Punjab-Haryana High Court
Om Parkash And Anr. vs Dharam Pal And Ors. on 4 September, 1979
JUDGMENT Rajendra Nath Mittal, J.
1. This appeal is directed against the judgment of the Motor Accident Claims Tribunal, Jind, dated October 10, 1978.
2. Briefly, the facts are that on March 19, 1974, Dwarka Dass, deceased, was coming from the Railway Station, Jind, to Jind City in a tonga. The tonga was being driven by one Ram Chander. When he reached near Jwalmala Octroi post, a truck bearing No. HRJ-5425 belonging to Om Parkash, respondent No. 1, and driven by Vijey Singh, respondent No. 2, collided against the tonga. As a result of that Dwarka Dass sustained injuries and died immediately. It is alleged that the accident took place on account of rash and negligent driving of respondent No. 2. A claim petition was filed by the sons, daughter and widow of the deceased for recovery of Rs. 30,000 as compensation, against the owner, his driver and Oriental Fire & General Insurance Co. One of the daughters of the deceased was impleaded as respondent No. 4.
3. The respondents contested the petition. Respondents Nos. 1 and 2 filed a jointly written statement wherein they controverted the allegations of the petitioner and said that the accident took place on account of the negligent driving of Ram Chander, tongawala. No specific plea was taken in the written statement by Vijey Singh that he was not driving the truck but he said so while making the statement in the court. The insurance company denied its liability and also pleaded that Vijey Singh did not possess a valid licence and, therefore, was not authorised to drive the truck. On the pleadings of the parties, the following issues were framed by the Tribunal:
1. Whether the accident is the result of rash and negligent Act of Vijey Singh, respondent No. 2 ?
2. If issue No. 1 is proved, to what amount of compensation the claimants are entitled and from whom ?
3. Whether the petition is not maintainable without seeking the permission of the court on behalf of the minor claimants ?
4. Whether the petition is not maintainable in the absence of impleading the tongawala as a party to the present litigation ?
5. Whether respondent No. 5, Vijey Singh, possessed a valid licence and as such was authorised to drive the vehicle in question ? If not to what effect ?
6. Whether the present claim is barred by time ?
7. Relief.
4. It was held that the accident took place on account of rash and negligent driving of Vijey Singh, respondent; that Vijey Singh was not holding a valid licence; that the claim was within limitation and that the petitioner was entitled to Rs. 30,000 as compensation. Issues Nos. 3 and 4 were not pressed before it. In view of the aforesaid findings, the claimants and respondent No. 4 were awarded an amount of Rs. 30,000 as compensation against respondents Nos. 1 and 2 only.
5. The first contention of the learned counsel for the appellants is that the burden of issue No. 5 was placed wrongly on Vijey Singh, respondent No. 2. He argues that the insurance company took a plea that he had no valid licence and it was for the insurance company to prove so. He, in support of the contention, referred to Amarshi Gokaldas v. Indian Globe Insurance Co. Ltd., AIR 1954 Saurashtra 81 and Jogindra Kuer v. Jagdish Singh AIR 1964 Pat 548.
6. I have given due consideration to the argument of the learned counsel but regret my inability to accept it. The case was instituted before the Tribunal in September, 1974, and remained pending there till October, 1978. Vijey Singh, the driver, did not raise an objection regarding burden of proof either at the time of framing of issues or thereafter. If he was aggrieved regarding burden of proof, he should have made a grievance before the Tribunal. It is also well settled that after the evidence has been led, the burden of proof becomes immaterial. This point has also not been taken in the grounds of appeal. In the circumstances, the counsel for the appellants cannot be allowed to challenge the burden of proof of the said issue in the appeal in this court. I have otherwise examined the matter and find that the burden of proof of the issue had been correctly placed on him. Section 106 of the Indian Evidence Act provides that when a fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The above section is fully applicable to the present case. The fact whether Vijey Singh, appellant, had a driving licence or not was within his knowledge and, therefore, it was for him to prove so. The insurance company could not be asked to prove in the negative that the said appellant had no driving licence. In the aforesaid view I am fortified by the observations of the Madhya Pradesh High Court in Anand Insurance Company Ltd. v. Hasenali [1975] ACJ 471. There a similar question arose. The Bench observed that if it was pleaded by the insurance company that the driver of the vehicle did not have the driving licence, it was for the driver to produce the licence. The company cannot be expected to call for the record of the regional transport authority of each and every place in the country. I am in respectful agreement with the observations of the learned Bench. The argument of the learned counsel is, therefore, liable to be rejected. The cases relied upon by him are distinguishable.
