Kaushalya Devi and Others vs Sher Singh and Others

V.S. Aggarwal, J.—This is an appeal filed by Kaushalya Devi and her three sons Ravinder Kumar, Rajinder Kumar and Inder Mohan (hereinafter described as ''the appellants'') directed against the award of the learned Motor Accident Claims Tribunal, Kurukshetra dated 3.1.1994. By virtue of the impugned award the learned tribunal had dismissed the petition filed by the appellants.

The relevant facts alleged by the appellants are that on 5.6.1993 at about 10.30 P.M. the deceased alongwith his son Inder Mohan was going towards Kurukshetra after closing his tea shop at Pipli. They were travelling by an auto rickshaw bearing No. CHY 497. The auto rickshaw was in front of the house of H.S. Chatha. At that moment a truck bearing No. HYQ 7685 driven by Sher Singh respondent No. 1 came from the opposite side. It was being driven in a rash and negligent manner by respondent No. 1. A side push was given to the auto rickshaw because the truck came from the wrong side. As a result of the push, the deceased fell on the road and received multiple injuries on his face, right arm and other parts of the body. On 8.6.1993 he died as a result of the said injuries. The appellants had filed the claim petition with the learned Motor Accident Claims Tribunal, Kurukshetra (for short ''the tribunal'') seeking compensation of Rs. 4 lacs.

Respondents 1 and 2 contested the petition. It was asserted that the said truck was not involved in the accident. The truck was standing in front of Jhamb Motor and Oil Store, Ladwa Road, Pipli on 5.6.1993. The police took the truck in custody and involved the driver of the truck falsely in a criminal case.

In the separate written statement filed by the Oriental Insurance Company preliminary objection was raised that it was not liable to pay any compensation. Plea was raised that truck was being driven by a person who was not holding a valid licence. In any case it was denied that the accident took place as alleged by the appellants. The negligence, if any, was attributed to the three wheeler driver. The deceased might well have fallen due to some jerk.

The learned Tribunal had framed the following issues :-

1) Whether vehicle No. HYQ 7685 was involved in the accident? OPP.

2) If issue No. 1, is proved, whether the accident took place because of rash and negligent driving by the respondent No. 1, driver? OPP.

3) If issue No. 1 and 2 are proved, to what amount of compensation, if any, are the petitioners entitled and from whom? OPP.

4) Relief.

After appreciating the evidence it was held that two witnesses produced by the appellants namely Diwan Chand PW-2 and Inder Mohan PW-3 were not present at the time when the accident took place. It was further held that in any case negligence on the part of the truck driver is not proved. Accordingly, the findings on issues No. 1 and 2 were returned against the appellants. With respect to issue No. 3 the learned tribunal held that the income of the deceased could only be Rs. 1000/-P.M. He must be contributing Rs. 600/- p.m. on his wife Kaushalya Devi and son Ravinder Mohan. Multiplier of 10 was applied and it was held that in case issues No. 1 and 2 were to be proved in favour of the appellants. they would Be entitled to compensation of Rs. 72,000/-. It was to be apportioned between Kaushalya Devi and Ravinder Mohan in the ratio of 2 x 1. Keeping in view the findings on issues No. 1 and 2, the petition was dismissed. Aggrieved by the same, the present appeal has been filed.

The first and foremost question that comes up for consideration is as to whether the two alleged eye witnesses were present at the time when the accident took place, or not. The learned tribunal did not believe the statement of Diwan Chand PW-2 because the said findings were based on the fact that the statement of PW-2 Diwan Chand is controverted by the post-mortem report because the witness stated that injuries were on the parts of the body which were not shown by the postmortem report. It was further referred to the fact that accident took place in June, 1993 while the witness stated that it was May, 1993. It was also held that driver of the three wheeler suffered no injury and all these factors only showed the Diwan Chand was not present at the spot.

Diwan Chand had appeared as PW-2 and stated that in May, 1993, at about 9.00 or 10.00 P.M. he was moving from Pipli to his house at Kurukshetra. The deceased and his son were also in the same three wheeler scooter. A loaded truck was coming from the opposite direction. In front of the house of Shri Chatha the truck gave no dipper or light. It was loaded with Chauff and had hit the three wheeler and dragged it behind. Krishan Lal fell and suffered injuries. He had taken the injured to a clinic. During cross-examination, the witness stated that one of his maternal uncle Gela is alive. Krishan Lal deceased is the son of his maternal uncle Gurdial Ram. The witness could not give the name of three wheeler driver. He stated that the deceased was sitting on the left side of the driver on front seat. The driver suffered no injury. He explained that he had only studied uptil 1st standard and the deceased had suffered injuries on his left side.

