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2000 DIGILAW 1175 (MP)

JASWINDER KAUR v. RICHHPAL SINGH

2000-10-31

R.D.VYAS, SHAMBHOO SINGH

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SHAMBHOO SINGH, J. ( 1 ) THIS appeal is directed by the claimants against the award dated 31. 3. 1998 passed by the 2nd Addl. Member, M. A. C. T. , Indore, in Claim Case no. 184 of 1997 whereby the claim application of the claimants was dismissed. ( 2 ) THE case of the appellants was that on 10. 1. 1996 the deceased Gurupal Singh, husband of the appellant No. 1, father of the appellant No. 2 and son of appellant no. 3, driving the truck No. MIF 0195 belonging to the respondent No. 1 and insured with the respondent No. 2, went 15 km. away from Hindoli, District Bundi (Rajasthan), truck No. MP 09-K 9351, belonging to the respondent No. 3 and insured with the respondent No. 4, came from the opposite direction in a rash and negligent manner and dashed against the truck No. MIF 0195 as a result of which Gurupal singh sustained injuries and died on the spot. The deceased was aged about 29 years and was earning Rs. 3,500 per month. The appellants filed claim application seeking compensation of Rs. 5,62,000. The respondent no. 1, the owner of the truck No. MIF 0195 admitted that the deceased on the date of accident, i. e. , 10. 1. 96 was driving his truck and near Hindoli, truck No. MP 09-K 9351 came from opposite direction, driven in a rash and negligent manner and dashed against the truck No. MIF 0195 as a result of which Gurupal Singh died. He had also admitted that he was paying rs. 3,500 per month to the deceased. The respondent No. 2, insurer of truck No. MIF 0195 did not deny that the deceased was driving this truck and truck No. MP 09-K 9351 came from opposite direction driven in a rash and negligent manner and dashed against the truck No. MIF 0195. The respondent No. 2 averred that as the accident occurred due to rash and negligent driving of truck No. MP 09-K 9351, therefore, it was not liable to pay compensation. Respondent no. 3, the owner of the truck No. MP 09-K 9351 remained absent and proceeded ex pane. The respondent No. 2 averred that as the accident occurred due to rash and negligent driving of truck No. MP 09-K 9351, therefore, it was not liable to pay compensation. Respondent no. 3, the owner of the truck No. MP 09-K 9351 remained absent and proceeded ex pane. The respondent No. 4, the insurer of the truck No. MP 09-K 9351 resisted the claim and averred that this accident occurred due to rash and negligent driving of the truck No. MIF 0195, therefore, it was not liable to pay compensation. On appreciation of evidence the learned tribunal held that it was not proved that the accident occurred due to the rash and negligent driving of truck No. MP 09-K 9351 and dismissed the claim application. Hence, this appeal by the claimants. ( 3 ) MR. S. S. Chawla, the learned counsel for the appellants, submitted that in truck no. MIF 0195 one passenger Shivsingh was travelling and he also died along with gurupal Singh and his L. Rs. filed Claim case No. 63 of 1997 in this very Tribunal and in that case the Tribunal held that this accident occurred due to the rash and negligent driving of the truck No. MP 09-K 9351 and it dashed against the truck No. MIF 0195 and awarded compensation of rs. 1,20,000. He, therefore, submitted that this case be remanded to the Tribunal so that he may examine Dalpatsingh, Sub-inspector of Police, to prove the accident. Mr. Dandwate, the learned counsel for the respondent No. 4, opposed the prayer and submitted that the appellants-claimants themselves closed their evidence and under such circumstances there is no reason to remand the case. On merits he supported the impugned award. ( 4 ) WE considered the arguments advanced by learned counsel for both sides and perused the record. Order-sheet dated 26. 2. 1998 shows that on this date the appellant no. 1 Jaswinder Kaur was examined and her advocate Mr. Chawla, learned counsel prayed for adjournment for producing the remaining witnesses. His prayer was allowed and the case was fixed on 20. 3. 98. On 20. 3. 1998 Mr. Chawla closed the evidence of the appellants and the non-applicants prayed for time to produce their evidence and time was granted and on the next date no evidence was produced by the respondents and they too closed their evidence. His prayer was allowed and the case was fixed on 20. 3. 98. On 20. 3. 1998 Mr. Chawla closed the evidence of the appellants and the non-applicants prayed for time to produce their evidence and time was granted and on the next date no evidence was produced by the respondents and they too closed their evidence. This order-sheet of the Tribunal clearly shows that Mr. S. S. Chawla voluntarily closed the evidence of the claimants. Under such circumstances, we find no reason to remand the case for examination of other witnesses. ( 5 ) IN our opinion, in peculiar facts and circumstances of the case, the learned Tribunal has committed error in dismissing the claim application of the appellants. As stated earlier, in this case, it was admitted that on 10. 