Isher Devi vs Virsha Singh and Others

J.V. Gupta, J.—This appeal is directed against the award of the Motor Accidents Claims Tribunal, Sangrur, (hereinafter called ''the Tribunal'') dated May 2,1983, whereby the claim petition filed by the Appellant was dismissed on the ground that she had failed to prove that her husband Kishan Chand had died in the accident which was caused due to rash and negligent driving of truck No. PUR 7171, driven by Virsha Singh, Respondent.

The accident took place on August 12, 1981 and resulted in the death of the Appellant''s husband Kishan Chand. The Appellant claiming herself to be the legal representative of the deceased, filed the claim petition on the allegations that on August 12, 1981, at about 5 p.m. her husband, Kishan Chand, along with Hem Raj son of Devi Ram, AW 3, and Sunder Dass was coming from village Ubhawal to Sangrur. When the said Kishan Chand was near the field of Jit Singh, Virsha Singh, Respondent, came driving truck No. PUR 7171 rashly and negligently and struck it against the bicycle of Kishan Chand. As a result of the impact, Kishan Chand fell down and sustained injuries. Later on he succumbed to his injuries in the hospital. On account of his death she had suffered pecuniary loss to the extent of Rs. 1,00,000/- , which she was entitled to recover by way of compensation from the Respondents. The claim was resisted by Respondent Nos. 1 and 2, i.e., Virsha Singh, and Hardial Singh, the owner of the truck. They controverter the allegations of the claimant and alleged that truck No. PUR 7171 was never driven by Virsha Singh, Respondent, nor the said truck was ever involved in the accident. On the pleadings of the parties, the Tribunal framed the following issues:

(1) Whether Kishan Chand died in an accident and the accident was caused because of the rash and negligent driving of truck No. PUR 7171 by Virsha Singh, Respondent?

(2) Whether the applicant is the legal representative of Kishan Chand deceased?

(3) Relief.

Under issue No. 1, it was held by the Tribunal that the claimant had failed to prove that Kishan Chand had died in the accident which was caused because of the rash and negligent driving of truck No. PUR 7171 by Virsha Singh, Respondent. Under issue No. 2, it was found that Isher Devi was the legal representative of Kishan Chand deceased. No finding was given under issue No. 3 because of the finding under issue No. 1. Consequently, the claim petition was dismissed.

The Learned Counsel for the Appellant submitted that Hem Raj, who was an eyewitness to the accident, appeared in the witness-box as AW 3. His testimony has been wrongly ignored on the ground that he did not state that truck No. PUR 7171 was involved in the accident and that Virsha Singh, Respondent, was driving this truck rashly and negligently. The Learned Counsel also submitted that Virsha Singh, Respondent, was convicted and sentenced by the criminal court u/s 304-A, Indian Penal Code, for causing the death of Kishan Chand, by driving the truck rashly and negligently, vide copy of the judgment dated November 30, 1982, Exh. A-2. The Learned Counsel also pointed out that the appeal against the said conviction was dismissed by the learned Additional Sessions Judge, Sangrur, vide judgment dated January 25,1984. A certified copy thereof was filed in this Court.

After hearing the Learned Counsel for the parties on this point, I find force in the contention raised on behalf of the Appellant.

In his testimony, Hem Raj, AW 3, also referred to his statement made before the police, Exh. PW 3/A Therein, the truck number as well as the name of the driver is given. If his statement is read along with his earlier statement made to the police, it is quite evident that it was truck No. PUR 7171 driven by Virsha Singh, Respondent, which caused the death of Kishan Chand. Besides, the criminal court also convicted Virsha Singh, vide copy of the judgment, Exh. A-2, u/s 304-A, Indian Penal Code as he was found guilty for causing the death of Kishan Chand by driving the offending truck rashly and negligently. His conviction was maintained in appeal by the appellate court on January 25, 1984. In view of the statement, Exh. PW 3/A, and the judgment of the criminal court, Exh. A-2, it could not be successfully argued on behalf of the Respondents that it was not Virsha Singh, Respondent, who was driving truck No. PUR 7171, which had caused the death of Kishan Chand on August 12, 1981. The approach of the trial court in this behalf is wrong and erroneous. The entire evidence on the record has not been properly appreciated. The owner of the truck, Hardial Singh, Respondent, was proceeded ex parte before the Tribunal vide order dated January 10,1983. No written statement was filed by him. However, he appeared as RW1. In his cross-examination, he admitted that Virsha Singh, Respondent, was challenged u/s 304-A, Indian Penal Code, for driving his truck rashly and negligently and thereby killing Kishan Chand. He also admitted that he was convicted in the said case though the appeal against the same was pending. It was decided, as observed earlier, on January 25,1984. Under the circumstances, the finding of the Tribunal under issue No. 1 is liable to be set aside and it is held that Kishan Chand had died in the accident which was caused by rash and negligent driving of truck No. PUR 7171 by Virsha Singh, Respondent.

As regards the amount of compensation, the claimant Isher Devi appeared in the witness-box as AW 2. She stated that her husband was a vegetable seller. At the time of his death, he was about 50 or 55 years of age. According to her, he had been earning Rs. 30/- per day and used to pay Rs. 20/- per day to her. In her cross-examination, the suggestion that her husband was not earning more than Rs. 7- or 8/- per day was denied. Thus, from her statement, it can safely be concluded that at least Rs. 10/- were paid by the deceased to her every day out of his earnings and thus, Rs. 300/- per month was the dependency, which comes to Rs. 3,600/- per year. The deceased was about 50 years of age at the time of his death and by using the multiplier of twelve, she is entitled to Rs. 43,200/- as compensation. The Appellant will be entitled to this amount with interest at the rate of 12 per cent per annum from the date of the accident, i.e., August 12,1981, till realisation from the Respondents who will be liable to pay the same jointly and severally.

Consequently, this appeal succeeds and is allowed with costs. The award of the Tribunal is set aside and the claim petition is accepted as indicated above.