Judgment Dinesh Maheshwari, J.-Claim Application No. 54/1995 (Old No. 175/1988) filed on 012.1988 by the claimant appellants seeking compensation on account of death of Rajesh Singh Chouhan, aged 22 years, son of the appellants No. 1 and 2 and the brother of the appellant No. 3, in a vehicular accident on 02.06.1988, has been dismissed by the learned Judge, Motor Accidents Claims Tribunal (I), Jodhpur on 07.02.1997 with the finding that the claimants have failed to establish the occurrence due to rash and negligent driving by the driver of the vehicle in question. The claimants have, therefore, come up in appeal. 2. Brief facts relevant for the present appeal are that the claim application was submitted under Sections 110 and 92-A of the Motor Vehicles Act, 1939 on 012.1988 with the submissions that the deceased Rajesh Singh, son of the claimants No. 1 and 2 and brother of the claimant No. 3 was posted on election duty in Panchayat Elections from 28.05.1988 as a Home Guard. A truck of the non-applicant No. 2 Bhanwarlal was engaged in election duty for carrying the polling party and the non applicant No. 2 sent non-applicant No. 1 Lal Singh as a driver of the truck although he was having only a learning licence. On 01.06.1988 at about 11.45 PM the Pal Polling Booth Party with in charge Ganpatiola started from Jodhpur for Luni. At about 4,0 clock in the morning, the truck bearing registration No. RRQ 9135 reached a railway crossing at Jogion-ki-dhani near Luni and because of a dip at the crossing and rash and negligent driving by the driver non applicant No. 1, the vehicle took a jump and skidded towards left and when the said in charge Ganpatlal and Head Constable Jagir Singh questioned the manner of driving, the non-applicant No. 1 wholly negligently took a sharp turn to the right and the vehicle fell in a ditch. the occupants of the vehicle were thrown out and the head of the deceased Rajesh Singh got crushed beneath the tyre of the truck and he died on the spot. 3. the occupants of the vehicle were thrown out and the head of the deceased Rajesh Singh got crushed beneath the tyre of the truck and he died on the spot. 3. For quantification of the amount of compensation it was stated that the deceased was 22 years of age and was engaged in the business of photography and was a volunteer in the Home Guards duty and was, also carrying on private studies for better future but met with his untimely end in the accident that the deceased was earning Rs. 30-40 par day and was getting additional amount of Rs. 1,000/-per annum from Home Guard and he was contributing approximately Rs. 700-750/-per month for maintenance of the claimants No. 1 and 2 and he was also bearing the expenditure towards the social duties for his only sister, the claimant No. 3. 4. The claimants No. 1 and 2 pointed out that the deceased was their only son and the household expenditure was taken care of by his income. Stating an amount of Rs 2,23,512/-towards the loss of contribution and Rs. 1,00,000/-for the loss of love and affection, an amount of Rs. 3,23,512/-was claimed as compensation. It was also stated in the claim application that the applicants were entitled to an amount of Rs. 15,000/-as first mentioned compensation under Section 92-A of the Act of 1939. 5. Inthe claim application, the State of Rajasthan, the Director, Public Safety, the Deputy Commandant, Home Guards Training Center and the Commandant, Home Guards training Center were also impleaded as parties. These non-applicants No. 4 to 7 submitted a reply admitted the factum of accident and averred inter alia, that they had already made a payment of Rs. 11,200/-by different cheques as compensation under the Home Guards Act and the present claim for compensation against them was not maintainable. Non- applicant No. 3. The Oriental Insurance Company filed a separate reply denying the claim averments but admitted that vehicle RRQ 9135 was insured with it for the period 25.1988 to 25.1989. However, it was alleged that the driver was not having a valid licence at the time of accident and that no. information of accident was extended to the insurer and that there was violation of policy conditions. Non-applicants No. 1 and 2 driver and owner of the vehicle did not file any reply. 6. However, it was alleged that the driver was not having a valid licence at the time of accident and that no. information of accident was extended to the insurer and that there was violation of policy conditions. Non-applicants No. 1 and 2 driver and owner of the vehicle did not file any reply. 