Madhya Pradesh High Court
Anil Tiwari And Ors. vs Saheb Singh And Ors. on 15 September, 1999
Equivalent citations: 2001ACJ471
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT Usha Shukla, J.
1. This is an appeal against the order dated 2.1.1997 passed by the Second Additional Motor Accidents Claims Tribunal, Khandwa, dismissing the petition for compensation filed under Section 166 of the Motor Vehicles Act, 1988.
2. Deceased Shanker alias Ashok was the son of late Beni Prasad Tiwari. The appellant No. 2 Rameshwar Tiwari is the brother of late Beni Prasad. Appellant Nos. 1 and 3, namely, Anil Tiwari and Tarabai are the son and wife of Rameshwar Tiwari. They claim to be the legal representatives of deceased Shanker on the ground that having lost his mother while he was a small child, he was brought up by his uncle appellant No. 2. His father had also expired in the year 1987, and deceased had left no other heirs except the appellants.
3. The case of the appellants was that deceased Shanker alias Ashok was working as a cleaner on the truck of Janinder Singh, respondent No. 2, and was getting a salary of Rs. 1,500 per month. Respondent No. 1 was the driver of this truck which was insured with respondent No. 3. This truck met with an accident on 16.2.95. It dashed against a tree resulting in the death of Shanker on the spot. They had claimed a sum of Rs. 8,93,000 as compensation for his death.
4. The owner and driver of this truck filed a joint written statement of denial of all averments made in the claim petition except that of ownership and insurance and also that respondent No. 1 was the driver of the truck. No attempt was made to explain the circumstances in which the accident had occurred. The insurance company also contested this claim and disputed the fact that the claimants were legal representatives of the deceased.
5. Learned Claims Tribunal held that Shanker alias Ashok had died in an accident with this truck and also upheld the claim of the appellants that they were the legal representatives of the deceased. But the petition was dismissed because the Tribunal held that rashness and negligence of the driver was not proved.
6. In this appeal the findings of the Tribunal about rash and negligent driving have been challenged on behalf of the appellants. It was argued that this was one such case where the doctrine of res ipsa loquitur ought to have been applied. The accident had occurred when the truck was negotiating a turn near village Padwase on the Faizpur-Bhusawal Road as was described by driver Saheb Singh in the first information report, Exh. P6, lodged by him at Police Station, Faizpur. In his own report, Saheb Singh stated that he had lost control over the truck which had dashed against a neem tree, and that conductor Shanker was trapped in the cabin. A copy of the post-mortem report and death certificate were also filed at the trial. These documents filed by the claimants were authentic copies which were given to them from the police station and ought not to have been brushed aside by the Tribunal on technical grounds.
7. We have heard the arguments advanced by both the sides and have also perused the record. It is true that no eyewitness of the accident was produced at the trial. But the documents which were given to the claimants from the police station duly attested as true copies, speak for themselves. The driver himself reported this accident at the police station admitting the accident and the fact that Shanker was trapped in the cabin of the truck, and that only his hands were visible. That he died on the spot is clear from the postmortem report, Exh. P9 and death certificate Exh. P2. The driver of the truck did not come forward to explain the accident. Even in his pleadings no explanation was given as to how and under what circumstances the accident had occurred. The very fact that this truck left the road and going on the offside, dashed against the tree, gives rise to the presumption of negligence on the part of the driver, for in the normal course vehicles do not stray off the road and strike against trees. The burden of proof was on the other side to explain and to say that the accident occurred without the negligence of the driver. And this burden the respondents have failed to discharge. The findings of the Tribunal that the claimants have not proved the negligence cannot, therefore, be sustained.
8. While we are at this point, we would also refer to the argument of the learned counsel for the respondents that the claimants had not proved the first information report Exh. P6, inquest report, Exh. P7, panchanama, Exh. P8, the post-mortem report, Exh. P9 and death certificate, Exh. P10, although they have been given exhibit numbers, while recording the statement of Anil Tiwari, AW 2. We do not find any force in this argument. These are authenticated copies which were obtained through the court after payment of the necessary charges as deposed by Anil Tiwari, AW 2, who also proved the receipt Exh. P3, evidencing payment of copying charges. That strict proof of these documents is not required in claims cases under the Motor Vehicles Act, is the view which has been consistently taken by courts. Reference may be made to Rajasthan State Road Trans. Corporation v. Devilal 1991 ACJ 230 (Rajasthan), in which this matter has been dealt in detail.
9. The deceased was about 30 years of age. He was working as a cleaner on this truck. His income may be taken to be Rs. 1,000 per month. Since he was living with his uncle Rameshwar Tiwari, AW 1, as member of his family, he must have been contributing his mite to the family kitty. After deducting one-third towards his personal living expenses, the dependency comes to Rs. 670 per month, i.e., Rs. 8,040 per year. Keeping in mind the age of the deceased and that of the claimants and also the fact that the deceased would have married in due course and would have had his own wife and children to support, we consider 12 to be the proper multiplier. The compensation thus works out to Rs. 8,040 x 12 = Rs. 96,480. Adding Rs. 2,000 as funeral expenses and Rs. 2,500 as loss to estate, the amount comes to Rs. 1,00,980.
10. Learned counsel for the respondents raised an objection that the appellants were not the legal representatives of the deceased and were, therefore, not entitled to any compensation for his death. But this issue was decided by the Tribunal in favour of appellant Nos. 2 and 3 and this finding has not been challenged by the respondents by filing cross-objection. The objection raised on this issue during the course of arguments is, therefore, not sustainable.
11. We may, however, refer to Gujarat State Road Trans. Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC), on the question of legal representatives. Their Lordships of the Supreme Court have observed in this case that in Indian society, brothers, sisters and brother's children, etc., live together and they are dependent upon the breadwinner of the family and there is no justification to deny them compensation. In that view of the matter, the claimants have a right to maintain a claim petition under Section 166 of the Motor Vehicles Act, 1988.
12. The result is that this appeal is allowed. The award of the Tribunal is set aside. The respondents are jointly and severally liable to pay a sum of Rs. 1,00,980 as compensation with interest at the rate of 12 per cent per annum from the date of petition till realisation.
13. Respondents are directed to deposit the amount less the amount already deposited, within a period of two months from the date of supply of certified copy of this order failing which the amount shall carry interest at the rate of 15 per cent per annum. On deposit the amount shall be disbursed to the claimants keeping in mind the well settled guidelines laid down by the Apex Court. Counsel's fee Rs. 1,000, if pre-certified.