Mangal Deo and ors. Vs. Bheru Singh and ors. - Court Judgment

Panna Chand Jain, J.

1. This appeal is directed against the judgment and award dated March 11, 1982, passed by the Accident Claims Tribunal, Jodhpur, in Claim case No. 129/78, by which the claim petition of the petitioner-appellant was dismissed.

2. Briefly stated, the facts of the case are that deceased Arun Deo was coming from Luni to Jodhpur in a three wheeler No. RRQ 489, which was being driven by the driver Daulat Singh. Deceased was with Jagdish and Omnath in the three-wheeler. This three-wheeler was crushed in an accident by the truck No. RJQ 1051, which was loaded with stone patties and was proceeding from Jodhpur towards Pali on the Pali road. The accident had taken place at 6 km. towards Pali side from Jodhpur, It is alleged in the petition that the truck was going with a very high speed and was being driven by driver rashly and negligently. It has also been alleged that the truck was on wrong side, while the three-wheeler was runtng on the left side, i.e., on the correct side. Deceased, Arun D30, was sitting on the back seat of right side of three-wheeler. On account of the collusion between the truck and the three-wheeler, Arun Deo died on the spot. The truck ran away speedily. It is alleged in the petition that the owner of the truck was Abdul Aziz, who was the registered owner also. It has also been contended that this truck was sold to one Shri Achluratn Mali. The driver, the registered owner and the purchaser of the truck were impleaded as parties to the claims petition. For claiming damages, the petitioners, i.e., the parents of the deceased stated that the income of deceased was Rs. 400/- per month. It was also contended that he was a young man and on the date of accident, i.e., March 22, 1978, he was of 21 years. The petitioners have claimed a sum of Rs. 2,50,000/-. non-petitioners No. 2 and 3, i.e., Abdul Aziz and Achlu Ram filed common written-statements. They denied that any accident was caused by truck No. RJQ 1051 on March 22, 1978 at about 9.30 p.m., as alleged by the petitioners. The case against the driver proceeded ex-parte. Insurer of the truck was the New India Insurance Company Limited. The insurer also contested the case and denied its liability, The learned Claims Tribunal framed the various issues and after considering the evidence of all parties in the case, dismissed the petition. The petitioner has examided himself as PW 1 and has also examined Daulat Singh PW 2, Omnath PW3, Jagdish PW 4, Gulab Khan PW 5, Sushant Kumar PW 6, Dr. B.K., Chaudhary PW 7, Ramchandra PW 8 and Santok PW 9. In rebuttal, the opposite party has examined S.C. Bhandari OPW 1 and Abdul Aziz OPW 2. Some documentary evidence has also been filed. The relevant documents in this appeal are Ex. 20 and Ex. B-2. Other documents are with respect to the qualifications of the deceased. There are certain photographs of the damaged scooter. Learned counsel for the petitioner-appellant has assailed the finding of the learned Claims Tribunal on issue No. 1 and has submitted that the finding is not based on correct appreciation of evidence on record. He has submitted that the finding of the Claims Tribunal that truck No. RJQ 1051 was not involved in the accident is not correct. In order to substantiate his contentions, he has pointed out the following circumstances to prove that in fact truck No. RJQ 1051 was responsible for causing accident.

(1) That on March 22, 1978, the truck was weighed at 9.30 p.m. at Naka, which fact was proved by the testimony of Sushant Kumar PW 6.

(2) That just after the accident, a truck of make Ford was seen at a distance of 7 and 8 miles from Jodhpur by Gulab Khan PW 5, when he was coming in his own truck from Pali to Jodhpur. He had seen a black cloth hanging on the right side of the truck, which was coming towards Pali side. Truck No. RJQ 1051 is a Ford make.

(3) That there is testimony of PW 9 Santosh, who proves his affidavit (Ex. 20). Ex. 20 bears the testimony to the fact that this truck was directed to go to Pali on March 22, 1978, in which stones were being carried.

3. The testimony of Mangal Dev PW 1, who is the father of the deceased PW 3 Om Nath, who was a passenger with the deceased in the three-wheeler and Ram Chandra PW 8, Station House Officer, if correctly analysed, it will lead to only one conclusion that accident was caused by truck No. RJQ 1051.

4. Driver, Bheru Singh, is absconding and his whereabouts are not known.

5. Abdul Aziz and Achlu Ram have not given any satisfactory explanation as to where the truck was unloaded after the alleged accident.

5. A case under Section 304A has been registered against the driver, Bheru Singh, for committing an offence under Section 304A, IPC.