6. The record of the case shows that in this claim application filed as back as on 01.02.1988, the proceedings continued for service on the non- applicants and ultimately the notice on non-applicant No. 1, driver of the vehicle, was served by advertisement in newspaper and his service was ordered to have been completed only on 17.07.1995. Thereafter, the case was fixed on 05.09.1995 for framing of issues, but on that date, the Presiding Officer having been transferred, the case was adjourned to 110.1995. 7. On 110.1995 issues were framed and the case was fixed for applicants evidence on 112.1995 and it was also directed that on that date, arguments on application under Section 92-A of the Motor Vehicles Act would also be heard. 8. However, in the order-sheet dated 112.1995 only this much has been recorded that the evidence of the applicant was not present, one opportunity was sought and hence the case be adjourned to 02.02.1996. On this date, the statement of AW-1 Ratan Singh was recorded and for remaining evidence, the case was adjourned to 16.04.1996. The record shows that when the statement of Ratan Singh was recorded on 02.02.1996, he was cross-examined only on behalf of the non-applicants No. 4 to 7 but the learned Counsel for the insurer moved an application at 2:00 PM stating that on his appearance before the Tribunal at 1:15 PM , it was found that the statement of Ratan Singh had been concluded without cross-examination on his part and therefore, in the interest of justice, the witness was required to be recalled . On the margin of this application available at page B-25/2 of the record, the learned Judge of the Tribunal ordered that it was filed after fixing of the next date and, therefore, it be presented on the date of hearing with the file and a copy be given to the opposite party. 9. On the margin of this application available at page B-25/2 of the record, the learned Judge of the Tribunal ordered that it was filed after fixing of the next date and, therefore, it be presented on the date of hearing with the file and a copy be given to the opposite party. 9. On 16.04.1996, statements of other claimants Smt. Sugna and Smt. Bhanwari were recorded and it appears that further cross-examination of Ratan Singh by the insurer was also permitted as the same has also been recorded below the previous statement itself . 10. The order sheet dated 16.04.1996 shows that the claimants sough further time for evidence for which a last opportunity was granted and the case was adjourned to 13.05.1996 with the condition that on the evidence being not available on the next date, it would be deemed to be closed. No witness was present for the claimants on 13.05.1996 and, therefore, their evidence was closed and the case was adjourned to 09.05.1996 for the evidence of the non-applicants. The case was adjourned on 09.05.1996 granting an opportunity for evidence to the non-applicants and it was further adjourned on 20.07.1996 granting last opportunity. However on the next date, i.e., 26.08.1996, the Presiding Officer was not available and hence the case was adjourned to 21.09.1996. 10.11. On 21.09.1996, an application was submitted on behalf of the insurer to summon the non-applicants No. 1, 2, 4 and 5. The learned Judge found that no cause was shown for the non-applicants No. 2, 4, and 5 so far the non-applicant No. 1 driver was concerned, he was even otherwise served by way of substituted service and the non-applicant, if so desire, may produce him for evidence The case was adjourned to 10.1996 and on this date also an opportunity was granted to the non-applicant for evidence in the interest of justice and the case was adjourned to 011.1996 when yet another last chance was given to the non-applicant. An application was filed on 10.12.1996 for summoning R.T.O., Jodhpur but after an adjournment on 10.12.1996 for the Presiding Officer being on leave again an adjournment was sought on 13.01.1997 for arguments on application and for evidence. However, on the next date i.e., 24.01.1997, it was specifically given out on behalf of the non-applications that they were not interested in leading any evidence and then the case was fixed for final arguments. However, on the next date i.e., 24.01.1997, it was specifically given out on behalf of the non-applications that they were not interested in leading any evidence and then the case was fixed for final arguments. 