rash and negligent act on his part but no evidence has been produced, yet the learned Tribunal has decided issue No. 1 against the claimants that is not sustainable. It was also urged that the burden of proving issue No. 4 that accident occurred due to own fault was on the non-claimant No. 1 and he has not produced any evidence, yet the learned Tribunal has decided issue No. 4 also against the claimants. The findings on these issues are liable to be reversed. In support of his contentions, learned Counsel also placed reliance on the following authorities:
(1) Samir Chanda v. Managing Director, Assam State Trans. Corporation : AIR1999SC136 ;
(2) Kaushnuma Begum v. New India Assurance Co. Ltd. : [2001]1SCR8 ;
(3) Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC ;
(4) Ali Khan v. Vijay Singh ;
(5) Madhya Pradesh State Road Trans. Nigam v. Ramkala 1987 ACJ 611 (MP);
(6) Niroti v. Gopal Singh ;
(7) Medikonda Narasamma v. Shaik Basheer Ahmed : 2001(1)ALD1 ;
(8) United India Insurance Co. Ltd. v. Jamuna Bai ;
(9) Ram Chandra v. Rajasthan State Road Transport Corporation ; and
(10) Shivaji Dayanu Patil v. Vatschala Uttam More : [1991]3SCR26a .
11. It was further submitted that learned Tribunal has also committed a grave error in deciding issue No. 5 against the claimants. It was contended that though the deceased was cleaner on truck No. RJ 13-G 1755 but the accident has arisen out of the use of truck No. RRC 7166. Thus, the owner and insurance company of truck No. RJ 13-G 1755 were not necessary parties. The finding on that issue is contrary to law and deserves to be quashed and set aside.
12. It was urged that learned Tribunal has also determined the total quantum of compensation of Rs. 1,36,000 (inclusive of amount awarded under no fault liability) but that is not just and reasonable. The deceased was a young person of 25 years age at the time of accident and he was hale and healthy. There was scope for increase in future income but the learned Claims Tribunal has not considered this aspect and wrongly assessed the monthly income.
13. It was submitted that the claimants were fully dependent upon his income. He was the breadwinner in the family. Thus, it was prayed that amount of compensation may be modified and enhanced reasonably and the non-claimants-respondents may be directed to make payment to the claimants. It was prayed that the judgment and award of the learned Tribunal may be quashed and set aside and the claim petition be accepted. The appropriate compensation may be awarded and the appeal may be allowed.
14. On the contrary, the learned Counsel for the insurance company refuted the contentions placed by the appellants' side and urged that the claimants-appellants have not been able to prove their claim case. The incident did not occur arising out of the use of truck as the truck was not in motion at the time of incident. The policy-holder of the concerned truck has not been made a party. In this way, the insurance company cannot be made responsible to pay compensation. It was prayed that the appeal may be disallowed.
15. I have considered the rival contentions placed by the learned Counsel for the parties and have perused the findings on the issues given by the learned Tribunal and conclusion drawn thereon.
16. During trial, on behalf of claimants-appellants, AW 1, Prakash Kaur, mother of the deceased Milkiyat Singh, has appeared and she has stated that her son was in service as cleaner on the truck. She has further stated that her son died on the spot in truck accident, that truck was of Kulvindra Singh. She has admitted in cross-examination that at the time of accident, she was not present on the spot. She further stated that at the time of the accident, the truck was in a stationary condition. AW 2, Sukhveer Singh is the driver of truck No. RJ 13-G 1755, on which the deceased was employed as cleaner (khalasi). He stated that the deceased Milkiyat Singh died as he came beneath the truck. He has further stated that he did not see the accident but just after the accident, he saw the deceased was lying under the truck No. RRC 7166.
17. The relevant portions of his statement are reproduced here as under:
(Omitted as in vernacular)
He has stated that Kulvindra Singh driver of the truck was with him at that time. During that period, the land was wet due to rain. He has stated that the police also came on the spot at that time. In cross-examination, he has stated that he and Kulvindra Singh did not ask the deceased to replace the tyre. A copy of the police report, P.S. Ghanola which contains the fact of accident has been produced by the claimants-appellants along with the claim petition but that has not been exhibited. From the side of non-claimants, no oral evidence has been produced. Respondent-non-claimant No. 1, Kulvindra Singh, in his written statement in reply to para 13 has not disputed the death of Milkiyat Singh on the spot and in addition pleas while denying his responsibility, has stated that the death of Milkiyat Singh occurred while replacing the tyre due to his own negligence in setting the jack. The relevant portion of his reply is reproduced here as under:
(Omitted as in vernacular)
In this way, respondent-non-claimant No. 1 has also admitted that death of Milkiyat Singh was caused during replacement of tyre of the truck No. RRC 7166 as averred by the claimant's side.
18. The learned Tribunal while deciding jointly issue Nos. 1 and 4 mainly relied on the material that the offending truck No. RRC 7166 was not in motion and the driver of that truck, respondent No. 1, Kulvindra Singh, had not asked the deceased to replace the tyre of the truck. Thus, he was not negligent and he could not be made responsible. Further the deceased was replacing the tyre at his own motion, thus, the deceased was alone responsible for that incident and decided issue Nos. 1 and 4 against the claimants-appellants but the learned Tribunal has committed error in drawing such conclusion. It is revealed from the evidence that at the time when Milkiyat Singh was engaged in replacing the tyre of the offending truck No. RRC 7166, the driver of the said truck was there and he was also aware of this fact that the land was wet due to rain at that time but he did not prevent the deceased from removing the tyre of the truck. Thus, such omission on his part amounts to his negligence. If respondent No. 1 would have remained careful, the accident would not have happened. The respondent-non-claimant No. 1 has not appeared in the witness-box in rebuttal and in proving issue No. 4. It is revealed from the record that the death of Milkiyat Singh happened during the process of replacing the tyre of the offending ' truck No. RRC 7166. Thus, it is established that his death occurred in the accident arising out of the use of truck No. RRC 7166 and for that, respondent No. 1 was responsible. The deceased could not be held responsible for this accident. I have also considered the contentions placed on behalf of the insurance company that at the time of incident, the truck was not in motion but this contention is having no force.
