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Judgment
Harbans Lal, J.—As a result of collision between a station wagon and a bus, two persons died, two claim petitions filed by the legal representatives of each of the deceassed claiming compensation u/s 110A of the Motor Vehicles Act, (hereinafter called the Act). Third claim application was filed by Malkiat Singh, driver and owner of the station wagon, who had also sustained some injuries As all these three claim petitions related to one and the same accident they were conulidated(sic) and tried together. All the there(sic)petitions were dismissed by the Motor Accidents Claims Tribunals, Kapurthala (hereinafter called the tribunal) vide order dated December 21,(sic) 1972 F. A. O. Nos. . 15 of 1972 has been filed by Sukhnandan Kaur and three minor children which arises out of the death of Ripudmn Singh, F. A O No. 218(sic) 1972, has been filed by the legal representatives of Harnam Singh, deceased. Both these appeals will be disposed of by this judgment as all questions of fact and law relate to the same accident and arises out of the same judgment of the tribunal.
The fact, briefly, are that on January 23, 1904(sic) at about 12. 15 P. M Ripudman Singh and Harnam Singh, deceased, were travelling by station wagon, No. PNJ. 629 (hereinafter called the station wagon) driven by Malkiat Singh, from Kapurthala to Bassi. Near village Talwara Model Town, Prince, bus No. PN-438(sic), (hereinafter called the bus) driven by Tulsi Ram, came from the opposite side. There was a collision between these two vehicles as a result of which, the said Ripud man Singh and Harnam Singh sustained serious injuries and died. According to Dr. R. S. Bedi, A. W. 7, who conducted the Post Mortem on the dead body of ipudman(sic) Singh on January 27, 1967, the cause of death was shock and haemorrhage due to injury to the spinal cord and fracture of the fourth cervical vertebra. The injuries were stated to be sufficient to cause death in the ordinary course of nature. Post Mortem on the dead body of Harnam Singh was performed by Dr. M L Sethi, A, W. 9/A, the cause of death was shock and haemorrhage. According to Dr. R. S. Pedi, who examined the injuries on Malkiat Singh, driver of the Station wogon, the victim had sustained four injuries on his person. The first information report, Exhibit A.W. 12/B, was recorded by A. S. I. Ravati Singh, A. W. 12 in Police Station Bholath on the basis of the statement of Malkiat Singh, driver. Regarding the fatal accident of Ripudaman Singh, his legal representatives claimed Rs. 1,50,000/- as compensation. The legal representatives of Harnam Singh injured, in his petition claimed Rs. 50, 000/- as damages.
The first two claim petitions were contested by the insurer of the two vehicles as well as the owner and the driver of the same. The third claim petition by Malkiat Singh, was contested by the insurer, the driver and the owner of the bus. It was denied if any of the vehicles was liable for the fatal accident due to any rash or negligent driving. In view of the pleading of the parties, the following issues were framed,
Was the accident due to any negligent act on the part of the driver of the vehicle, No. PNJ-6299 or that of the driver of vehicle No. PND 438 or that of both the drivers and with what effect ?
What is the quantum of compensation due, if any, and from whom to whom ?
Are the Insurance companies not liable for the objections taken in the written statement ?
3A. Has this tribunal no jurisdiction to award compensation in respect of damage to the property ?
Relief.
According to the findings of the tribunal, the fault lay with the driver of the station wagon for the accident and not with the driver of the bus. However, no compensation was granted against any of the vehicles and all the three claim petitions were dismissed, by the tribunal under the errroneous impression that the legal representatives of the two deceased in their claim petitions had claimed damages against the driver and the owner of the bus, and not against the driver and the owner of the station wagon. However, a perusal of their claim petitions makes it evident that in the claim petitions, it was clearly averred that the drivers of both the station wagon and the bus were responsible for the fatal accident as a result of their rash and negligent driving and the damages were thus claimed against both of them. Issue No I is also so framed.
According to the learned Counsel for the Appellants, it is a clear case of composite negligence and the drivers of both the vehicles were joint tortfeasers.(sic) Issue No, 1 is also quite comprehensive and has a reference to the negligence of the drivers of both the vehicles.