112. The learned Judge Motor Accidents Claims Tribunal (I) Jodhpur has proceeded to dispose of the claim application by the award dated 07.02.1997. Issue No. 1 was framed in the case on the comprehensive question about the factum of accident, rash and negligent driving of the non-applicant No. 1 and death of Rajesh Singh in the accident. This issue has been decided by the learned Judge against the claimants on the consideration that all the three claimants were not able to depose anything about the cause of accident and they were not the eye witnesses to the accident, therefore, it was not established that the accident occurred due to rash and negligent driving by Lal Singh. For the purpose of quantification of the amount of compensation in issue No. 2, the learned Judge took contribution of the deceased at Rs. 7,200/-per annum and applying a multiplier of 18, arrived at a figure of Rs. 1,29,600/-towards pecuniary loss and adding other non-pecuniary loss of Rs. 15,000/-an amount of Rs. 1,44,600/-was calculated but held not to be payable on failure of the claimants to establish the necessary facts in issue No. 1. So far the valid driving license was concerned, in issue No. 3, it was observed that the claimants themselves stated that the driver was having learning license and the same did not amount to a valid driving license and, therefore, the violation of policy condition being clear, there was no liability of the insurer. The claim application was, therefore, ordered to be rejected The award dated 07.02.1997 has been assailed in this appeal on behalf of the claimants. 113. The claim application was, therefore, ordered to be rejected The award dated 07.02.1997 has been assailed in this appeal on behalf of the claimants. 113. Learned Counsel for the appellants has vehemently contended that the learned Judge of the Tribunal was in error in rejecting the entire claim altogether without affording proper evidence of the evidence to the applicants and without even considering the facts and the circumstances surrounding the case, that the learned Judge has failed to consider that the rules relating to evidence and proof as required in the civil cases are not as such applicable to a claim case on account of motor accident, that the learned Judge could have at least considered the case on the principles of res ipsa loquitor, and that the learned Judge was seriously in error in not even deciding the application moved under Section 92-A of the Act for the amount of compensation towards no fault liability. 14. Learned Counsel for the insurer has strenuously opposed the appeal with the submissions that when the appellants were absolutely negligent in prosecuting their case, the learned Judge of the Tribunal has not erred in rejecting the same for want of fundamental primary evidence. The learned Counsel also submitted that the appellants have chosen not to press for their claim for the amount of first mentioned compensation and the Tribunal has not erred in not awarding such compensation either. 15. Having given a thoughtful consideration to the rival submissions and having scanned through the entire record of the case, this Court is clearly of opinion that the impugned award dated 07.02.1997 cannot be sustained and the claim for compensation by the appellants deserves to be partly allowed. 16. The proceedings adopted in this case by the Tribunal fall short of the cause of justice and so also of the requirements of law. This claim application filed in the year 1988 remained pending for a long time for service on the non-applicants and ultimately the issues were framed only on 110.1995. However, on this date, the learned Judge of the Tribunal was aware of the fact that the prayer under Section 92-A of the Act of the 1939 was still pending consideration and the present one was a death case and the factum of the death in the accident involving the vehicle in question was indisputable. However, on this date, the learned Judge of the Tribunal was aware of the fact that the prayer under Section 92-A of the Act of the 1939 was still pending consideration and the present one was a death case and the factum of the death in the accident involving the vehicle in question was indisputable. Of course, the next date was fixed for hearing arguments in respect of this prayer under Section 92-A also but thereafter it seems that the learned Judge has chosen simply to ignore the said provision and the said prayer and instead the evidence of the claimant has been proceeded with and has been closed down in hot haste, although in this very haste, the learned Judge of course provided the insurer with a chance to cross-examine claimant Ratan Singh even after the cross- examination was closed. Thereafter the matter has been adjourned at least seven times for the evidence of the non-applicants and then the non-applicants expressed that they did not wish to lead any evidence. 