Radhelal vs Nilkanth and Others

S. Awasthy, J.—This appeal has been preferred by the claimant against the award dated 8.5.1981 in Motor Accident Claim Case No. 6 of 1977 passed by the Motor Accidents Claims Tribunal, Balaghat.

On 17.5.1977, Pradeep Kumar, son of the claimant, was driving a scooter No. MPS 7553 with Chandra Kumar as pillion rider. A truck No. MHG 4128 alleged to have been driven by Nilkanth Respondent No. 1 and owned by Gurumitsingh Respondent No. 2 which was insured with Respondent No. 3, dashed against the said scooter resulting in the death of said Pradeep Kumar aged 20 years. The pillion rider Chandra Kumar also sustained a fracture. A case u/s 304-A Indian Penal Code, was started against Nilkanth which resulted in his acquittal.

It is alleged that late Pradeep Kumar was earning Rs. 800/- per month. He was not married. A claim of Rs. 1,50,000/- was made in the petition.

The Respondent No. 1 Nilkanth denied that he was driving the said truck on the relevant day at the relevant time. He even denied that Gurumitsingh Respondent No. 2 was the owner of the said truck. However, he admitted that his driving licence was seized by the police.

The Respondent No. 2 Gurumitsingh denied all the allegations in the petition including his ownership of the said truck.

The Respondent No. 3, New India Assurance Company Limited, denied all the allegations made in the petition but admitted that the said truck was insured with the said company. A defence was taken that the truck was driven by an unlicensed driver at the relevant time. The name of that unlicensed driver was not mentioned.

The Tribunal found that it was not proved that the said truck was driven by Nilkanth rashly or negligently or the truck belonged to Gurumitsingh. On the said findings, the petition was dismissed.

The case was listed before us on 28.11.1984. We directed the Respondent No. 2 to produce the policy and registration certificate of the truck and also directed the Respondent No. 2 to produce a copy of the policy of insurance of truck No. MHG 4128. On 8.4.1985, the Respondent No. 2 produced the registration certificate and the Respondent No. 3 produced the insurance policy of the said truck. From the said documents, we found that Gurumitsingh was the recorded owner of the truck. It is, therefore, no longer in dispute that the truck No. MHG 4128 which was insured with New India Assurance Company Limited belongs to Gurumitsingh Respondent No. 2. We accordingly hold that truck No. MHG 4128, on the date of accident, belonged to Gurumitsingh Respondent No. 2 and was insured with Respondent No. 3.

Chandra Kumar Kankariya (PW 4) was the pillion rider with Pradeep Kumar. He is the sole eye-witness to the accident. He has stated that he had gone to Gondia alongwith Pradeep Kumar on his scooter and was coming back to Balaghat at about 11 a.m. Pradeep Kumar was driving the scooter. In the turning near Nawagaon, which is about 3 km. from Balaghat, a truck loaded with timber came with a great speed from Balaghat side and its front right wheel dashed against the scooter. The driver of that truck left the truck near the spot and ran away through the fields. This witness sustained a fracture in his leg while Pradeep Kumar sustained an injury on the head. Pradeep Kumar died on the spot. He has denied the suggestion that the driver of the scooter came with a great speed and dashed against the truck in nervousness.

Premlal, head-constable (PW 5), proved the seizure of the scooter, MPS 7553, Exh. P-5 and the seizure of the truck, MHG 4128, Exh. P-6. From the perusal of the seizure-memo, Exh. P-5, it is clear that Vespa scooter was seized from the spot on 17.5.1977 at 6.30 p.m. and the truck was seized the same day at 4.45 p.m. from the spot, vide Exh. P-6. The owner of the truck, Respondent No. 2 has simply denied that the said truck was seized from the spot and further that it belonged to him. Though Chandra Kumar (PW 4) has not mentioned the number of the truck yet from the seizure-memo, Exh. P-6 and the statements of Chandra Kumar (PW 4) and Premchandra (PW 3), it is clear that the said truck loaded with timber was abandoned by the driver near the place of accident and the same was seized the same day. The owner of the truck had to explain as to how his truck was lying at the place of accident without there being a driver on it. No explanation has been given by the owner. We, therefore, have no1 hesitation in holding that the said truck was involved in the said accident.

From the evidence of Chandra Kumar (PW 4), it is clear that the said truck was being driven rashly/negligently which caused the accident. There is no evidence led by the Respondents to rebut the statement of Chandra Kumar. The driver of the truck has not been examined. The doctrine of res ipsa loquitur may also be relied upon. We, therefore, hold that the truck No. MHG 4128 was being driven rashly and negligently which caused the accident.

Now, the question arises as to who was driving the truck at the relevant time. Nilkanth has denied all the facts pleaded by the claimant and so is the ''case with the Respondent No. 2. They even went to the extent of saying that the said truck did not belong to the Respondent No. 2 which has been found by us to be absolutely false statement. If Nilkanth was not driving the vehicle, the name of the driver who was driving the vehicle should have been disclosed by the Respondents. It was a fact within the personal knowledge of the Respondent No. 2 but he was satisfied by mere denial of all the facts stated in the petition. No evidence has been led by the Respondents. Under these circumstances, we draw adverse inference against the Respondent Nos. 1 and 2 and hold that the Respondent No. 1 was driving the vehicle at the relevant time.

The claimant is the father of the deceased Pradeep Kumar. He has stated that Pradeep Kumar was running a shop of electrical goods which he himself had opened. He was earning about Rs. 800/- to Rs. 900/- per month. He was a matriculate. This witness also used to sit in the shop and after the death of Pradeep Kumar his other sons are also sitting in the shop. The total earning from the shop is about Rs. 800/- to Rs. 900/- per month. Pradeep Kumar was living joint with him. At the time of the accident, this witness was running a flour-mill and a huller. He is corroborated by Ramdayal Chourasia (PW 2). The witness is aged about 57 years on the date of his deposition. He is expected to live at least up to the age of 75 years, looking to the age at the time of the death of his father, uncle and grandfather as deposed to by him. Thus, Pradeep Kumar would have contributed to the family for about 18 years. There is no evidence as to how much he was contributing to the family from his income as alleged by the claimant. It is merely a conjecture. Apart from this, no account books or any documentary evidence has been produced to show as to what was his income and how much he had been contributing to the family. However, we fix Rs. 150/- per month as the amount which he would have been contributing for the family of. his father. Multiplying this figure with the period, the total amount comes to Rs. 32,400/r which he would have contributed towards his father''s family had he survived till the death of his father. Since we are making a lump sum payment, deductions are to be made from the amount so arrived at. We deduct Rs. 7,400/- and fix the amount of compensation at Rs. 25,000/-.

The insurance company has taken the plea that the driver of the truck did not have the driving licence. The name of the driver has not been disclosed in the pleadings. The Respondent No. 1 had the driving licence, Exh. P-7. We, therefore, hold that all the Respondents are jointly responsible to pay the compensation to the claimant-Appellant.

We allow the appeal and direct that the Respondents shall pay Rs. 25,000/- to the claimant-Appellant as compensation, with interest at the rate of 6 per cent per annum from the date of the application i.e. 2.11.1977 till the date the amount is paid to the Appellant. The Respondents shall also pay the costs of this appeal and suffer their own. Counsel''s fee, according to schedule, if certified.