Lokeshwar Singh Panta, J.
1. The above appeals and counter appeals have been taken up together as they arise out of a single accident between the same parties and involve common questions of fact and law. The learned Counsel on either side have made their common factual and legal submissions. FAO (MVA) No. 105/92 and FAO (MVA) No. 106/92 have been filed by the Himachal Road Transport Corporation against the judgments and awards of Motor Accident Claims Tribunal (II), Una whereunder the appellant-Corporation has been held liable to pay the amount of compensation awarded in favour of the claimants of the deceased and injured in the accident. FAO (MVA) No. 124/92 and FAO (MVA) No. 130/92 have been filed by the claimants of the deceased and by the injured against the said awards to the extent of holding the deceased contributory negligent to the extent of 50% and also seeking enhancement of the amount of compensation.
2. The facts giving rise to these appeals may briefly be stated as under:
One Chain Singh was driving scooter No. PBO-7664 on 19.4.1989 on UnaJaijo road and was to cross Pabowal Nainwa road. Two pillion riders namely Surjit Singh and Vikram Singh were also sitting on the scooter of Chain Singh. Bus No. HPG-1926 belonging to Himachal Road Transport Corporation and being driven by its driver Gurdial Singh was going from Pabowal side towards Nainwa. Both the vehicles had a collision at Pabowal junction in which Chain Singh and one pillion rider Surjit Singh suffered injuries and later on Chain Singh died as a result of the injuries suffered in the accident after reaching in the hospital. The scooter which was being driven by Chain Singh was stated to be owned by one Vinod Kumar who said to have sold it to Ram Lubhaya.
3. Smt. Sarla Devi is the widow of Chain Singh; Narinder Singh, Jagbinder Singh and Om Prakash are his minor sons and whereas Smt. Satya Devi is the mother of the deceased who had filed claim petition before the Tribunal below alleging that the accident occurred due to the rash and negligent driving of the bus by the driver who did not blow any horn on the curve and therefore, struck the bus against the scooter. The claimants had claimed an amount of Rs. 3,00,000/- as compensation on the grounds that the deceased was 42 years of age at the time of accident and was earning Rs. 5,000/- per month by engaging himself as a driver of three wheeler scooter at Ludhiana and was earning from his agricultural land. The claimants also stated that the deceased before his death was contributing a sum of Rs. 2,500/- per month to them. Injured Surjit Singh also filed claim petition on the same grounds and claimed a sum of Rs. 3,00,000/- for the injuries sustained by him in the accident. In their claim petition the claimants had impleaded Himachal Road Transport Corporation, its driver Gurdial Singh, Ram Lubhaya, Vinod Kumar and Insurance Company (The name and address not given as party respondents).
4. The claim petitions were resisted and contested by the H.R.T.C. and its driver in their written statement. The said respondents denied that the bus was being driven rashly and negligently by respondent-driver and pleaded that the bus was standing when the scooter struck it. It was inter alia pleaded by the respondents that Chain Singh deceased was driving the scooter with two pillion riders rashly and negligently and dashed the scooter against the standing bus, as he could not control the scooter. Permanent disability to injured Surjit Singh, loss of income and medical expenses etc. have been disputed. The respondent driver of the bus also pleaded that at the time of the accident scooterist was under the influence of liquor. Ram Lubhaya respondent in his statement averred that he was not a driver or registered owner of the scooter and he was, therefore, not liable to pay any amount. He alleged that the accident took place due to rash and negligent driving of the bus by its driver. Other averments of the claim petitions were denied by him for want of knowledge.
5. Vinod Kumar respondent in his written statement stated that he had sold the scooter in question to respondent Ram Lubhaya and had parted with the possession of the scooter and its insurance papers on 28th July, 1988 to the transferee after accepting the full consideration and thereafter, he had no connection with the scooter in question. On these averments he too denied his liability to pay any compensation to the claimants.
