Rohtak Hissar Transport Company (P) Ltd. and Another vs Raj Wati and Others

S.S. Sodhi, J.—This judgment will dispose of FAO No. 293/1975 Rohtak Hissar Transport Company (P) Ltd. and Anr. v. Smt. Raj Wati as also F.A.O. No. 37/1976 Raj Wati and Ors. v. Randhir Singh and Ors. Both these appeals are directed against the same award of the Motor Accidents Claims Tribunal and were accordingly heard together.

The accident in this case took place on 5.7.1973 at about 5 a.m. on the Rohtak Kalanaur road near the Sat Jinda Kaliyana College between a camel cart and truck No. HRR 2582. Rohtas deceased who was driving this camel cart died as a result of injuries suffered by him in this accident. It is in respect of this matter that an application was filed by Raj Wati, the widow of Rohtas deceased, alongwith her children and Nanak, the father of the deceased seeking compensation for the loss suffered by them arising from the death of the deceased.

The Tribunal found that the accident had taken place due to the rash and negligent driving of the truck driver and also came to the finding that the loss suffered by the claimants was to the tune of Rs. 250/- per month. Computed on this basis, the Tribunal found that the claimants would be entitled to Rs. 75,000/- as compensation but held them entitled to only Rs. 58,000/- keeping in view the fact that this was the sum claimed by the claimants. In addition, Rs. 2,000/- was awarded for the loss of the camel and the damage to the cart. A sum of Rs. 7,000/- was, however, deducted from the Rs. 60,000/- that the claimants were found entitled to on account of the value of the property of the deceased inherited by the claimants; in other words, the total amount awarded was Rs. 53,000/- .

The owner and insurance company of the truck sought to challenge the finding of the Tribunal both with regard to negligence as also the quantum of the compensation awarded. The claimants, on the other hand, appealed against the amount awarded as compensation. It was their case that they were entitled to enhanced compensation.

The version of the accident as put forth by the claimants was that on 5.7.1973 Rohtas deceased accompanied by his brother Parichant left his village on his camel cart with bags of gram and barley loaded thereon for Rohtak Mandi. The deceased was plying the cart while his brother was sitting on the bags. At about 5.00 a.m. when they were about a mile away from Kalanaur near the Sat Jinda Kaliyana College, truck No. HRR 2582 came from the side of Rohtak. It was being driven at a very fast speed in a very rash and negligent manner. The truck went out of control and swerved to the extreme right side of the road and hit into the camel cart. The rehri and the camel were pushed towards the Kalanaur side and dragged to a distance of about 20 yards. Parichant fell on one side of the road while the bags which had been loaded on the cart were scattered on the ground. The camel died at the spot while Rohtas was seriously injured. Immediately after the incident, the driver of the truck Randhir Singh who was drunk ran away alongwith the cleaner. This accident was also witnessed by Chhottu Ram, chowkidar of the College, referred to above. The police were informed and Rohtas was then removed to the Medical College Hospital, Rohtak where he died a few hours later. The driver of the truck was arrested by the police some three days later.

The plea put forth by Randhir Singh, the driver of the truck, on the other hand, was that the cart was coming on the wrong side of the road and the driver thereof was perhaps sleeping. The presence of Parichant at the time of the incident was denied. According to him he was driving the truck on the correct side of the road. He blew the horn and also gave the light signal and slowed down the truck to a speed of 30 kms. per hour. The camel, however, bolted as the truck came near and the accident, thus, took place due to the negligence of the deceased in not controlling the camel.

It was also stated by Randhir Singh in his written statement that he reported the matter to the police and it was after a long enquiry that the identity of the deceased could be established. A constable then went and called Parichant and the police thereafter distorted the facts. It was, thus, his case that the claimants were not entitled to any compensation.

The owner of the truck and the insurance company thereof also took the stand that the accident had occurred due to the negligence of the deceased and the claimants were not, thus, entitled to any compensation.