20. Even in stationary condition, the vehicle remains a motor vehicle. Thus, it makes no effect that the truck was not in motion. Therefore, the findings of the learned Tribunal on issue Nos. 1 and 4 are not sustainable and liable to be set aside. It is held that death of Milkiyat Singh occurred in the accident arising out of use of offending truck No. RRC 7166 and the respondent No. 1 is responsible for the consequences. The above conclusion is supported by the authorities cited by the appellants' side. In the case of Samir Chanda v. Managing Director, Assam State Trans. Corporation : AIR1999SC136 , when the bus reached at the bus stop and passengers were alighting from the bus, a bomb exploded inside the bus resulting in causing injuries to the passengers. That was treated an accident arising out of the use of bus and motor accident claim was accepted.
17. In Ram Chandra v. Rajasthan State Road Transport Corporation , when bus was parked by its driver at bus stand for taking passengers. One passenger boarded the bus along with kerosene oil in jerrican. He lit the match-stick for smoking bidi. Kerosene oil in the jerrican caught fire and caused burn injuries to other passengers. It was held that accident occurred in the course of use of the bus and further held that use of the bus was not confined to the period of its motion and claims were held entertainable.
22. In recent case of Ali Khan v. Vijay Singh , father of the claimant Hazi Khan was sitting at Bhadkha Bus Stand on Barmer-Jaisalmer route, all of a sudden a tyre of running vehicle came off and hit the deceased Hazi Khan. It was held that the accident arose out of the use of motor vehicle and cannot be an act of God. The claim petition was held entertainable and compensation was awarded to the claimant.
23. In Shivaji Dayanu Patil v. Vatschala Uttam More : [1991]3SCR26a , there was a collision between a petrol tanker and truck, the injuries caused to the deceased by explosion and fire was held due to accident arising out of use of vehicle. It was held that the petrol tanker after collision lying turtle at a distance from road does not cease to be 'motor vehicle'.
24. I have also considered the contentions of the appellants with regard to the finding on issue No. 5. The truck No. RJ 13-G 1755 was not involved in accident. Merely because the deceased was cleaner on that truck, the owner and insurance company were not necessary parties in the present claim petition. Thus, the finding on issue No. 5 is quashed and this issue is decided against the respondents.
25. I have also considered the contentions on the point of quantum of compensation. It was submitted by the appellants' side that adequate compensation has not been determined but from the side of the appellants, no specific material has been placed with regard to the income of the deceased. AW 2, Sukhveer Singh, under whom, he was cleaner, has stated that the deceased was paid Rs. 1,000 per month as salary. The learned Tribunal on the basis of material has rightly estimated the monthly income of the deceased at Rs. 1,000 and out of that 1/3rd of the income has been deducted for his personal expenses and thus, Rs. 700 per month has been assessed as loss of dependency.
26. It is revealed from the record that the claimants mother and father were dependent on the income of the deceased and there was no rebuttal from the other side. Learned Tribunal has estimated the age of the deceased at 25 years on the basis of the statement AW 1, Prakash Kaur and applied the multiplier of 15 determined the compensation Rs. 1,26,000 (Rs. 700 12 15) and further awarded Rs. 10,000 for loss of love and affection. Thus, total compensation has been awarded Rs. 1,36,000, I consider it proper and reasonable. Thus, the amount of compensation determined by the learned Tribunal does not require any interference and that is to be maintained.
27. I have also considered the other contentions raised by the learned Counsel for the insurance company that the owner of the truck has not been made party to the claim petition. It is revealed from the record that the driver and insurance company of the offending truck are parties to the claim petition. The driver and owner are jointly and severally responsible for the payment of compensation. Thus, the contention of the insurance company is not tenable. In the instant case, as per the finding on issue No. 1, accident has occurred out of the use of offending truck No. RRC 7166 and the driver is held responsible. Thus, it is held that the driver and owner of the offending truck No. RRC 7166 are jointly and severally responsible for the payment of compensation amount. Admittedly, the truck is insured with respondent No. 2, therefore, the respondent No. 2 is responsible for the payment of awarded compensation amount to the claimants-appellants.
29. In the result, the appeal is partly allowed. The judgment and award of the learned Tribunal is set aside to the extent that claimants-appellants are not entitled to receive compensation. Further it is held that the claim to the tune of Rs. 1,36,000 (inclusive of amount awarded under no fault liability) as determined by the learned Tribunal is confirmed and allowed with interest at the rate of 7.5 per cent per annum is accepted in their favour and against the respondent-non-claimant Nos. 1 and 2.
30. The non-claimant No. 2 is further directed to pay or deposit the due balance amount of compensation in the learned Tribunal at Sri Ganganagar along with interest at the rate of 7.5 per cent per annum from the date of filing of the claim petition on the due amount within two months, failing which, the claimants-appellants shall be entitled to recover the same from the respondents. Costs made easy.