17. In the case of the present nature where the claimant Ratan Singh who has shown himself to be a Chowkidar and having lost his only son, and who was admittedly not the eye witness to the accident, in the overall facts and circumstances of the case, the interest of justice would definitely have been served, firstly, if the learned Judge would have looked at the entitlement of the claimants of the amount of first mentioned compensation and the interest of justice would further have been served if proper opportunity of leading evidence for production of relevant documents and record and/ or witnesses was extended to the claimants and the same could have been done without any likelihood of any prejudice to the non-applicants. Moreover, the learned Judge has fallen in error in assuming that the real question in issue No. 1 was bound to be decided against the claimants for want of eye-witnesses and documentary evidence. This Court is of opinion that even if other evidence was not produced by the claimants, the same was not the end of the matter. The non-applicants have not produced any evidence at all and in the fact situation of the present case, the material on record itself is sufficient to return a finding on the liability of non-applicants in favour of the claimants. 18. The non-applicants have not produced any evidence at all and in the fact situation of the present case, the material on record itself is sufficient to return a finding on the liability of non-applicants in favour of the claimants. 18. Before dealing with the material on record, it shall be apposite to reproduce issue No. 1 and its consideration by the learned Judge in extenso. Issue No. 1 reads thus.- jk js^^¼1½ vk;k foi{kh la[;k&1 ykyflag ds }kjk fnukad 02-06-1988 dh 4 cts yq.kh ds ikl tksxh;kas dk MsYos QkVd ds vkxs okgu laj ykijokgh ls pykus ds ifj.kkeLo:i okgu [kM~[;k vkj-vkj-D;q-9135 xQyr vkSMksa esa fxj x;k ftlls e`rd jktskflag iq= jruflag dk flj mDr okgu ds Vk;jksa ds fups vkus ds dkj.k mldh e`R; q gks xbZ\** 19. The entire consideration on this issue by the learned Judge reads thus. ^^fook|d la[;k ¼1½% 7@ bl fook|d ds lcqr dk “kj izkFkhZ i{k ij gSA izkFkhZx.k dh vksj ls izkFkhZ lk{khx.k esa ls izkFkhZ jruflag us bl nq?kZqVuk esa vius iq= jktsk flag tks fd pquko Mq; Vh ds ckn fukku Vªd esa cSB dj ykSV jgk Fkk] rc mDr okgu ds myV tkus ls yw.kh xkao easjs Yos QkVd ds ikl mldh e`R;q gqbZ crk;k gSA nq?kZVuk ds le; ;g lk{kh lkFk gksuk vFkok ?kVuk dk p{ knqkhZ lk{kh gks] , slk tkfgj ugha gSA blh izdkj ,s-MCyq- 2 Jherh lqxu++ ,oe Jherh “aojh tks fd e`rd jktskflag dh dzaek% ekrk o cfgu gS ds lkiFk dFkuksa esa “h nq?kZVuk fdl izdkj ls gqbZ] ds lEcU/k esj ;g nksuksa gh lk{khx.k “h ?kVuk ds p{ kqa dksbZ dFku ugha gS vkSnkhZ lk{kh gksuk ugha ik; s tkrs gSA 8@ bl izdkj tkfgj gS fd izkFkhZx.k dh vksj ls ijhf {kr lk{khx.k us fdlh “h lk{kh us ;g ?kVuk fdl izdkj ls gqbZ] ds lEcU/k easdksbZ rF; ugha crk;k gSA vr% ;g lkfcr ugha gS fd ;g nq?kVZuk vizkFkhZ ykyflag ds }kjk okgu dks rsj ykijokgh ls pykus ds QyLo:i gqbZ gksA bu ifjfLFkfr;kas es t xfr vkSa bl fook|d dk fu.kZ; izkFkhZ i{k ds fo:) fd;k tkrk gSaA** 20. The considerations aforesaid remain absolutely cursory and the findings remain wholly perverse. The material directly available on record has not been considered nor even the principles of law applicable to the case have been considered. 21. The considerations aforesaid remain absolutely cursory and the findings remain wholly perverse. The material directly available on record has not been considered nor even the principles of law applicable to the case have been considered. 