7. Faced with the aforesaid difficulty, Mr. Kapoor sought to urge that in fact Vijey Singh had the licence but he could not produce it before the Tribunal. He moved an application under Order 41, Rule 27 of the Code of Civil Procedure (Civil Miscelleneous Application No. 54-C-II/79) to tender in evidence the copy of the licence produced with the application. The application has been opposed by the respondents. The appellant has not produced the original licence. The reason given by him for non-production of the licence before the Tribunal is inadvertence. This is hardly a sufficient ground for allowing him to produce additional evidence. Order 41, Rule 27 of the Code, inter alia, provides that parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate court. The court, however, can admit the additional evidence, inter alia, if it requires the document to enable it to pronounce judgment or for any other substantial cause. The case remained pending before the Tribunal for four years but the driver failed to produce the licence. It is a well-established law that a party to a litigation cannot be allowed to lead additional evidence to fill in a lacuna. In the present case, it is evident that the driver wants to do so. The licence is not required by the court to pronounce the judgment. Consequently, I do not find sufficient reasons to allow the driver to produce it.
8. The last contention of the learned counsel for the appellants is that the amount of damages has not been properly assessed. He submits that the claimants-respondents examined Dharam Pal, the claimant, only and no other witness to prove the income of the deceased. He argues that Dharam Pal's statement that his father was earning Rs. 475 per mensem should not be accepted as the account books of the deceased have not been produced. He further argues that some of the sons are majors and they are not entitled to any compensation. He also submits that, in any case, the amount of compensation granted by the Tribunal is excessive.
9. I am also not convinced with these arguments of the learned counsel. Dharam Pal has stated that his father used to purchase waste papers, empty tins, etc., and sell them. He had a shop in his residence. He was living at Delhi with his family and running the expenses of the whole family. He then deposed that he earned about Rs. 475 per month. His statement inspires confidence. There are no grounds to disbelieve him. The deceased had a large family to support. Even an ordinary labourer earns Rs. 7 to 8 a day. In a place like Delhi it was not possible for him to maintain the family without earning that much amount. I, therefore, agree with the finding of the Tribunal that he was earning about Rs. 475 per mensem.
10. The Tribunal, in order to determine compensation, gave a finding that the deceased was about 48/49 years of age at the time of death and he could live and work for about 15 years more. That finding has not been challenged before me. Therefore, I accept it to be correct. Out of an income the deceased might be spending about Rs. 150 per month on himself and the balance for running the expenses of the family. Thus, he was spending about Rs. 325 per mensem, i.e., Rs. 3,900 annually, towards the family expenses. Recently, a Full Bench judgment of this court in Lachhman Singh v. Gurmit Kaur [1979] PLR 1, laid down the principles for determining compensation. Inter alia, it was held in the judgment that for the purpose of calculating the just compensation, annual dependency of the dependants should be determined in terms of the annual loss accruing to them due to the abrupt termination of life. For this purpose, the annual earning of the deceased at the time of the accident and the amount of the same which he was spending for the maintenance of the dependants will be the determining factor. The basic figure will then have to be multiplied by a suitable multiplier, which shall be determined by taking into consideration the number of years of the dependency of the various dependants, the number of years by which the life of the deceased was cut short and the various imponderable factors such like early natural death of the deceased, his becoming incapable of supporting the dependants due to illness or any other natural handicap or calamity, the prospects of the re-marriage of the widow, the coming to age of the dependants and their developing independent sources of income as well as the pecuniary benefits which might accrue to the dependants on account of the death of the person concerned. In view of the observations of the Full Bench, a suitable multiplier has to be found out in this case. There is no evidence to the contrary that the deceased was not running the expenses of the family which included Dharam Pal, the claimant. It is true that Dharam Pal is 32 years of age and is supposed to earn something. No question was, however, put to him in cross-examination in this regard. The other two sons of the deceased are aged 19 and 21 years of age. They are to be settled in life which after the death of their father is the responsibility of their mother. Shmt. Nimbo Devi, the widow, might be of the same age as was that of the deceased. In her case also, it may be presumed that she was likely to live for another 15 years or so. After taking into consideration all the aforesaid circumstances, I am of the opinion that 10 would be a suitable multiplier. Therefore, the claimant-respondents would be entitled to about Rs. 39,000. They have, however, filed a claim for Rs. 30,000 and it has been allowed by the Tribunal. I, consequently, do not find sufficient reasons to interfere with the award.
11. For the reasons recorded above, the appeal fails and the same is dismissed with costs. Counsel's fee Rs. 200, to be divided equally by the claimants and the insurance company.