Turning now to the evidence on record, the claimants examined AW 14 Parichant, the brother of Rohtas deceased and AW 13 Chhottu Ram chowkidar as the eye-witnesses to the occurrence. It was the testimony of both these witnesses that the camel cart was on the left band kacha portion of the road when the truck came from the opposite direction at a very high speed and dashed into it by going on the wrong side of the road. It was further their testimony that after this accident, Chhottu rang up the police station from the college and the police then came to the spot and recorded their statements.

There are also on record photographs of the scene of the accident, these photographs being Exs. AW11/1-4 and also Exs. R.1 to R. 4 which were brought on record by the other side. AW 11 constable Kamlesh Kumar deposed that he had taken the photographs AW11/1-4. According to him, the truck and the cart were standing on the right side of the road and consequently the accident had taken place on that side.

The only witness examined on behalf of the owner of the truck was RW 3 Randhir Singh, the driver of the truck involved in the accident. His testimony was that when this truck reached near the camel cart, the camel got scared and went out of control and struck against the truck. There were three or four camel carts coming from the same side some distance away. The persons on these carts raised an alarm to catch him an do (sic) of fear he ran away leaving his truk there. He denied that the truck had been driven by him rashly or negligently.

In seeking to assail the finding of the Tribunal with regard to negligence, Mr. L.M. Suri, Learned Counsel for the Respondents--the owner of the truck and the insurance company--sought to contend that the accident in this case had not been witnessed by either AW 13 Chhottu Ram or AW 14 Parichant, the brother of Rohtas deceased. He sought in this behalf to lay great stress upon the fact that both these witnesses had in their testimony deposed that after the accident the truck was driven away by the driver thereof.

He pointed out that the evidence on record clearly establishes the fact that the truck was in no condition to be moved. He referred in this behalf to the testimony of AW 10 Sita Ram, motor mechanic. Sita Ram had stated that as the front portion of the truck was broken it could not be started. Counsel, thus, contended that this statement of Chhottu Ram and Parichant clearly belied their presence at the time of the incident.

Mr. L.M. Suri next referred to the statement of AW 13, Chhottu Ram that the truck had not got down to the kacha portion of the road and there was, therefore, no question of any dust being raised thereby, his contention being that this statement went counter to the case of the claimants that the camel cart was on the kacha portion of the road and the truck had hit against it there.

Finally, the photographs Exs. AW 11/1-4 were adverted to with a view to show that the truck and the cart were on the left side of the road implying thereby that when the accident took place, the truck had not gone to the wrong side of the road. It was the contention of Mr. Suri that this was at any rate a case of contributory negligence with the deceased being equally to blame for the accident as the truck driver.

In dealing with the contentions raised it must be remarked at the very outset that the presence of Chhottu Ram at the time of the incident does, indeed, have a ring of plausibility keeping in view of the fact that he was the chowkidar of the College in front of which the accident had taken place. His presence there, at that time would, thus, stand explained thereby. Further he has not been shown to be in any manner connected with the deceased or interested in the claimants. It is also in evidence that the police reached the spot soon after the incident and the first information report was recorded on the statement of Chhottu Ram. A reading of the contents of this report would show that the version of the accident as given therein is in consonance with the testimony of Chhottu Ram and also Parichant these circumstances clearly support the presence of both these witnesses at the spot at the time of the accident and the infirmities as pointed out in their evidence by the counsel for the Appellants have, thus, to be considered in this back-ground.

It stands amply established from the evidence on record that immediately after the accident, both the driver and the conductor of the truck ran away. The statement of Chhottu Ram and Parichant that the truck had been taken away from the place of accident cannot obviously be accepted in the face of the testimony of the motor mechanic that it was not in a fit condition to be started. It would appear, however, that Chhottu Ram and Parichant may have stated in error that the truck was taken away instead of saying that the truck driver had run away. This wrong statement, in the circumstances, cannot by itself be taken to detract from their presence at the time of the incident.

As regards the statement of Chhottu Ram that the truck did not get down on the kacha part of the road, this was stated by him while answering the question whether any dust had been raised by the truck before the accident. No such statement was made by him with reference to the truck hitting against the camel cart.