7. It is suggested that Khalasi was there on the truck, but he has not been produced. Mr. J.M. Bhandari, learned counsel for the respondents No. 2 and 3, submitted that there is no evidence worth the name on the record to connect the truck No. RJQ 1051 with the accident. Mr. B.L. Maheshwari supported Mr. Bhandari in his contention. In addition to that, he very strongly supported Mr. Bhandari and submitted that accident has not been proved in this case and as such no liability can be fastened on the Insurance Company The testimony of PW 3 Omnath is not believable. If the case of the petitioner be believed then the truck was being driven at a high speed. He has also submitted that the learned Claims Tribunal was right in disblieving the testimony of the claimants witnesses as in the investigation with regard to criminal case statements of the witnesses were recorded under Section 161 Cr. PC and in their statements, the witnesses have not stated the number of the truck. He has further pointed-out that FIR was lodged by Omnath PW 3 which gives the time of the accident at 6 p.m. on March 22, 1978. He thus, wants to draw the inference that the accident might have taken place, but the accident was not caused by truck No. RJQ 1051. The learned counsel for the petitioner-appellants has also cited some authorities to substantiate his contention that police statements under Section 161, Cr.PC, should not be allowed to be used in proceedings under Section 110-A of the Motor Vehicles Act. He has referred to Gajendra Singh v. State of Utter Pradesh : 1975CriLJ1494 . That case does not support him as in that case, it was pointed out that statements under Section 161 of the Code of Criminal Procedure cannot be used during investigation of cross-case. Statement under Section 161 Cr.PC is like any other statement of a party and may be used for purposes of contradiction and corroboration. There seems to be no bar in making their use in civil proceeding. In this particular case, the question as to whether the contradiction made by the witnesses by the use of statement under Section 161, Cr.PC, be relied upon or not The contradiction if satisfactory explained, in my opinion, is liable to be ignored. The only witness, who has been contradicted with his statement under Section 161, Cr.PC, is Omnath. Omnath was travelling in the three-wheeler. He had an opportunity to see the number of the truck. It is in the normal way that if the accident is caused immediately, brake is applied by the driver and thus, the speed of the truck is slowed down. Speed of the truck is also slowed down because of the impact between two vehicles coming from opposits directions. Thus, the contention of Mr. Bhandari that the vehicle was proceeding with a high speed and as each, there was no chance for Omnath to have noted down the number, does not stand in the way Statement of Omnath appears to be quite cogent, straight-forward and is believable. He has categorically stated that he had noted down the number of the truck, which was RJQ 1051. He has given the sequence of the accident in up-right manner He is the person on whose statement FIR was lodged. The time seems to have been inserted after Omnath has signed his statement, as would be evident from the court question that was put to PW 8 Ramchandra.

8. An appreciation of the evidence of PW 1 Mangaldev; revealed that Omnath disclosed the number of the truck RJQ 1051 to him on the next date of the accident, which has been clearly corroborated by Omnath also. The statement of PW 8 also goes to prove that in the accident, truck No. RJQ 1051 was involved. He is not an eyewitness, but in the investigation, he could discover this fact. This truck was seized on 15th of May, 1978. Respondents have not been able to prove their defence that truck No. RJQ 1051 could not be the truck, which caused the accident. They have not been able to produce any evidence as to where the truck had gone in the night of March 22, 1978 or thereafter. It is case of the defence that it went to Balotra for unloading the goods' but no person from Balotra has been produced. The statements of Abdul Aziz cannot be relied upon as he has not produced any documentary evidence. It is a well known principle that a material evidence should be examined and non-examination of the material evidence to prove the defence version is a circumstance to discredit the defence version. Thus, in the totality of the circumstances, the only conclusion that can reasonably be derived from fair appreciation of evidence is that the accident was caused by truck No. RJQ 1051, which was being driven by the driver. There is no evidence that this vehicle was transferred to Achluram, even otherwise also Abdul Aziz is a registered owner. The statement of Omnath P.W. 3 is clear on the point that the truck was rashly and negligently driven by Bheru Singh, as it was coming with a high speed and was on wrong side. A perusal of the photos of the damaged three-wheeler also leads to the conclusion on the principle of 'res ipsa loquitor' that the damage must have been caused by some wrong, which could be the result of either negligence or rashness on the part of the person causing the accident. I therefore, hold that issue No. 1 should have been decided in favour of the petitioner. Consequently, I also hold that the respondents are responsible for payment of compensation to the petitioners.

9. The question remains with regard to quantum of compensation. The learned Claim Tribunal assessed the income of the deceased Arundeo at Rs. 400/- and rightly assessed the dependency amount of Rs. 300/- also. But the multiplier adopted by the Tribunal is not proper.

10. In Automobiles Transport (Rajasthan) Private Ltd. v. Devilal A.I.R. 1977 Raj. 276, a Division Bench of this Court has laid down some important quidelines for the determination of compensation. The relevant is that if the period is long one, the multiplier will be much smaller than the number of years, even where the contigencies are allowed for are of small account Taking in this view of the matter, I am of the opinion, that taking the dependency at Rs. 300/- a multiplier of 12 will meet the ends of justice. On multiplication this, the amount will come to 43,200/-. This amount if put in the Bank will give an interest of Rs. 450/- or so. Awarding of this amount will also go contrary to the another proposition of law laid down in the aforesaid case, i.e. the sum to be awarded as damages should be equivalent to the cost of purchasing as annuity of the relevant amount for the relevant period. This amount I feel is to be reduced down on account of lump sum payment also and it would be fair if it is scaled down at one sixth. After scaling down, the amount will come to Rs. 36,000/-. This amount seems to be just and fair.

11. I, therefore, allow the appeal, set aside the judgment and award passed by the learned Claims Tribunal, Jodhpur dated 11-3-1982 and pass an award directing the respondents No. 8,2 and 4 to pay a sum of Rs. 36,000/- to the petitioners Mangal Dev and Vimla Devi. It is further directed that this amount shall carry interest at the rate of 9 per cent per annum till payment from the date of the passing of this order. Parties shall bear their own costs throughout.