Rajasthan High Court - Jaipur
Fazal Hussain And Ors. vs Kalu Khan And Ors. on 3 March, 1989
Equivalent citations: II(1989)ACC391, 1990ACJ84
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT A.K. Mathur, J.
1. This appeal is directed against the judgment and award dated 5.12.1984 passed by the Motor Accidents Claims Tribunal, Jodhpur.
2. The brief facts giving rise to this appeal are that an accident took place on 17.7.1980 between a scooter RSQ 4062 and truck bearing No. RSN 3690 near Isaiyon Ka Kabristan. As a result of this accident deceased Akhtar Hussain died. Therefore, a claim petition was filed by father, mother, wife and two minor children of the deceased. The claim was contested by the non-claimants. It is alleged that the truck belonged to Sawal Dan son of Vijay Dan and it was driven by one Kalu Khan, driver. The vehicle was insured with United India Fire & General Insurance Co. Ltd. (hereinafter referred to as 'the insurance company').
3. In support of the claim, the claimants examined two witnesses, namely, PW1, Fazal Hussain, father of the deceased and PW 2, Mahendra Giri. PW 1, Fazal Hussain, father of the deceased has deposed that the deceased Akhtar Hussain was aged 29 years and he was earning Rs. 30/- to Rs. 35/- per day and he further deposed that he has wife and two children. PW 2 Mahendra Giri who was also on the scooter at the time of accident has deposed that this accident took place on the turn of Rotary Club by this truck which was driven in a rash and negligent manner. Soon after the accident, Akhtar Hussain was immediately taken to the hospital, but he ultimately succumbed to the injuries. He has further deposed that Akhtar Hussain was getting a sum of Rs. 20/- per day from printing of sarees. The learned Judge, Tribunal after recording this evidence and hearing both the parties dismissed the claim on account of the fact that the statement of Mahendra Giri was not reliable as according to the learned Judge the accident as has been deposed by Mahendra Giri to have taken place near Rotary Club whereas the accident has taken place near Isaiyon Ka Kabristan. The learned Judge found the testimony of PW 2 Mahendra Giri unreliable and dismissed the claim of the claimants as a whole. Aggrieved against this the claimants have filed the present appeal.
4. Mr. Bhandari, learned counsel for the appellants, has invited my attention to the testimony of PW 1 Fazal Hussain and PW 2 Mahendra Giri. He has also invited my attention to police papers and Fard Naksha Mauka, Exh. 3. Learned counsel submitted that as a matter of fact, the testimony of PW2 Mahendra Giri has not been properly appreciated. After seeing the statement of Mahendra Giri and Fard Naksha Mauka, it clearly transpired that the accident has taken place near Isaiyon Ka Kabristan. As a matter of fact, Mahendra Giri PW2 has deposed that the accident has taken place near Rotary Club, but in fact near the Isaiyon Ka Kabristan there is a Rotary Square and not the Rotary Club. Here, the learned Judge has been completely misled by Rotary Club and Rotary Chauraha (Square). As a matter of fact, the Isaiyon Ka Kabristan is near Rotary Chauraha (Square) and not the Rotary Club. This minor slip on the part of Mahendra Giri has been fatal and the learned Judge has disbelieved Mahendra Giri without looking to the Fard Naksha Mauka which was prepared by the police just after the accident and the truck as well as the scooter was seized from the spot. Thus, in this view of the matter, it was not proper for the learned Judge to have dismissed the whole claim of the claimants. According to the statement of Mahendra Giri, PW 2, the truck was driven in a rash and negligent manner by the driver of the truck.
5. The next question arises is as to who was the owner of the truck and whether it was driven by Kalu Khan driver or not. In reply to the claim petition, the owner of the vehicle has accepted this accident. He also admitted that this truck belongs to him and it is insured with United India Fire & General Insurance Co. Ltd. But it has been stated that the claimants have failed to prove as to who was driving the vehicle at the time of the accident. A reply has also been filed by the insurance company. The insurance company has also accepted that the vehicle was insured with them at the relevant time. They have also admitted the name of driver being Kalu Khan. They have not disputed whether Kalu Khan was authorised person or not.