Adverting to the photographs Exs. AW11/1-4, on first impressions it does, indeed, appear that the truck was on its correct side of the road but a closer scrutiny would show that it is on the right of the markings in the middle of the road indicating clearly thereby that the truck was standing on the right side of the road. In this behalf it is also relevant to recall the statement of the photographer AW11 Kamlesh Kumar which was not challenged in cross-examination that the truck was standing on the right side of the road. Further it would be noted that all the damages to the truck was on the right side thereof which is again a pointer to the cart being on its correct side of the road and that the truck had hit into the cart which was coming on its right hand side.

The version that the camel bolted is patently improbable. If the deceased had been in this business for years, camels would not bolt on merely seeing a truck approach.

It is also pertinent to note that Randhir Singh, the driver of the truck, ran away immediately after the accident. If the accident had not taken place due to his own fault, there was clearly no occasion for him to run away and what is more it was three days thereafter that he could be apprehended. Further, in his testimony he did not conform to the version set out in his written statement as he stated that he did not remember if he had got it recorded in his written statement that he had reported the accident to the police and it was after a long enquiry that the identity of the deceased was established and it was a constable who had called Parichant from his house and then the police had distorted the facts of this case.

The material aspect of this case is that according to Randhir Singh himself he saw the camel cart from some distance. He did not speak of any obstruction between him and the camel cart at any stage. It was with him, therefore, that the opportunity lay of avoiding the accident and driving his truck with such care and caution that no harm was caused to anyone thereby.

Seen in the totality of the circumstances of the case and the evidence on record there can be no manner of doubt that this accident had taken place entirely due to the rash and negligent driving of Randhir Singh, the driver of the truck. The finding of the Tribunal on the question of negligence must accordingly be upheld and affirmed.

Turning to the matter relating to the quantum of the compensation that the claimants are entitled to, the evidence on record clearly brings forth the fact that Rohtas deceased used to ply his camel cart for hire and used to carry food grains from villages to mandis. This work by its very nature was seasonal. The witnesses examined on behalf of the claimants have all deposed that the earnings of the deceased were Rs. 50/- to Rs. 70/- per day. No accounts have been produced to corroborate this. It is also pertinent to note that it came in evidence that there were other persons in the village also plying camel carts in the same manner. None of such persons were examined with a view to show the amount that they earned or the deceased could be said to have earned in this business. The estimate of the income of the deceased as given by the witnesses examined can only be treated as a rough estimate by them of what his earnings must have been but no more. In this view of the matter, no exception can be taken to the finding of Tribunal that the income of Rohtas deceased was Rs. 500/- per month and on this basis the loss suffered by the claimants was at the rate of Rs. 250/- per month after also taking into account the expenses which the deceased must have incurred in the maintenance of the camel and the cart.

Applying the principles laid down by the Full Bench of our High Court in Lachman Singh v. Gurmit Kaur 1979 A.C.J. 170 (P. and H.) and the Division Bench in Asha Rani and Ors. v. Union of India 1983 A.C.J. 52 (P. and H.) the multiplier applicable in the present case would be sixteen keeping in view the fact that Rohtas deceased was 45 years of age at the time of his death and the Evocation which he was employed in, was one which he could carry on for another 20 to 25 years. He died leaving behind his widow aged 29 years and five minor children besides his old dependant father. Computed on this basis it must be held that the claimants are entitled to Rs. 48,000/- as compensation for the loss suffered by them, this compensation being computed as under:

Rs. 250/- �12�16=Rs. 48,000/- .

The Tribunal had also held the claimants entiled to Rs. 2,000/- as compensation for the loss of the camel killed in this accident. No challenge was made to this part of the award and consequently this too must be upheld and affirmed.

In the result, the claimants are held entitled to and are hereby awarded a sum of Rs. 50,000/- as compensation for the loss suffered by them. They shall in addition be entitled to 10% interest per annum thereon from the date of the application to the date of payment thereof. Out of the amount awarded, a sum of Rs. 4,000/- shall be paid to Nanak, father of Rohtas deceased and Rs. 24,000/- to his widow Raj Wati while the balance shall be payable in equal shares to her five children.

The award of the Motor Accidents Claims Tribunal is consequently modified to this extent. The appeal filed by the owner and the insurance company, is thus, partly accepted while that filed by the claimants is dismissed In the circumstances of the case there will be no order as to costs.