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2003 DIGILAW 466 (MP)

RAM KUWAR SARATHE v. HARI SINGH RAJPUT

2003-03-27

BHAWANI SINGH, SHANTANU KEMKAR

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BHAWANI SINGH, C. J. ( 1 ) THIS appeal is directed against the award of the Motor accidents Claims Tribunal, Gadarwara in claim Case No. 11 of 1992; decided on 13. 2. 1997. ( 2 ) SHORTLY stated, accident took place on 3. 12. 1991 when minibus No. CIK 8509 owned and driven by Dilip Singh Rajput (dead through legal heir Hari Singh Rajput) met with accident at Omar Bridge, nandner, Gadarwara, by falling into river, resulting in death of 8 persons and injuries to others. Puranlal Sarathe is one of the persons who died in this accident. He was barber at Badeshwar, Kareli (Gadarwara), earning Rs. 1,000 per month. Allegation is that accident took place due to rash and negligent driving of the bus. Total compensation of Rs. 8,45,000 is claimed. ( 3 ) RESPONDENT alleges that he is not the sole heir of Dilip Singh Rajput. He denies the accident and disputes income of the deceased. He also alleges that the deceased was 75 years old, therefore, claim is liable to be dismissed. Accordingly, claim has been dismissed on the ground that driving of bus rashly and negligently has not been proved nor it was proved that bus was being driven by Dilip Singh Rajput and deceased travelling therein. The claimants have been paid Rs. 25,000 by way of 'no fault liability'. ( 4 ) THROUGH this appeal, award has been challenged. It is submitted by Mr. Devesh khatri that the Claims Tribunal has not examined and appreciated evidence properly, therefore, wrong conclusions have been drawn. As a matter of fact, it has clearly been established that the deceased was a barber, travelling by the bus which met with accident, a number of persons died, deceased being one of them and the bus was being driven by Dilip Singh Rajput. Mr. Hemant Namdeo, learned counsel for respondent submits that evidence does not establish that the bus was being driven by Dilip Singh Rajput nor there is evidence to establish that the deceased died in this accident. Therefore, it is necessary to decide whether accident took place, if so, whether the deceased was travelling by this bus and whether it was being driven by dilip Singh Rajput. We find no difficulty in deciding these questions on the available evidence, if examined and analysed carefully. Therefore, it is necessary to decide whether accident took place, if so, whether the deceased was travelling by this bus and whether it was being driven by dilip Singh Rajput. We find no difficulty in deciding these questions on the available evidence, if examined and analysed carefully. ( 5 ) THERE is no dispute that the offending vehicle was owned by Dilip Singh rajput. Question is whether Dilip Singh rajput was driving that vehicle on the date of accident? There is no dispute that Dilip singh Rajput also died in this accident, as per police report. There is no evidence to the contrary from respondent. This means, dilip Singh Rajput was in the bus, obviously he was driving the bus since there is no evidence pointing out that the bus was being driven by some other person. ( 6 ) AS per police report, the deceased also died in the accident. There is no evidence that deceased is alive. The deceased is one of many persons who died in the said accident. Report of the police also names the deceased as one of the dead ones apart from Dilip Singh Rajput. Therefore, it is held that the deceased died in this accident which was caused by rash and negligent driving of the bus by Dilip Singh Rajput. Mr. Namdeo, learned counsel for respondent, submits that how accident took place has not been established. There is no force in this submission. There is no dispute about the taking place of accident. How it took place, the claimants cannot state. In such circumstances, principle of res ipsa loquitur applies and burden to prove how accident took place is shifted on the other side. Respondent denies taking place of accident but it has taken place and fails to explain how it took place. Consequently, we hold that the deceased died in this accident as a result of rash and negligent driving of the bus by Dilip Singh Rajput. Conclusion of the Claims Tribunal to the contrary is irrational and unsustainable, therefore, set aside. ( 7 ) NEXT question is determination of compensation on which counsel for parties have serious dispute. Mr. Devesh Khatri submits that the claimants have established that the deceased was earning Rs. 1,200 per month. That apart, he was attending to customary duties in the area thereby earning more. Mr. ( 7 ) NEXT question is determination of compensation on which counsel for parties have serious dispute. Mr. Devesh Khatri submits that the claimants have established that the deceased was earning Rs. 1,200 per month. That apart, he was attending to customary duties in the area thereby earning more. Mr. Namdeo submits that in the claim petition, income of the deceased is rs. 1,000 per month. May be so, but evidence clearly points out that the deceased was earning Rs. 1,200 per month. We may accept this statement but do not include income through customary services since there is no positive evidence on this aspect. Accordingly, after deducting 1/3 rd towards personal expenditure, yearly dependency comes to Rs. 9,600 and multiplied by 13, rs. 1,24,800 plus Rs. 16,500 (Rs. 7,000 for loss of expectancy of life, Rs. 5,000 for loss of consortium to wife, Rs. 2,500 for loss to the estate and Rs. 2,000 as funeral expenses) = Rs. 1,41,300. Claimants are entitled to compensation of Rs. 1,41,300, payable by Hari Singh Rajput. ( 8 ) AT this stage, Mr. Namdeo submits that Dilip Singh Rajput left behind not only Hari Singh Rajput but also wife and three daughters, therefore, all the legal heirs should have been made parties in the case since all of them have to bear the debts incurred by Dilip Singh Rajput. There is no dispute about Hari Singh Rajput being only male member of the family after death of Dilip Singh Rajput. He is presently holding estate of the deceased. He took the bus on supartnama. The bus was taken into possession by the police in connection with criminal case registered with respect to this accident. Consequently, we find no infirmity in the impleadment of parties and the submission is rejected. ( 9 ) CONSEQUENTLY, the appeal is allowed. Award of Motor Accidents Claims Tribunal dated 13. 2. 1997 is set aside. Claimants are held entitled to the compensation of rs. 1,41,300 payable within two months with interest at the rate of 12 per cent per annum from the date of application till 31. 12. 2002, thereafter it shall be payable at the rate of 9 per cent per annum. Costs on parties. Appeal allowed. .