Champa Devi and Others vs Ram Sarup and Others

V.K. Jhanji, J.—This appeal is directed against the award of the Motor Accidents Claims Tribunal dismissing the claim petition filed by the widow, daughters (out of which two are minors) and minor son of Mohinder Singh, who died in the accident.

Briefly, the facts are that on May 25, 1988, at about 1.30 p.m., the deceased, Dr. Mohinder Singh, was driving his scooter No. DEN-6106, while Ram Chander Trivedi, his teacher colleague, was sitting on the pillion. Both were coming from Pehowa to Kurukshetra and when they were about 1/2 kilometre behind Jyotisar towards Pehowa side, tractor bearing No. HNQ-3621 driven by Ram Dhari alias Pali Ram and owned by one Ram Samp, came from Kurukshetra side and hit against the scooter, due to which Dr. Mohinder Singh and Ram Chander Trivedi received multiple injuries and fell unconscious. From there, they were removed to the hospital. Mohinder Singh succumbed to his injuries. Ram Chander Trivedi, on regaining consciousness, lodged the first information report with the police. In the said first information report he could neither give the number of the tractor nor the name of the person who was driving the tractor. The claim petition, on contest by the owner and the insurance company, was dismissed on the ground that the claimants failed to establish the identity of the driver and also whether tractor No. HNQ-3621 was involved in the accident or not. The claimants have now filed the present first appeal in this court.

Counsel for the appellants has taken me through the statements of the witnesses as well as documents brought on the record. From the statement of P.W.-2, Mai Chand, mechanic, and also P.W.-5, Bipati Ram, I find that the identity of the tractor involved in the accident is established. P.W.-2, Mai Chand, in his statement, has stated that on May 25, 1988, at about 1.30 p.m. when he was coming from Pehowa to Kurukshetra, he noticed a tractor No. HNQ-3621 coming in a zia-zag manner and hitting against a scooter. Instead of stopping his tractor at the spot, the driver of the tractor made good his escape along with his tractor. However, he could not recognize Pali Ram when he was asked to recognize him in court. Otherwise also, from his statement, the identity of the tractor is established though he could not say with certainty as to whether Pali Ram was driving the tractor at that time. Similarly, P.W.-5, Bipati Ram, who is a matriculate and is a labourer, has stated that when he was coming from village Bhor Saidan at about 1.30 p.m., he saw one tractor bearing No. HNQ-3621 coming from Kurukshetra side. The tractor was being driven rashly and in a zig-zag manner and it hit the scooterist who was coming on his correct side of the road. Both these witnesses were categoric that the tractor was being driven rashly and negligently and after striking the scooter, the driver of the tractor sped away with the tractor. P.W.-5, Bipati Ram, in his statement, has further stated that he can recognize the person who was driving the tractor at the time of accident. When P.W.-2, Mai Chand, was being examined, Pali Ram was produced in court for his identification, but on the day when P.W.-5, Bipati Ram, was being examined, Pali Ram was not produced for identification for the reasons best known to the respondents. As a matter of fact, P.W.-5, Bipati Ram, denied the suggestion of the respondents that Pali Ram never drove the tractor. P.W.-5, Bipati Ram, was cross-examined at length, but he stood the test of cross-examination. His statement inspires confidence. Thus, from the evidence of P.W.-5, Bipati Ram, the claimants have been able to establish conclusively that tractor No. HNQ-3621 was involved in the accident and was being driven by Pali Ram and because of his negligence, the accident took place as a result of which Mohinder Singh died and Ram Chander Trivedi, who was sitting on the pillion of the scooter, suffered multiple injuries.

The Motor Accidents Claims Tribunal, while determining the compensation payable to the claimants, found that the deceased was drawing a salary of Rs. 3,600 per month. He left behind his widow, three daughters, out of which two were minors and one minor son. Dependency was taken to be Rs. 2,400 per month. Consequently, applying a multiplier of 8, the claimants were held entitled to a sum of Rs. 2,30,000.

Mr. Girish Agnihotri, learned counsel for the appellants-claimants, contends that instead of 8, a multiplier of 10 ought to have been applied. I find force in this contention. Mohinder Singh was 50 years of age and at the time of his death, had three minor children (two daughters and one son) and, therefore, he was expected to work even after his retirement. He being a lecturer, could have easily earned the amount equivalent to the salary he was last drawing. In these circumstances, I am of the view that a multiplier of 10 is reasonable and on applying the same, the claimants would be entitled to a sum of Rs. 2,88,000. They shall also be entitled to interest at the rate of 12 per cent. per annum from the date of filing the claim petition till realisation of the amount.

Faced with this situation, Mr. Ashok Aggarwal, senior advocate, learned counsel for the insurance company, contends that the insurance company is not liable as the claimants have not been able to prove on record that the driver had a valid licence. For this, he has placed reliance upon a judgment of this court in New India Assurance Co. Ltd. Vs. Surinder Paul and Others, . I find no force in this argument. The insurance company has pleaded that the driver was not holding a valid licence at the time of accident. It was for the insurance company to prove this fact. No evidence whatsoever has been brought on record to show that the driver was not having a valid driving licence. As a matter of fact, the insurance company never called, upon the driver to produce the licence. The claimants cannot be expected to prove in negative the plea raised by the respondents. It was for the respondents to produce proof in support of the plea so taken in the written statement. For this, I find support from the judgment of the Supreme Court in Skandia Insurance Co. Ltd. v. Kohilaben Chandravadan [1987] 62 Comp Cas 138 : [1987] 1 PLR 665, the judgment in Zora Singh v. Dalip Kaur [1990] 1 PLR 558 and the judgment in Narcinva V. Kamat v. Alfredo Antonio Doe Martino [1985] ACJ 397 : [1985] 58 Comp Cas 383. So far as the judgment in New India Assurance Co. Ltd. v. Surinder Paul [1990] 1 PLR 318 : [1990] ACf 940, relied upon by counsel for the insurance company is concerned, the same is clearly distinguishable on the facts of this case as in that case, the driver had not produced the driving licence either at the time of filing written statement or when his evidence was recorded or even at any subsequent stage. However, in the present case, this is not the position. The insurance company never gave any notice to the driver or to the owner at any stage of the proceedings to produce the licence and, therefore, now it is not open to the insurance company to contend that the driver was not holding a valid licence at the time of the accident.

For the reasons recorded above, this appeal is allowed with costs. The claimants would be entitled to a sum of Rs. 2,88,000 with interest at the rate of 12 per cent. per annum from the date of filing of the claim petition till realisation of the entire amount. Respondents Nos. 1 to 3 shall be jointly and severally liable to pay the amount. Costs are quantified at Rs. 1,000.