1. 1996, near P. S. Hindoli, truck mif 0195 and truck No. MP 09-K 9361 collided with each other wherein Gurupal singh, the driver of truck No. MIF 0195 was killed. Jaswinder Kaur also deposed that her husband was driving the truck of richhpal Singh and other truck dashed against it as a result of which her husband met with death. Exh. P-1 copy of the F. I. R. also supports her version. The respondents did not produce any evidence in rebuttal. It is true that no evidence of any eyewitness to the accident is available on record. In such a situation, where evidence is not available, the maxim res ipsa loquitur is applied. The claimants can prove the accident, but they cannot prove as to how the accident occurred. To avoid this hardship, the maxim res ipsa loquitur is applied, as the accident itself tells its own story. Under such circumstances, the burden shifts on the non-applicant to prove that accident did not occur due to rash and negligent driving of this vehicle, the accident occurred due to other reasons, unfortunately in this case the drivers of both vehicles died in this accident. The appellants did not examine the Investigating Officer who prepared the spot map of the accident. However, it cannot be disputed that if vehicles are driven carefully on road on their respective sides, they do not collide. The collision of the vehicles on public road at 7 a. m. , gives the inference that this accident occurred due to rash and negligent driving of one or both the vehicles. However, it cannot be disputed that if vehicles are driven carefully on road on their respective sides, they do not collide. The collision of the vehicles on public road at 7 a. m. , gives the inference that this accident occurred due to rash and negligent driving of one or both the vehicles. The deceased was driving the truck at the time of accident, therefore, this is a case of contributory negligence. We hold negligence of both the drivers of both vehicles 50:50. ( 6 ) THE learned Tribunal committed an error in dismissing the claim application of the appellants on the ground of nonavailability of the evidence. ( 7 ) IT has come in evidence of Jaswinder Kaur that her husband was employed as driver on the truck of Richhpal Singh. He was paying him Rs. 2,000 per month as salary and Rs. 1,500 per month as daily allowances. She has stated in her cross-examination that she did not know that daily allowance was paid to her husband, only when he was required to go out of his place of employment, therefore, payment of allowance depended on his going out of the place where he was engaged to work. It can be safely guessed that the deceased must be going out at least for one week in a month and must be receiving Rs. 400 per month as daily allowance. Thus, the monthly earning comes to Rs. 2,400. On deducting 1/3rd of it for personal expenses of the deceased, the dependency of the appellants comes to Rs. 1,600 per month and yearly Rs. 19,200. It has come in the evidence of Jaswinder Kaur that the age of her husband was 29 years. In view of this, we select multiplier of 18 and by multiplying it with the multiplicand, the amount of compensation comes to Rs. 3,45,600. The appellant is entitled to Rs. 5,000 for loss of consortium and love and affection and rs. 2,000 for funeral expenses. On addition of this amount, the compensation comes to Rs. 3,52,600 which is rounded up to rs. 3,53,000. As stated above, we have held the negligence of the deceased drivers of the trucks 50:50, therefore, half of this amount is deducted for contributory negligence of the deceased. Thus, the amount of compensation comes to Rs. 1,76,500. 2,000 for funeral expenses. On addition of this amount, the compensation comes to Rs. 3,52,600 which is rounded up to rs. 3,53,000. As stated above, we have held the negligence of the deceased drivers of the trucks 50:50, therefore, half of this amount is deducted for contributory negligence of the deceased. Thus, the amount of compensation comes to Rs. 1,76,500. ( 8 ) IN the result, the appeal is partly allowed and it is directed that the respondent nos. 3 and 4, owner and insurer of truck no. MP 09-K 9351 shall pay severally and jointly Rs. 1,76,500 to the claimants with interest at the rate of 12 per cent per annum from the date of filing of the claim application till realisation. Out of this amount rs. 30,000 with accrued interest be paid to the appellant No. 3, father of the deceased and rest of the amount be paid to the appellant Nos. 1 and 2 in equal share. Out of the share of appellant No. 1 Rs. 10,000 with accrued interest be paid to her and rest of the amount with accrued interest be deposited in maximum interest paying scheme in nationalised bank for a period of six years and in the like manner entire share of appellant No. 2 with accrued interest be deposited in maximum paying interest scheme in nationalised bank for a period of six years or till she becomes major, whichever is later. Out of the share of the appellant No. 3 Rs. 20,000 with accrued interest be deposited in the same way for a period of two years. There shall be no order as to costs. Appeal partly allowed. .