6. On the controversial pleadings of the parties, the Tribunal below framed for decision the following issues:
1. Whether the accident is the result of rash/negligent driving on the part of respondent No. 2, as alleged? OPP
2. Whether deceased Chain Singh, who was driving the scooter acted rashly/negligently at the time of accident, as alleged? OPR 1 and 2
3. Whether deceased Chain Singh died in the course of the accident with bus No. HPG-1926, as alleged? QPP
4. Who was the owner of the scooter at the time of the accident? OPR 3 and 5
5. To what amount of compensation, the petitioners are entitled and from whom? OPP
6. Relief.
In the claim petition of injured Surjit Singh Issues No. 3 and 5 were settled as under:
(3) Whether the petitioner sustained injuries in the course of accident with bus HPG-1926 and suffered permanent disability to the extent of 60% as alleged? OPP
(5) To what amount of compensation, the petitioner is entitled and from
whom? OPP
7. The other issues noticed in the claim petition of claimants-the legal representatives of Chain Singh were identical.
8. The parties went to trial and led their evidence.
9. The Judge of the Tribunal on appraisal of the entire evidence on record recorded findings against issues No. 1 and 2 partly against the driver of the bus and partly against deceased holding Gurdial Singh the driver of the bus and Chain Singh deceased driving their respective vehicles rashly and negligently at the time of the accident. Against issue No. 4 the Tribunal concluded that the question of ownership of scooter became irrelevant in the circumstances of the case. Consequently, dependents of Chain Singh were awarded a sum of Rs. 1,37,400/- as compensation and injured Surjit Singh was awarded Rs. 51,000/- and liability to pay the amount of compensation to the claimants and the injured Surjit Singh was fastened upon the Himachal Road Transport Corporation and its driver jointly and severally to the extent of 50% alongwith interest at the rate of 12% per annum from the date of institution of the claim petition till the date of payment or deposit. Himachal Road Transport Corporation, claimants and the injured have filed separate appeals challenging the correctness, validity and legality of the judgments and the award of the Tribunal below to the extent to which findings were recorded against them and also for enhancement of the compensation.
10. We have heard Mr. M.V. Sharma, learned Counsel for H.R.T.C., Mr. H.K. Bhardwaj, learned Counsel for the claimants and injured, Mr. J.L. Bhardwaj, learned Counsel for respondent Vinod Kumar and Mr. Debinder Ghosh, learned Counsel for respondent No. 2-driver Gurdial Singh. None appeared for respondent Ram Lubhaya despite service.
11. Mr. M.V. Sharma, learned Counsel for the H.R.T.C. has vehemently contended that the learned Judge of the Tribunal has miserably failed to appreciate the evidence on record and has given undue weightage to the statement of Baldev Singh (P.W. 2) an alleged eye-witness who from the entire reading of the evidence cannot be found to be present oh the scene of the accident and that simply because the driver of the H.R.T.C. was driving heavy vehicle, the liability has been fixed upon the appellant-Corporation and its driver whereas from the reassessment and reappreciation of the evidence it is clear that it was deceased who was negligent in driving the scooter under the influence of liquor and carrying two more pillion riders against the provisions of the Motor Vehicles Act. He next contended that once it is established that Chain Singh was himself negligent in driving the scooter resulting the accident, his dependents were not entitled to the claim of compensation from the appellant-Corporation and its driver. He also contended that the owner of the scooter could not escape his liability and that the Insurance Company with whom the scooter was insured was not named and particulars of the Insurance Company were also not given by the claimants or the injured nor by the owner of the scooter and liability was wrongly thrown on the appellant Corporation and its driver without any fault, and awards have to be seta side.
12. Per contra Mr. H.K. Bhardwaj, learned Counsel for the claimants and injured has sought to support the findings of the Tribunal below to the extent holding the appellant-Corporation and its driver liable to pay the amount of compensation for the cause of the accident and contended that holding the deceased rash and negligent in driving the scooter to the extent of 50% was not sustainable on reappraisal of the entire evidence on record and according to the learned Counsel it was appellant-Corporation and its driver who sought to have been held liable to pay the entire amount of compensation as the accident took place due to rash and negligent driving of the bus by its driver. He next contended that the income of Rs. 70%- per month of the deceased before his accident determined by the Tribunal below is on the lower side and it ought to have been awarded at Rs. 2,500/- per month. The learned Counsel has justified the multiplier of 16 used by the Tribunal below.
13. Mr. J.L. Bhardwaj, learned Counsel for respondent Ram Lubhaya has sought to support the findings and conclusions of the Tribunal below. Mr. Debinder Ghosh, learned Counsel for respondent-driver of appellant-Corporation contended that no reliance could be placed upon the evidence of PW Baldev Singh who has not given true version of the accident and who was not present at the scene of the accident and he was a procured witness belonging to the village of the claimants.
14. To appreciate the rival contentions of the learned Counsel on both sides we propose to make reappraisal of the entire evidence on record in order to find out whether the reasonings and conclusions arrived at by the Tribunal below are sustainable based upon the sound appreciation of the evidence or not.