6. Mr. B.R Mehta, learned counsel admitted before this court that the truck belonged to owner Sawal Dan and it was driven by his driver. Though, in the reply, they tried to shift this burden on the claimants. But since Sawal Dan was the owner of vehicle, therefore, it was in his knowledge whether it was driven by Kalu Khan or by any other person. By not disclosing the name of the driver of the vehicle, the owner of the vehicle cannot be absolved of his responsibility. If the owner of the vehicle is not prepared to face the facts and correctly state before the court that at the time of the accident as to who was driving the vehicle then too the owner cannot be absolved of his liability. It is not the case of the owner that the vehicle was taken away by some unauthorised person or any theft took place of the truck and, thereafter, the accident took place. Once the owner of the vehicle has been established and it has been established that it has met with an accident then the burden is on the owner to show that the vehicle was taken by some unauthorised person. Since it is not the case of the owner, therefore, the owner is responsible for this accident.
7. Mr. Mehta, learned counsel for the insurance company, has urged that the owner should show whether the driver was licence holder or not. That is a dispute between the owner and the insurance company and by that the claimants cannot be deprived of their compensation. Mr. Mehta has also invited my attention to the statement of PW 2 Mahendra Giri and insisted that since Mahendra Giri has deposed that the accident has taken place near Rotary Club, therefore, it should be taken that the accident has taken place near the Rotary Club.
8. The argument of the learned counsel cannot be sustained for the simple reason that a bona fide mistake has been committed by PW 2 Mahendra Giri by stating Rotary Club whereas the accident has taken place near Rotary Chauraha and on this score the whole claim of the claimants cannot be dismissed. It is common knowledge of the persons living in Jodhpur that this Rotary Chauraha is near the place of the accident and the accident has taken place near Isaiyon Ka Kabristan which is just near the Rotary Chauraha. Therefore, I am not prepared to accept the contention of Mr. Mehta and throw this claim of the claimants in toto.
9. The next question that arises is regarding the quantum of compensation. The deceased Akhtar Hussain was aged 29 years and his parents are fairly old. In 1983 when the statements of the claimants were recorded Fazal Hussain, father of the deceased, was aged 66 years and his wife was 53 years of age. There is no evidence on record regarding the age of the widow of the deceased. However, one son of deceased Akhtar Hussain was aged 5 years at the time of the accident and his daughter Nazma was only 12 days old at the time of filing of the claim petition. According to Fazal Hussain, father of the deceased, the deceased Akhtar Hussain was giving him Rs. 700/- to Rs. 800/- per month. But according to the testimony of Mahendra Giri, PW 2, the deceased was earning Rs. 20/- per day from printing of sarees. Therefore, the average income of the deceased was Rs. 600/- per month. Out of this amount Rs. 200/- must be spent by the deceased on himself and Rs. 400/-he might be spending on his parents and children etc. I consider the dependency of the parents and children to the extent of Rs. 400/-per month and multiplier of 20 in the facts and circumstances of the case will be just and fair. Thus, Rs. 400 X 12 X 20 = Rs. 96,000/-would be the compensation. Therefore, the claimants are entitled to compensation of Rs. 96,000/-. Out of this the statutory liability of the insurance company according to the unamended provisions was to the extent of Rs. 50,000/- and the same is quantified to Rs. 50,000/-. The remaining amount is decreed against the owner Sawal Dan and driver Kalu Khan. The aforesaid compensation should be distributed amongst the claimants as under:
(1) A sum of Rs. 12,000/- should be deposited in fixed deposit in any scheduled bank in the name of Roshan Bai, wife of deceased Akhtar Hussain for a period of five years. She will be entitled to get quarterly interest.
(2) A sum of Rs. 12,000/- should also be deposited in the name of Afazal Bai, wife of Fazal Hussain and mother of the deceased Akhtar Hussain in any scheduled bank for a period of three years. She will be entitled to get quarterly interest.
(3) A sum of Rs. 12,000/- should also be deposited in the name of Fazal Hussain, son of Mohd. Hussain and father of the deceased in any scheduled bank for a period of three years. He will be entitled to get quarterly interest.
(4) A sum of Rs. 30,000/- should be deposited in the name of Anwar Hussain, son of deceased Akhtar Hussain in any scheduled bank for a period of five years. The aforesaid amount shall be payable to him after the expiry of the period of five years. He will be entitled to quarterly interest.
(5) A sum of Rs. 30,000/- should be deposited in the name of Nazma, daughter of deceased Akhtar Hussain in any scheduled bank for a period of eight years. She will be entitled to quarterly interest.
10. Thus, the appeal is allowed and the order and award passed by the Motor Accidents Claims Tribunal, Jodhpur dated 5.12.1984 is set aside. The parties are left to bear their own costs.