Rajasthan High Court - Jaipur
Nathu Singh Verma And Ors. vs Behari Dass And Ors. on 26 February, 1992
Equivalent citations: 1993ACJ1233
JUDGMENT Mohini Kapur, J.
1. The claim of the appellants, Who are the parents, brothers and sisters of the deceased Hemendra Singh, was dismissed by the Motor Accidents Claims Tribunal, Ajmer, on 21.8.1984 and against this decision the present appeal has been preferred.
2. Hemendra was a student of Class IV in St. Judice School, Adarshnagar, Ajmer. On the fateful day, i.e., on 6.1.1977, he was returning home after taking tuition and he was sitting on the pillion seat of the bicycle driven by Kaliya. The allegation is that when they were on Mayo College Link Road, truck No. RJZ 9041 came at fast speed and the driver Behari Dass came driving the truck rashly and negligently and at that time the accident occurred and Hemendra was crushed under the wheel of the truck. He died on the spot. Damages to the extent of Rs. 80,000/- were claimed. It was mentioned in the claim that the ambition of the parents was to make the deceased a doctor after giving him good education. It was also mentioned that the maternal father of the deceased wanted to adopt him and he had extensive property. All the ambitions came to end with the death of Hemendra.
3. One written statement was filed by the owner and the driver of the truck while a separate written statement was filed by the insurance company. The owner and driver denied the accident as well as the claim for compensation. It was mentioned that the driver Behari Dass had been acquitted in the criminal case under Section 304A, Indian Penal Code, against which no appeal or revision was filed. The insurance company also denied that the accident took place with the track in question. In the additional pleas, it was mentioned that Kaliya was not an experienced cyclist and he could not control his vehicle as two persons were riding the same and the accident occurred because he lost the control. It was mentioned that the driver of the truck tried his best to avoid the accident, hence the insurance company was not liable to pay the compensation.
4. The learned Judge framed the following issues:
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5. Issue No. 1 was discussed and after considering the evidence produced in the case it was held that the evidence was not sufficient to hold that truck No. RJZ 9041 was involved in the accident or that Behari Dass was driving the same rashly or negligently. The evidence about rash and negligent driving was also not accepted, as such the claim was dismissed.
6. The learned counsel for the appellants has contended that the acquittal of the vehicle driver by the criminal court is not binding in claims proceedings and the evidence which had been led in these proceedings can be said to be relevant for purpose of arriving at a finding in these proceedings. For this proposition reliance has been placed on Mahavir Pershad v. Municipal Corporation of Delhi 1975 ACJ 190 (Delhi). This is not contested by the learned counsel for the respondents and it can be said that the evidence in this particular case is to be looked into in order to decide as to how the accident occurred and who could be made liable for the same.
7. There are eye-witnesses of the incident. PW 3, Simon David, has stated that he is a neighbour of the father of Hemendra and Hemendra used to go for tuition every evening. On 6.1.1977 this witness went to a betel shop known as Milan Pan Wala at about 6.00 p.m. At that time he saw Hemendra coming riding on the pillion seat of the bicycle driven by Kaliya. They were coming from Nasirabad Road to Mayo Link Road when a truck came from the back side of the witness and it was being driven at a very fast speed. The track came on the left side of the bicycle and hit the bicycle. Hemendra fell down and the wheel of the truck ran over him. The truck driver did not stop and ran away. The witness noticed the truck No. RJZ 9041. It was this witness who informed the maternal grandfather of the deceased about the accident. In cross-examination he also specified that the accident took place from the front right side wheel of the truck. The other witness PW 5, Satyanarain, has also stated that he reached the site after the accident and found that a track used for carrying stones had caused the accident. He could not see the driver of the truck but the number of the vehicle was RJZ 9041.
8. Both these witnesses were not examined by the police and this fact has been brought out in the cross-examination. PW 6, Kaliya, who was riding the bicycle has described the accident. According to him, the truck came from the opposite direction and hit the bicycle due to which Hemendra fell down and was overrun by the truck. He is not a literate person hence could not notice the number of the track. The truck did not stop and sped away. All these witnesses cannot be disbelieved merely because they did not go to the police station to lodge the report or because they were not interrogated by the police while investigating the case. Two witnesses have given the number of the truck which caused the accident and merely because the witnesses could not identify the person who was driving the track would not go to show that 'this truck was not involved in the accident. The truck driver Behari Dass could not be examined as he had died when the case came up for evidence of the respondents. The owner Nasiruddin has only stated that he had not sent the truck towards Mayo College Road at any time. The accident did not occur on highway but in residential area and fast driving of the truck at such a place by itself is negligence of the driver. When the respondent has specifically denied the accident and there are witnesses examined by the appellants to show that it was the truck RJZ 9041 which caused the accident then there is no reason to disbelieve the witnesses. From the evidence it is established that the accident occurred on account of the rash and negligent and fast driving of the truck driver Behari Dass and it was in this accident that Hemendra died, the finding of the learned Tribunal on issue No. 1 deserves to be reversed.
9. The question which arises is as to what compensation should be awarded to the appellants. The learned counsel for the appellants has placed reliance on Hassa Mal v. Jatti Ram 1986 ACJ 1121 (Rajasthan) [Sic. New India Assurance ,Co. Ltd. v. Ram Dayal 1986 ACJ 464 (Rajasthan)] and contended that there should not be any discrimination as to what would be the earning capacity which can be made basis for grant of compensation. In this case the boy, who died, was 18 years of age and he stood third in merit list of H.S. examination, the age of 70 was adopted as life expectancy of parents and the benefits which the parents would have deserved assessed at Rs. 200/- per month. The multiplier of 20 was taken. The ages of the father and mother of the deceased were 51 and 47 respectively. As against this the learned counsel for the respondents has placed reliance on Purshottam Das Goyal v. Sant Lal 1991 ACJ 1096 (Rajasthan). In this case the deceased was only a child aged 12 years. The compensation awarded by the Tribunal was Rs. 25,000/- and it was enhanced to . 40,000/-. In this case the background of the family of the deceased is not available.
10. In the present case the father of the deceased is a teacher while the deceased was studying in English School and was also taking tuition so as to be well up in his studies. The age of the father is 39 years and the mother must be somewhat less than this. It is a matter of speculation that after completing study what would be done by the deceased and what would be his income. However, it can be said that he would have his own family and would have at the same time looked after his parents by keeping aside a part of his income for them. Before doing all this, it was necessary for the parents to invest a considerable amount in his study also. All these factors have to be considered in granting compensation. The deceased had two other brothers, sisters also, who have also been made claimants. Considering the family background and all other circumstances compensation to the tune of Rs. 40,000/- would be adequate.
11. The appeal of the claimants is accepted. Their claim is decreed for a sum of Rs. 40,000/- against all the respondents. The amount would be paid within a period of three months, failing which the amount of the award shall carry interest at the rate of 12 per cent per annum.