It is obvious that the witness is related to the deceased but merely because a person is a relation of the deceased is no ground to assume that he would depose falsely. His testimony had been assailed primarily on the ground that after getting the deceased (the injured) admitted in the private clinic, he had gone and did not approach the police. On closure scrutiny the said plea necessarily must be rejected. This is for the reason that firstly every body would attend to the injured rather than rushing to the police station. Secondly, every person is not so conscious in this regard about the recording of the first information report immediately. This is for the reason that it had transpired in his testimony that the injured was in his senses at that time. It could not be visualized that he could not live for long. As would be noticed hereinafter even the son of the injured was with him. If this witness therefore, left the injured-deceased is no ground to assume that he was not present at the spot.

As regards the other contentions that the witness deposed that injuries were on left part of the body while the post-mortem report indicates that it was on the right side, is not a factor which can prompt the court to conclude that he was not a truthful witness. Such minor discrepancies can always occur in the testimony even of a truthful witness. At the dead of the night when the accident took place the injured was removed to the hospital. At that time even the medical examination would not have been conducted. If the injuries, therefore, were wrongly stated to be on the left side is not a tilting factor against the version of the appellants.

So far as Inder Mohan PW-3 son of the deceased-injured is concerned, he has also supported the prosecution case. He stated that Diwan Chand and his father were in the three wheeler scooter. In front of the kothi of Shri Chatha truck No. 7685 came from the opposite side. It had hit the three wheeler scooter on one side. His father fell down and received injuries. Later he died. During cross-examination he testified that he runs his Rchri (push cart) in front of the Bus Stand, Pipli. He explained that his father was sitting on right side hand of the driver. He was occupying the rear seat alongwith Diwan Chand. He added that there was another passenger on the back side. He did not receive any injuries. He denied that Diwan Chand is the first cousin of his father.

Statement of this witness was the subject matter of criticism because the tribunal had also recorded that the witness lives at Pipli. Therefore, there is no possibility of this witness accompanying the deceased. It was further recorded that the three wheeler driver has not been examined. Ordinarily a person could not occupy the front seat on the right side of the driver.

But the said criticism indeed is not positive and does not cut any ice. The witness was accompanying his father. He had left his father in the hospital to arrange for money. It is obvious that they were not very rich persons. Arranging the money was necessary because of the injuries. Every persons reacts in a particular situation in a particular way. Once he had left his father in the hospital looking for money to meet the expenses, therefore, was a basic necessity. On this account the statement of this witness cannot be rejected.

As regards the fact that the witness or the other persons did not receive any injury, it goes without saying that it is in evidence that the deceased had fallen after the impact with the truck. The injuries were received because he fell down on the ground. The occupants of the back seat did not fall and, therefore, necessarily they did not receive the injuries. The presence of the witness is natural and cannot be ignored. I hold, therefore, that the witnesses were present at the relevant time.

The said evidence clearly establishes that the truck in question referred to above was involved in the accident. This is also proved by the fact that on the same day, the truck had been seized as admitted in the reply.

As regards the question as to whether there was negligence on the part of respondent No. 1 or not, one can again refer to the evidence on the record. It has transpired in evidence that a push was given by the truck to the auto rickshaw. The truck was loaded with Chauff and the protruding portion of the same had given push to the auto rickshaw. It is common knowledge that the trucks are laiden heavily with chauff and the protruding portions of the trucks arc more than 2 to 3 feet beyond the width of the truck. One is, therefore, not surprised that the protruding portion had hit the three wheeler. It was due to rash and negligent driving of the driver of the truck. The learned tribunal was in patent error in holding that there was no negligence on the part of the truck driver. The findings on issues No. 1 and 2 of the learned tribunal are set aside.

As regards the amount of compensation, the learned Tribunal had taken the income of the deceased at Rs. 1000/- p.m. He was an able bodied person and was doing small business. The income so assessed cannot be described to be unreasonable. It was rightly held that he must be spending Rs. 600/- p.m. on Kaushalya Devi and Ravinder Mohan. There was no fault found with respect to the multiplier of 10 and therefore, the compensation was rightly assessed at Rs. 72,000/-. In this regard there is no ground to interfere in the said findings.

For these reasons, the appeal is accepted and the award of the learned Tribunal is set aside. Instead Kaushalya Devi and Ravinder Mohan are awarded compensation of Rs. 72,000/- in proportionate of Rs. 2 x 1. They would be entitled to interest at the rate of 12 per cent per annum from the date of filing of the petition till final payment.