Bhagabati Prasad Banerjee, J.
1. This is an appeal preferred under Section 110-D of the Motor Vehicles Act, 1939 by the appellant who is admittedly the owner of the offending bus being No. WBY 1226. The appeal arises out of an award given by the learned Additional District Judge 13th Court, Alipore who discharged the function as Accidents Claims Tribunal for Calcutta and 24 Parganas at Alipore dated 11th November, 1987 passed in M.A.C.C. No. 421 of 1978.
2. The relevant facts of this case are that on 31st July, 1978 at about 6.30 in the morning an accident took place in which the husband of the claimant-respondent was run over by the offending vehicle being No. WBY 1226. The facts that the accident took place and because of the accident the victim died are not in dispute. On behalf of the claimants eight witnesses were examined before the Motor Accidents Claims Tribunal and PW 5, Subhassis Roy, was the only eyewitness in respect of the accident that took place in which the victim died. PW 5 stated that on 31st July, 1978 he saw a motor accident on V.I.P. Road at about 6.30 a.m. when a school bus bearing No. WBY 1226 while making attempt to overtake a taxi from wrong side, i.e., left side dashed against the victim who was on the left side of the road adjacent to pucca rastha. The said witness also said that he had seen the said school bus carrying the school children from the vicinity. He knew the victim and he stated that after seeing the accident he went to the house of the victim to give information to the family and thereafter came back to the spot where he found that the victim was lying dead. The police was informed. After some investigation a case was started by the police. In the written statement filed on behalf of the appellant the only stand that was taken was that the driver of the offending vehicle had no occasion to drive the vehicle at the relevant time since the vehicle was in garage and as such the question of rash and negligent driving on the part of the driver did not arise.
3. On behalf of the appellant three witnesses were examined including the driver of the vehicle in question. Mahadev Biswas, witness No. 3 for the appellant, stated in his deposition that his duty hours were from 6.45 a.m. so he went to garage to take out the bus at the time. It was further stated by him that he used to take out the vehicle from garage and then go towards South Calcutta, viz., Park Circus, Fern Road, Ballygunge Place and then come with girl students to Calcutta Girls School, Wellington Square. He stated that he never went to the area in question with the students. During cross-examination the driver of the bus could not say the premises number or holding number from where he used to take students for that school. A letter was produced from the Principal of the Calcutta Girls School dated 30th January, 1981 in which it was certified that the vehicle in question belonging to the appellant's garage was carrying the school children from South Calcutta to the said school from 1978. The said school begins at 8 a.m. and closes at 2 p.m. The learned Judge of the Claims Tribunal after considering the evidence, both oral and documentary, came to the conclusion that the garage register was not produced before the court with the result that the preliminary documentary evidence as to the movement of the vehicle on 31st July, 1978 on which date the accident took place was not there. The certificate granted by the school authority could be of little help to decide the issue and ultimately the Claims Tribunal found that the rash and negligent driving on the part of the said bus driver was self-evident inasmuch as it came upon the footpath portion of the road meant for the pedestrians while overtaking another vehicle from its left side which itself is a wrongful act and the negligence on the part of the driver being self-evident, the driver was entirely responsible for the said accident in which the victim was run over and killed.
4. After deciding 'that the said accident took place because of the rash and negligent driving on the part of the driver of the said bus No. WBY 1226 the Tribunal awarded a compensation for a sum of Rs. 73,500/-against the appellant out of which a sum of Rs. 50,000/- was directed to be paid by the insurance company which is one of the respondents in this appeal who had not preferred any appeal against the judgment and award of the said Tribunal. The learned Judge while calculating the quantum of compensation took the salary of the victim on the basis of the records and documents produced before the court at the rate of Rs. 1902.40 per month and having regard to the size of the family of the deceased, namely, his wife and two sons and the expected life of the victim which was taken to be another seven years, assessed compensation at Rs. 98,000/- out of which 25 per cent was deducted towards lump sum payment and the net compensation was determined as Rs. 73,500/-.
5. Mr. Basu, learned advocate appearing on behalf of the appellant, contended that there was no evidence on record to hold that the accident took place by the offending vehicle and that too by rash and negligent driving by the driver of the bus. It was further submitted that the Tribunal was wrong in relying upon the deposition given by PW 5 who was the only eye-witness and the deposition of the widow of the victim, PW 3. The contradiction was not with regard to the accident. PW 5 saw the accident with his own eyes and told the court the number of the vehicle and that the same was a school bus and it is not in dispute that the said bus was a school bus. The only contradiction is about the time when PW 5 gave information to the widow of the victim after the accident took place. There was no contradiction or inconsistency with regard to the facts relating to the accident. But there was some contradiction with regard to the time when PW 3, widow, received information regarding the death. It was further submitted by Mr. K. Basu that the Tribunal was wrong in relying upon the deposition of PW 3 because of this contradiction between the deposition of PW 5 and the deposition of PW 3. It is admitted that PW 3, the widow, was not on the spot and she was not an eye-witness in so far as the accident is concerned.