15. Smt. Sarla Devi wife of the deceased appeared as P.W. 1 and her evidence is of no relevance to establish the question of negligence on the part of the driver of the appellant-Corporation. The alleged eye-witness Baldev (P.W. 2) in his deposition has stated that he knew deceased Chain Singh who hailed from his village. He stated that Chain Singh was involved in the accident occurred on 19.4.1989 at 11 a.m. when he was present at Pabowal Bus-stand. He also stated that Chain Singh was driving a scooter when he was going to Una side and the accident occurred with H.R.T.C. bus which was coming from Pabowal and going towards Sahuwal. He deposed that Surjit Singh and Vikram Singh were the pillion riders of the scooter with Chain Singh and the bus-driver was driving the bus at a high speed without blowing the horn which struck against the scooter of Chain Singh and resulting his death and also causing injury to Surjit Singh. It has come in his cross-examination that at the place of the accident it was a crossing junction bifurcating the roads to four destinations. According to him the accident took place at the middle of the crossing junction. He further stated that from the junction one road leads to Palakwah and on the other side the said road leads to Polima. The second road leads from Pubowal to Hiro side which is towards north-south side. He stated that the scooter struck the front side of the bus from its left side. After the accident he left the place and went to do his own work. It has further come in his cross-examination that the scooter was going on Una-Jainjo main road and the bus was coming from Pubowal and going towards Hiro side and that the bus stand is located after crossing Una-Jainjo road.
16. If we minutely and exhaustively examine the evidence of this witness, we find that the witness is not a truthful witness and his presence at the place of the accident is doubtful. In his examination-in-chief the witness has categorically stated that at the place of the accident there was a U-turn. Admittedly, no site-plan has been placed on record by the claimants about the actual place of the accident despite the fact that the report of the accident was also lodged with the police who filed challan against the respondent-driver of the bus and who was later on acquitted by the Criminal Court.
17. From the reading of the statement of this witness the scooter was on Una-Jainjo road and the bus was coming from another road which is on the left side of the main road and was going straight to the bus-stop which is located in the same direction after crossing the junction. If the bus was being driven at a high speed and in a rash and negligent-manner by its driver and had it struck with the scooter, in all probability the scooter and its riders would have been thrown on the right side of the scooter and there was no scope to the 3rd pillion rider Mr. Vikram Singh to escape unhurt.
18. From the evidence on record as deposed by P.W. 2 Baldev and injured Surjit, it is clear that left front portion of the scooter struck with the left bumper of the bus. The Tribunal below has noticed that the version of injured Surjit Singh that Chain Singh had brought the scooter to a halt and the bus had dashed against the stationary scooter appeared to be calculatedly false and this part of the statement was not believed for the reason that P.W. 2 Baldev Singh has not stated that the scooter was standing when the bus struck with it. From the evidence of these two witnesses it is clear that the scooter fell on its left side and Chain Singh received injuries on his head whereas injured Surjit Singh also received injuries on his left arm and left leg. The testimony of P.W. Baldev is unbelievable on the ground that being co-villager of the deceased he had not cared to accompany him to the hospital who was in an injured condition and as per his version he left the scene of the occurrence and had gone to do his own work. It has also come in his evidence that he was present at the bus stand whereas the accident had taken place at crossing junction which is located before the bus stand. It has also come in his evidence that there were other persons present at the scene of occurrence. None of them has been examined by the claimants to substantiate their version that it was respondent-driver of the bus who was rash and negligent in driving the vehicle. The claimants have also not examined Vikram Singh who was also occupying the pillion seat to disclose the true versions about the cause of the accident.