The evidence recording the accident comprises of the statements of Hari Singh, A.W. 1, Darshan Singh Josh, Advocate, A. W. 2, Charan Singh A.W. 3, Malkiat Singh. A.W. 15 driver of the station wagon as well as that of A S I. Kavail Singh, A W. 12, who recorded the first information report, Exhibit A.W. 12/B and Surjit Singh. R W. 2, mechanic. On behalf of the Respondents, only Tulsi Ram. driver of the bus was produced. According to Hari Singh, A W., he was travelling in the bus which was being driven by Tulsi Ram, driver. The bus was going from Bholath to Kapurthala. Near village Talwara Model Town, at about 12.30 P.M., a station wagon was coming from the opposite side. The bus was going at a first speed at about 50 miles per hour at the time of its collision with the station wagon. Darshan Singh Josh Advocate, A W, was also in the same bus. The station wagon was going on its left side. The accident took place as a result of the head on collision between the two vehicles as a consequence of which, Parduman Singh and Harnam Singh (now deceased) who were travelling in the station wagon sustained fatal injuries. The driver of the station wagon also sustained some injuries. According to his further version, one District Inspector of Police of Kapurthala was also in the bus who, along with Darshan Singh Josh, Advocate, A.W., removed the injured to the hospital. When questioned about the speed of the bus, he categorically stated that the needle of the speedometer disclosed that the speed was between 50 and 52 miles par hour. According to him, he had not heard any sound of the blowing of the horn. At the time of the accident, according to the witness, the station wagon was on the metalled road on the left side and the bus partly on the cutcha portion and partly on the metalled road. According to the deposition of Darshan Singh Josh, A.W., who was practising as an Advocate at Kapurthala, the speed of the bus was 40 miles per hour. According to him, the bus was on the wrong side and the station wagon was on the correct side. He had accompanied the injured to the hospital According to him, the first information report, Exhibit A.W. 12/8, had been lodged by Malkiat Singh, A.W., driver of the station wagon, but his own statements was also recorded by the Police the same day. In cross-examination, he stated that he had heard the sound of the horn of the station wagon at a distance of about 50 or 60 yards from the place of accident. However, he could not give the speed of the station wagon. According to his further verson one wheel of the station wagon was on the cutcha road and the remaining portion was on the metalled road. At the time of the accident, the bus went slightly to the off side. He could not exactiy tell if some other bus had also crossed them about 20 yards ahead from the place of the accident. The witness categorically stated that the front centre of the bus had struck against the right side front of the station wsgou. The statement of Charan Singh, A.W. 3 may not be adverted to as his presence was not mentioned by Hari Singh, A W., nor was he mentioned as one of the persons present at the spot in the first information report, Exhibit A W. 12/B, which, in fact, w-6 the earliest version given by Malkiat Singh, A.W., the driver of the station wagon. Malkiat Singh, A.W., the driver and also the owns? of the station wagon obviously tried to give the statement in a manner which would absolve him of all liability of the accident. According to his deposition in the Court, on seeing the coming of the bus from the opposite direction, he took his station wogon to the extreme left side outside the metalled portion of the road and even stopoed the same The has was coming it a high speed and struck against his vehicle which resulted in injuries on his person also besides the fatal injures on Harnam Singh and Ripudaman singh, who were sittinginm his station wagon. He even admitted the presence of Darshan Singh and Hari Singh, A. Ws , at the time of the accident. In his examination in-chief, ho has claimed compensation, for the injuries on his person. When he was confronted with version given in the first irformation report, Exhibit A W. 12/B, he admitted that in the said first information report, he had not mentioned the fact that he had stopped his station wagon on the cutcha partion(sic) of the road. In the said report, he had given the version that his station wagon was in the middle of the pucka portion of the road and that Another bus was also going ahead of the station wagon which crossed the bus of Tulsi Ram, Respondent before the accident. This revision was denied by the witness when confronted with the same However, the version in the first information report being the earliest one, when Malkiat Singh, A.W , had no time to concoct a story to save his skin, has to be given more credence. According to A. S.I , Revail Singh, A W , he had recorded the first information repot as given by Malkiat Singh, A W. He further stated in cross-examination, the cutcha portion of the road had some dust on it and that at the place of occurrence the road was only 10 feet wide. According to Tulsi Ram, the driver of the bus, another bus was coming from the opposite direction, that is, from the direction of the station wagon. On seeing the same, he is alleged to have taken his bus towards the left side. As the on coming bus crossed his bus, there was a cloud of dust. Consequently, he stopped his bus. The said bus was followed by the station wagon. According to his further version, it was the station wagon which struck against his bus on the left side when it was stationary. There was a cloud of dust at the time of the collision and as such, there was no visibility. According to this witness, as a result of the impact, the head light of the left side of the bus was broken and so was the front left glass. According to the statement of Surjit Singh, R. W. 2, and his report, Exhibit R.W. 2/A, after the inspection of the damage caused to both the vehicles, the, front portion of both the vehicles had been damaged which clearly indicated that there was a head-on collision between the two vehicles.