21. The claimants have specifically asserted the factum of accident in their application and so also the fact that the vehicle capsized because of rash and negligent driving by the non-applicant No. 1 and that deceased Rajesh was thrown out and got crushed under the tyres of the vehicle. The driver as well as owner of the vehicle did not file any reply. So far the insurer is concerned, it has also not specially denied the accident and death of Rajesh Singh except stating a general denial. However, the non-appliants No. 4 to 7 have submitted a separate reply and have admitted the fact that Rajesh Singh was a home guard and was on Panchayat Election duty and while returning from the election duty, he died because of the accident. The accident having taken place from the use of vehicle in question as averred in the claim application remains also a fact which has been categorically admitted by these non-applicants. It has also been stated in their reply that payments totaling to Rs. 11,200/-have been made to the claimants as compensation payable under the Home Guards Act and, therefore, the claim against the said non-applicants was not maintainable. 22. Of course, the claimants were not eye-witnesses but then Ratan Singh, claimant No. 1 has stated the basic facts that Rajesh Singh was on election duty as home guard and while returning from duty, the vehicle capsized near railway crossing and his son sustained head injuries. In his cross-examination by non-applicants No. 4 to 7, he has stated that the registration number of the vehicle has been given in the claim application but was not remembered by him. As noticed above, he was permitted to be cross-examined on 16.04.1996 by the insurer also and there is no suggestion in the cross examination that there was no such occurrence or that the claim was wrongly made against the impleaded owner, driver and insurer. 23. As noticed above, he was permitted to be cross-examined on 16.04.1996 by the insurer also and there is no suggestion in the cross examination that there was no such occurrence or that the claim was wrongly made against the impleaded owner, driver and insurer. 23. In view of undeniable position available on record, no denial by the owner or driver of the fundamental facts, categoric admission of non-applicants No. 4 to 7 and want of specific denial by the insurer coupled with the statement of Ratan Singh claimant, it is apparent that the fact that Rajesh Singh died because of the injuries sustained in the accident arising out of use of the vehicle in question when the vehicle capsized, is established . Thereafter, the onus shifted on the non-applicants if they wanted to dispute the fundamental facts. If the respondent insurer wanted to dispute, it was for the insurer firstly to seek a permission from the Tribunal to take other defences and then to lead specific evidence in this regard. The insurer was afforded umpteen number of opportunities by the Tribunal to lead evidence but the insurer chose not to lead any evidence and voluntarily closed the evidence on 24.01.1997. Therefore, the fundamental facts established by the claimants have remain uncontroverted and could not have been ignored by the learned Judge on mere consideration that claimants were not eye-witnesses and that nobody has deposed as to how the accident occurred, and therefore, it was not proved that the accident was a result of rash and negligent driving by Lal Singh. 24. Coming to the question of negligence, this Court is of opinion that when a running vehicle capsizes and turns turtle, the accident speaks for itself and more often than not, the principles of res ipsa loquitor not only apply but prove the negligence on the part of the user of the vehicle which results in tortious liability. The principles have been applied by this Court in the case of RSRTC vs. Pista Agarwal, 1985 RLR 134 and it has been held that for the claimants, it is sufficient to show that the accident happened and then it is for the defendant to show and prove as to how the accident happened. 25. The principles have been applied by this Court in the case of RSRTC vs. Pista Agarwal, 1985 RLR 134 and it has been held that for the claimants, it is sufficient to show that the accident happened and then it is for the defendant to show and prove as to how the accident happened. 