19. The driver Gurdial Singh appeared as R.W. 2 and deposed that on 19.4.1989 he was driving bus No. HPG-1926 and was going from Pubowal to Nainwa and at about 12 noon the bus reached at Pubowal Chowk. He stopped the bus about 5-6 ft. before reaching the crossing junction for alighting passengers. In the meantime, from village Pollian a scooter came on which three persons were sitting and dashed with his stationary bus on its left side. All the three persons fell down and sustained injuries who were taken to Haroli hospital by him in the same bus. He also stated that all the three persons who were riding the scooter had not put helmet on their heads. He also stated that the person who was driving the scooter was drunk and struck his scooter against his bus because of his rashness and negligence. He categorically denied the suggestion of the claimants that he was turning his vehicle without blowing the horn at the time of the accident and denied that his bus struck against the scooter. He has categorically stated that it was the scooterist who struck his scooter with the bus. However, he admitted that Polian-Haroli road crosses Pubowal-Nainwa road. He denied the suggestion of the claimants that bus stand of Pubowal-Nainwa is located after the crossing at Polian-Haroli road. He specifically stated that there is no bus stand on these roads and some drivers stop their buses before crossing the junction and some after crossing it. He also stopped his bus on the road side before crossing the junction. He also denied the suggestion that there is a curve at the crossing junction. The testimony of respondent-driver of the bus appears to be more plausible and trustworthy than the evidence led by the claimants. Had the driver been negligent in driving his vehicle and causing the accident, he would have never dared to stop his bus and lift the injured to hospital for medical treatment. The defence of the driver appears to be correct that Chain Singh was driving the scooter under the influence of liquor and carrying two more persons on it when his scooter struck with the bus. He has filed on record medico-legal certificates (Ext. R-5) of Vikram Singh and injured Surjit Singh (Ext. R-6) besides post mortem report of deceased Chain Singh (Ext. R-7) alongwith copy of the judgment of the trial Magistrate in the criminal case. In Ext. R-5 in respect of Vikram Singh the Doctor has noticed that alcoholic smell was coming from the mouth of the patient. Similar report has been given in respect of the injured Surjit Singh. On the port mortem report (Ext. R-7) the Doctor stated that smell was coming from the gestric contents. In the opinion of the Doctor, the deceased died due to head injury and excessive bleeding and we find that the words 'the patient had consumed alcohol before death' had been struck off.
20. From the entire reading of evidence on record it can be safely concluded that all the persons occupying the scooter have consumed liquor and in a drunkard condition Chain Singh was driving the scooter which he could not controls the place of the accident when the bus was proceeding towards the crossing junction and it appears that in nervousness Chain Singh struck his left portion of the scooter with the left side of the bumper of the bus resulting the accident and thereafter, the scooter fell on the left side along with the occupants and they had sustained injuries.
21. No doubt, as a prudent man the driver of the bus ought to have shown more care to drive a heavy vehicle on the road, nonetheless it was the duty of Chain Singh also not to have driven the scooter under the influence of liquor carrying two more persons as pillion riders. From the evidence we are of the view that it was the deceased who was entirely negligent in driving the vehicle, the driver of the appellant-Corporation in the facts and circumstances cannot be held liable for the cause of the accident and driving his vehicle in a rash and negligent manner. The findings of the Tribunal below holding the appellant-Corporation, its respondent-driver rash and negligent in driving the vehicle to the extent of 50% cannot sustain on sound reappraisal of the entire evidence on record and the same are hereby set aside.
22. The Tribunal below has taken into consideration the entire evidence on record about the income of the deceased and determined the monthly income of Rs. 1,000/- as the dependents of the deceased could not lead cogent and convincing evidence that before death Chain Singh was employed at Ludhiana driving three wheeler scooter and earning Rs. 3,000/- or 4,000/- per month. Similarly, the dependents could not establish that the deceased before his death was contributing a sum of Rs. 2,500/- to the family. The Tribunal has rightly held that out of monthly income of Rs. 1,000/- which was assessed as global income, the dependency to the estate worked out to Rs. 700/- per month or Rs. 8,400/- per annum. The age of the deceased at the time of the death was 42 years and the multiplier of 16 by the Tribunal below appears to be on the higher side which in our view should be 14 as by now it is settled by the Apex Court that the maximum multiplier should be used only 18. Thus, after analysing the entire evidence on record we hold that the claimants are entitled to total amount of Rs. 1,17,600/- as compensation and in addition a sum of Rs. 3,000/- as-conventional damages is also payable to the claimants, thus, the total amount of compensation to which the claimants are held entitled