After a close perusal of the above evidence, the conclusion is inescapable that before the actual accident took place, another bus was going ahead of the station wagon in the same direction and had crossed the bus, in question, before the two vehicles collided against each other. As the road was only ten feet wide, the two bus, at the time of crossing were bound to be on some part of the cutcha portion of the road and consequently, a good deal of oust must have been raised which in turn was bound to reduce the visibility(sic) As the drivers of the bus in question on the one hand and the station wagon on the other, did not discharge their duty in stopping their respective vechicles so as to allow the dust to subside and getting an opportunity to pass the vehicles safely but neligently and rashly brought their respective vehicles to the middle of the road and the inevitable accident took place leading to the unfortunate and tragic deaths of two persons sitting in the station wagon. The two essential facts which provide incontrovertible clue to to the nature and cause of the accident, find place in the earliest version, us embodied in the first information report. Exhibit A W. 12/B, namely, that the accident bad taken place in be middle of the road and that one bus ahead of the station wagon had crossed the bus in question, at the time of the accident. The accident could not take place in the middle of the road unless both the vehicles after the crossing of the bus swerved to the wrong side in their anxiety to pass the other vehicle in haste. In these circumstances, the conclusion is inevitable that the drivers of both the bus and the sattion wagon were guilty of rash negligent driving and had not kept to the left fide of the road to such an extent which the situation demanded. Thus, both the drivers were joint tortfeasers and a clear case of composite negligence and liability is made out It has come in the evidence of the investigation officer that the site plan and photographs had been prepared. This documentary evidence, if produced on the record would have been of great help in arriving at the correct decision However, from the evidence adduced on both sides, this is the only conclusion possible.
So far as the compensation to which the claimants are entitled is concerned the evidence relating to the two claim petitions may be considered seperately.
According to Dr. R.S. Bedi, A.W , Ripudman Singh was 45 years of age at the time of his death by accident According to his widow, Shrimati Sukhnandan Kaur, Appellant, and Darshan Singh Josh, Advoca:e, A. W , his age was about 40 years. As any entry of the birth register or any other documentary evidence was not produced, the tribunal determined the age of Ripudman Singh, deceased, as 43 years at the same(sic) of the accident and further, in view of the average span of life of healthy persons in India, it was further held that the deceased, if his life had not been prematurely terminated by accident, was expected to live up to the age of 70 years. This finding of fact has not been seriously challenged on behalf of the Respondents. According to the deposition of Hari Singh, A.W , and Hari Raj A W.4, Ripudman Singh. deceased, was earning about Rs. 500/ per month. According to Sukbjit Singh, A. W 5., the deceased was carrying on the business as contractor and used to supply articles to Sainik School, on contract basis. In the claim petition also, Rs. 500/- per month were aversed as the monthly income of the deceased. The Tribunal from the evidence on the record, concluded that the deceased earning about Rs 40/ per month from all sources. The deceased has left one widow, one minor-daughter and two minor sons. According to the tribunal, the deceased was expected to spend about Rs. 150/- per month on his own person and the renaming amount of Rs. 250/- was likely to be spent on the maintenance of the Claimants. These findings are based on the assessment of evidence not which cannot be held to be in any manner vitiated or perverse No. serious challenge is made to the same I, there fore agree with the conclusion and (sic) that the annual dependency of the claimants was Rs. 3,000/. At the time of the accident, Shrirmati Sukhnandan Kaur, the widow of Ripudman Singh, was 33 years of age. His minor daughter Manjit Kaur was aged 13 years and his minor son, Opinder Singh was aged 12 years. All the claimants were quite healthy. In view of the birth of the children, the widow was not likely to re-marry, keeping in view the traditions of the Indian society. In view of the good health of the deceased his income was also likely to go up in due course of time in the facts and circumstances of the case, for the purpose of arriving at the correct figure of damages, I consider ten to be a suitable multiplier. The total amount of compensation on this basis to which the claimants of Ripudman Singh, deceased, are entitled to, comes to Rs. 30,000/-.