The learned Judge ignored this contradiction about the time when the widow got the information and whether from PW 5 or from the son of PW 3. It was further submitted that the Tribunal should have considered the police report and the statement recorded by the police in course of the criminal case started in respect of the said accident and in not doing so the Tribunal was wrong in fixing such liability inasmuch as the police investigation report and information obtained by the police were relevant materials for the purpose of deciding such a case.
6. Mr. Das, learned advocate appearing on behalf of the respondents, submitted that it was not necessary on the part of the Claims Tribunal to rely upon the evidence recorded by the police in connection with the criminal case and in support of his contention relied upon the decision of the Madhya Pradesh High Court in the case of Shabbir Ahmed v. M.P.S.R.T.C. 1984 ACJ 525 (MP), wherein it was held that the evidence in criminal case cannot be used as a basis for discarding the testimony of a witness recorded before the Tribunal itself. Mr. Das further relied upon the provision of Section 110-C of the Motor Vehicles Act, 1939 which provides that in holding any inquiry under Section 110-B of the said Act the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary precedure as it thinks fit and accordingly it was submitted that it was not necessary on the part of the Tribunal to follow the procedure and principle followed in a regular trial by the civil court.
7. After giving our anxious consideration to the respective submissions and after going through the records in our view the Tribunal took a correct view of the matter inasmuch as in the instant case the 'claimant alleged that the accident took place because of the rash and negligent driving on the part of the driver of the bus concerned and in the written statement a clear stand was taken by the appellant before the Tribunal that at the relevant time the bus was not on the road but it was inside the garage and as such there was no question of the said bus being involved in the accident. Consequently stand was taken by the appellant before the Tribunal that there was no scope on the part of the vehicle to travel on that part of the V.I.P. Road where the accident took place inasmuch as the bus was engaged for the purpose of lifting girls from South Calcutta for reaching them to the school situated at Central Calcutta. When an alibi was taken before the Tribunal by the appellant she failed to establish the stand taken by her. Law is now well settled that certain facts which are not relevant become relevant under certain circumstances. When the appellant has taken an alibi it was for her to prove and failure to prove the alibi does not improve the case of the appellant. The fact which was otherwise irrelevant becomes relevant in the instant case inasmuch as when a stand was taken and if that stand could be proved in that event the accident could not have been caused by the bus concerned. But when she utterly failed to prove so that shows that this fact becomes relevant and such stand was purposefully taken and could not be proved. Thus there was some light on the case and it has some adverse effect. In the instant case PW 5 who was the eye-witness clearly stated the facts before the Claims Tribunal and he was thoroughly cross-examined but there was no contradiction with regard to the fact of causing accident by the offending bus and by which the victim died on the wrong side of the road. At what point of time the PW 5 went to the widow, PW 3, after the accident took place in our view was not a fact which is relevant and germane to prove or disprove the accident which took place at earlier point of time. The court is concerned with regard to the deposition of the eye-witness in so far as the accident is concerned and he is the only witness who saw the accident. It must be remembered that accident does not take place giving notice to everybody. This accident has taken place at early hour of the day when there were very few people on the road. In such circumstances considering the deposition of PW 5 and the alibi taken by the appellant in our view the Tribunal has come to a correct conclusion with regard to the liability of the appellant for the said accident in question.
8. After the accident a police case was started and in this connection reference was made to a decision of the Himachal Pradesh High Court in the case of Brestu Ram v. Anant Ram 1990 ACJ 333 (HP), wherein it was held that no adverse inference could be drawn when the accident was not reported to the police. The scope of awarding compensation under the Motor Vehicles Act and the scope of the criminal case are different. There may be cases where the criminal case is not proceeded with or fails for want of witnesses because of the fact that the claimant may choose not to put the driver of the vehicle behind the bars but they are simply interested in getting compensation for the loss of life caused by the accident.
9. In our view it was not necessary on the part of the Claims Tribunal to take into consideration the police report and the deposition recorded by the police. The accused may be discharged or acquitted in a criminal case but that does not show that the accident did not take place or that cannot have any repercussion on the finding of the Claims Tribunal on the basis of the evidence and documents on record. The standard of proof in a criminal court and civil court is not the same. In the instant case the appellant failed to prove the fact that the said bus did not travel the area where the accident took place as per the stand taken.
10. Considering the facts and circumstances of the case we are of the view that the Tribunal was right in holding that the said accident took place by bus No. WBY 1226 due to rash and negligent driving by the driver of the bus. With regard to the amount of compensation we are of the view that the Tribunal has applied a correct principle and in our view the amount which was determined was on the lower side. Mr. Das lastly contended that even if the Tribunal has not awarded any interest the claimants are entitled to interest in view of the decision of the Supreme Court in the case of Jagbir Singh v. General Manager, Punjab Roadways 1987 ACJ 15 (SC), wherein the Supreme Court held that interest at the rate of 12 per cent per annum should be paid on the compensation amount from the date of making the application for compensation. We do not find any reason to interfere with the decision of the Claims Tribunal in respect of the said accident.
11. Accordingly, the appeal is dismissed with the modification that the claimants-respondents should get interest at the rate of 12 per cent per annum on the amount of compensation from the date of the payment (Sic. application).
12. There will be no order as to costs in this appeal.