works out to Rs. 1,20,600/-. The deceased was found negligent in driving the vehicle, the claimants are held entitled to 50% amount of compensation which works out to Rs. 60,300/-. Respondents Ram Lubhaya and Vinod Kumar have not stepped into the witness box nor they prosecuted the claim petitions after filing their written statements. Respondent Vinod Kumar has stated in his written statement that he had sold the scooter and handed over the possession and its papers to respondent Ram Lubhaya on 27.8.1987 and thereafter he had no concern with the scooter. Ram Lubhaya in his written statement has not specifically denied the sale of scooter in his favour or its possession being handed over to him by respondent Vinod Kumar nor he appeared before the Tribunal to deny these facts. It is also not disputed on behalf of respondent Ram Lubhaya that after the accident he had filed application Ext. R-1 in the Court of Chief Judicial Magistrate, Una for seeking the release of the scooter involved in the accident in his favour on the averments that the scooter was owned by him. Ram Lubhaya had executed superdari bond (Ext. R-2) in the Court of Chief Judicial Magistrate Una for seeking release of scooter in his favour and this fact was also not denied by him. In the teeth of these admitted facts that the sale of the scooter in favour of Ram Lubhaya was complete and it was he who was owner of the scooter in question at the time of the accident. Thus, respondent Ram Lubhaya, the owner of the scooter involved in the accident is directed to pay the amount of compensation of Rs. 60,300/- alohgwith interest @ 12% per annum from the date of institution of claim petition till the date of payment or deposit to the claimants. The amount of compensation awarded by us shall be apportioned by the claimants as follows:
1. Smt. Sarla Devi, Widow of deceased. = Rs. 20,000/-2. Master Narinder Singh, son. = Rs. 12,000/-3. Master Jagbinder Singh, son. = Rs.. 12,000/-4. Master Om Prakash, son. = Rs. 12,000/-5. Smt. Satya Devi, mother of deceased. = Rs. 4,300/-________________Total: Rs. 60,300/-_________________
23. Claimant Surjit Singh has been awarded total amount of compensation of Rs. 51,000/- by the Tribunal below under various heads and the liability of appellant-Corporation and its respondent-driver to the extent of 50% shall stand exonerated for the reasons already stated in the earlier part of the judgment. Claimant Surjit Singh is said to have suffered a fracture of left leg and left aim in the accident. According to the opinion of the Doctor S.K. Nadda, the claimant had suffered with 60%) disability. The claimant remained admitted in the District Hospital, Una for more than one month. The Tribunal has rightly awarded a sum of Rs. 10,000/- as compensation for pains, shock, sufferings and loss of amenities in life of the claimants whose age was 35 years at the time of the accident. The claimant could not lead satisfactory evidence for claiming a sum of Rs. 10,000/-spent by him on purchasing medicines etc. After considering all the factors a sum of Rs. 5,000/- has been awarded by the Tribunal below Under the head of cost of medical treatment which in our view is just and reasonable. The claimant pleaded that before the accident he used to cultivate his land and was, therefore, making. earnings of Rs. 2,000/- per month and after the accident he is not capable of making any earnings and the Tribunal accepted the claimant's earning capacity to the extent of Rs. 1,000/- per month and assessed the disability to the extent of Rs. 200/ - per month or Rs. 2,400/- per annum. The Tribunal below applied multiplier of 15 and awarded total loss of earnings suffered by the claimants to the extent of Rs. 36,000/-. Thus, the total amount of compensation awarded by the Tribunal works out to Rs. 51,000/- to claimant Surjit Singh for 60% disability.
24. On analysing the entire evidence on record and the reasonings given by the Tribunal below in the impugned award, we are of the considered view that the amount of compensation awarded by the Tribunal below is just, reasonable and equitable and it needs no enhancement. The claimant is entitled to Rs. 25,500/- alongwith interest @ 12% per annum from the date of institution of the claim petition till date of payment or deposit and respondent Ram Lubhaya owner of the scooter involved in the accident shall compensate the claimant as he was the owner of the scooter involved in the accident for which deceased Chain Singh was held rash and negligent.
25. The appellant-Corporation and respondent-driver Gurdial Singh are held liable to pay fixed sum of Rs. 15,000/- to the dependents of Chain Singh in FAO (MVA) No. 105/92 under no fault liability which shall be deducted from the total amount of compensation awarded to them and the balance amount of compensation shall be paid by respondent Ram Lubhaya to the claimants. Similarly, claimant Surjit Singh is entitled to fixed sum of Rs. 7,500/- under no fault liability from appellant-Corporation and its respondent-driver and the balance amount of compensation in his case also shall be paid by respondent Ram Lubhaya owner of the scooter involved in the accident.
26. In the result, for the above stated reasons and discussion, the appeals of the appellant-Corporation are allowed in part and the awards of the Tribunal below shall stand modified to the extent indicated above.
The appeals of the claimants and injured are dismissed accordingly.
The parties are left to bear their own costs.