Next comes the case of Harnam Singh, deceased. According to the deposition of Charan Singh , A. W., Kartar Singh, A. W. 10, and Harnam Kaur, A W. 13, widow of Harnam Singh, deceased, the age of the deceased was between 40 and 42 years. In view of the same, the age of the deceased, at the time of the accident was correctly determined at 40 years. According to the statment of Harnam Kaur, A W , the deceased was earning Rs. 40 to 50 per day from his occupation as an engine repairer. According to the averment in the claim petition, the deceased was an agriculturist and was earning Rs. 500/-per month as such it was admitted by Harnam Kaur. A. W., that no income tax was being paid by the deceased. The tribunal, in view of this evidence was as of the view that the monthly income of the deceased, could not be more than Rs. 300/ per month and that one third of the tame the deceased was likely to spend on himself and the remaining two-third on his family which comprises of his wife and threee minor daughters and one son. Two major daughters had been already married As the deceased was a healthy person his life expectancy was also assessed at 70 years and thus the deceased was expected to live for 0 years more but for the fatal accident The age of the widow, Harnam Kaur, A. W , was stated to be 30 years. The three minor daughters was aged 12 years, 10 years and 7 years, respectively. The annual dependency of the claimants was correctly assessed at Rs. 25, 722/-, at the rate af Rs. 200/- per month. In this ease also the widow Harnam Kaur, A. W. it not likely to re marry in view of the children born to nor before the accident. In the present case also, ten will be a suitable multiplier to arrive at the correct amount of compensation to meet the ends of justice. It is thus held that Harnam Kaur and her monor children arc entitled to Rs. 24,000/-as compensation.
It was contended on behalf of the Respondents, that even in case of composite negligence of the drivers of the two vehicles, the blame attributable to each of them should be apportioned for the purpose of determining the liability of each of them. It was held by a Division Bench of this Court in Parsani Devi v. The State of Haryana (1977) 75 P.L.R. 811, that in case of composite negligence the drivers of both the vehicles are jointly and severally liable for the whole loss and the claimants are entitled to recover the compensation from any or both of them. In case the compensation is recovered from one of the joint tortfeasors, he can seek his remeady to be re umbursed from the other. The ratio of the decision of the Full Bench of the Assam High Court as reported in Hira Devi v. Shaba Kanti Devi 1977 A. C. J. 293, is also to the same effect. Therein it was held that composite negligence cannot be equated with contributory negligence so as to apportion the ratio of negligence between the drivers of the two vehicles.
It was then contended by the learned Counsel for the insurer of the station wagon that Malkiat Singh owner and the driver of the station wagon had been given up as unnecessary by the claimants Appellants in both the appeals, vide order dated September 8(sic) 1973 in F A.O. No 115 of 1973 and dated February 7, 1974, in F A O No. 118 of 1972. In view of the same, it was urged, that there can be no award made against Malkiat Singh and at a consequence, against the insurer of the station wagon. There can be no dispute with the principle of law as contained in Section 96 of the Act and also as laid down in Alwar Motor Association (Private) Ltd., and Anr. v. Hazari Lal (1964) 66 P.L.R. 804 that unless the driver and the owner of the vehicle is held liable, the insurer of the said vehicle cannot be fastened with any liability.
In view of the above discussion, both the appeals are allowed with costs and it is held that in F.A.O. No. 115 of 1972, the claimants Appellants of Ripudman Singh, deceased, will be entitled to a total compensation of Rs. 30,000/- from Respondents Nos. 1, 2 and 3. The claimants will be also entitled to interest at the rate of 4 per cent, per annum till the payment on the amount so awarded from the date of the claim petition.
In F.A.O No. 118 of 1972, Harnam Kaur, widow of Harnam Singh, and her children will be entitled to a total compensation of Rs. 24,000/- from Respondents Nos. 1, 2 and 3, alongwith interest at the rate of 4 per cent per Annum till payment from the date of the claim petition Respondents Nos 1 and 2. will be jointly and severally liable. The total liability of Respondent No. 3, the insurer of the bus, with regard to both the claims will be Rs. 20,001/- in view of the assured liability and the claimants in both the claim petitions/appeals will be entitled to recover the compensation from the insurer in proportion of the two awards. Counsel fee in each appeal is fixed at Rs. 290/-.