25. It is true that in the present case, the claimants have not exhibited in evidence the relevant documents but this Court is of opinion that when the occurrence of accident from capsizing of the vehicle in question and receiving of injuries by the deceased and his resultant death are the facts which are otherwise established on record and there is no controverting of the same, there is no reason to reject the claim for compensation. It has not been the case of any person that the deceased contributed in any manner either to the accident or to the injuries and, therefore, issue No. 1 ought to have been decided in favour of the claimants in the manner that the accident occurred by the negligent use of the vehicle resulting in the death of Rajesh Singh for which the non- applicants remain liable. 26. It is further required to be imbibed that the provisions of the Motor Vehicles Act dealing with the claim for compensation provide for an entitlement to claim compensation when injury is caused or death results because of the use of the motor vehicle and the aspect of negligent driving is just one of the species of the tortious liability arising out of use of the motor vehicle. The Honble Supreme Court in Kaushnuma Begum vs. The New India Assurance Company Ltd., AIR 2001 SC 485 has summed up the principle governing such cases thus,- “11. It must be noted that the jurisdiction of the Tribunal is not restricted to decided claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action.” 27. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action.” 27. When a running vehicle capsized, unless user of the vehicle is able to bring his case within the exceptions recognized by the Honble Supreme Court in the case of Kaushnuma Begum (Supra), the case remains within the broader sweep of the principles of strict liability in Rylands vs. Fletchers requiring necessary care and caution by the person using a thing like a motor vehicle, as approved by the Honble Supreme Court in Kaushnuma Begum (Supra). Present one is not a case where any exception has even been suggested for which the owner of the vehicle could be exonerated. 28. It was not proper on the part of the Tribunal to proceed on the assumption that in every motor accidents claims case unless rash and negligent driving is proved, no right to claim compensation arises. 29. The findings on issue No 1 are set aside and it is held that the deceased Rajesh Singh died because of the injuries caused to him by the use of the vehicle in question when the same capsized and the non-applicants remain liable for compensation. 30. Coming to the question of quantification of the amount of compensation, the Tribunal has taken contribution of deceased at Rs. 7,200/-per annum and applied the multiplier of 18 and arrived at a figure of Rs. 1,29,600/-towards pecuniary loss. 5.31. From the averments in the claim application, it is found that the claimants have stated that deceased was contributing Rs. 700-750/-per month to them and he being the only son of the claimants No. 1 and 2, the statement cannot be taken to be incorrect. The claimants have stated that the deceased would have contributed Rs. 2,23,512/-to the claimants No. 1 and 2. An amount of Rs. 1,00,000/-has been claimed by the claimants towards agony and loss of love and affection and the claim has been made for an amount of Rs. 3,23,512/-. 6.32. The claimants have stated that the deceased would have contributed Rs. 2,23,512/-to the claimants No. 1 and 2. An amount of Rs. 1,00,000/-has been claimed by the claimants towards agony and loss of love and affection and the claim has been made for an amount of Rs. 3,23,512/-. 6.32. Even though the basis of calculation has not been stated on the recognized multiplier basis, this Court finds that for the death of only son of the claimants No. 1 and 2 aged 22 Years, the claim for compensation by them who were about 45 years of age at the time of accident deserves to be allowed with reasonable amount of compensation. The deceased has been shown to be earning about Rs. 1,000/-per month and getting further Rs. 1,000/-per annum in home guards duty and has been shown to be engaged in photography job. Providing for further prospects as well as uncertainties and even if the deceased be not taken in any settled job, an average income of about Rs. 15,000/-per annum could reasonably be taken for him and deducting one third, a contribution factor of about Rs. 10,000/-per annum could be taken to which a multiplier of 13 could be adopted looking to the age of the claimants and on that basis, pecuniary loss comes to Rs. 1,30,000/-. 7.33. On the non-pecuniary losses, it has been proved on record that the deceased was the only son of the claimants No. 1 and 2 hence an amount of Rs.