J.B. Mehta, J. - (1.) THE original opponents Nos. 1, 2 and 3 and the claimants have filed respectively these two appeals against the award of the Claims Tribunal awarding compensation of Rs. 34,500/ - with proportionate costs and interest from the date of the application till payment at 6%. The concerned widow has also now expired on February 3, 1976 and therefore, only four minor claimants are now represented by the grand -father. The deceased Rajusing Dipsing was a police constable at Shamlaji on the night of May 5, 1973. He had been sent at mid -night to Ahmedabad to deliver an urgent message of the Sub -Inspector at Shamlaji Police Station to Ahmedabad and that is why this unfortunate constable was carried as a pillion rider on the motor -cycle in question driven by opponent No. 6 Balkrishna Joshi. On this fatal night the motor cycle was proceeding from Shamlaji to Ahmedabad along the north -south road and the accident took place after a distance of one kilometer from Chandrala village on this road. This tar road is admittedly 21' -9" wide with Kutcha shoulders on both the sides of 6' -6". The truck came from the opposite side with full dazzling light and therefore, the motor cycle could not go on his right -hand side and it collided with another truck lying at the spot No. GTS 1283 belonging to opponent No. 2, which was driven by opponent No. 1 and which had been insured by opponent No. 3 the insurance company. The truck was parked on the tar road and it had been left there by opponent No. 1 driver without any back light or reflector or without any head light at the rear and without leaving any signal to indicate the presence of this parked truck. In fact, the driver opponent No. 1 was sleeping in the truck. 1 he motor cycle collided against the rear part of this parked truck and therefore, both opponent No. 6 and this constable had been thrown on the road. As a result of this collision, the constable had been seriously injured and was removed to the hospital where he died on the same day. The truck driver opponent No. 1 of this parked truck ran away with the truck after this accident and he has not filed any written statement or given evidence in the witness box. Compensation was claimed before the Tribunal to the extent of Rs. 60,000/ - but the Tribunal on the basis of Rs. 175/ - as the datum figure awarded compensation claim only to the extent of Rs. 34,500/ -. The Claims Tribunal also held that there was no necessity to apportion the compensation amount because the tortfeasors would be jointly and severally liable to the dependents of the victim. Therefore, it was not necessary to determine the proportion of negligence, but if it was necessary to do so, he would consider opponent No. 6 as liable to the extent of 25%. The victim could, however, recover from both the tortfeasors, Opponent No. 6 has not filed any appeal. Opponents Nos. 1 to 3 have filed an appeal and the claimants have filed cross appeals to the extent of the claim disallowed i.e. to the extent of Rs. 25,400/ -.
(2.) AT the hearing by an affidavit the claimants have clarified the position as to the effect of implementation of the Second Pay Commission Report with back effect from 1.1.73 as per the revised pay rules and with effect from May 1, 1973, so far as dearness allowance is concerned. The award had been given in January 1976 and at the stage of evidence when police constable Jaswantsing Khumansing, Ex. 130, was examined on December 23, 1975, his deposition related to pay, dearness allowance etc. on the basis of interim relief. As now the final revision has come into effect, this clarificatory affidavit had been taken on record. It is true, Mr. Kadri had vehemently argued, that this affidavit could not now be taken on record. Mr. Kadri ignores the fact that this is an affidavit only clarifying the position as to the implementation of the revised pay scales which as, per the subsequent notifications have come into effect. The two notifications of the Government are of October 1975 and January 5, 1976 and therefore, judicial notice could be taken of this revision of emoluments of Government servants with such back effect from 1.1.73 and 1.5.73 because the accident in the present case has taken place on the night of May 5, 1973, at about, 3.00 a.m. A Ready Reckoner of Dearness Allowance and Additional Dearness Allowance effective from 1.5.73 has been annexed for computation of dearness allowance by way of immediate reference to figures which could be equally worked out even on the basis of the revision of pay scales and the D.A. as per the said Government notifications. Therefore, no objection can be taken to the affidavit being taken on record and the said objection has been overruled. At the hearing Mr. Vakil and Mr. Kadri for opponents have challenged the award on various grounds. As regards negligence, the Claims Tribunal rightly found the negligence clearly established in the present case. The evidence of opponent No. 6 at Ex. 119, the motor cyclist was completely corroborated by completely independent witness Somabhai Patel, Ex. 95 and by the eloquent facts which emerged from the relevant Panchnama, Ex. 57. The collision had taken place at about 3 -0 a.m. It was a dark cloudy night. The motor cyclist had categorically stated that he could notice this parked truck only when he came very near to it to a distance of about 10 ft., but before that he had been dazzled by the full light of another on -coming truck from the opposite side. There was no person present and no stone or signal to indicate the presence of the parked vehicle and so this collision had taken place between the left front portion of the motor cycle and the the right rear portion of the parked truck. There was no glass reflector at the rear. At the parked truck there were no rear reflectors or rear light. He categorically denied that the parked vehicle was wholly on the Kutcha road, but according to him all the four wheels of the vehicle were on the tar road. He was on the correct side at only 5' from the edge of the tar road on the left. The independent witness Somabhai, Ex. 92, who was the Sanchalak of Chandrala Milk Co -operative Society, had been standing on this National Highway Road No. 8 on this fatal night at about 3 -00 a.m. at only 50 to 60 ft. from the parked truck. He completely corroborates the version of the motor cyclist that the other truck had come from the opposite side and the motor cyclist dashed against the rear part of the parked truck as a result of which both these persons had fallen down from the motor cycle. The driver and the conductor of the parked truck had been sleeping in the truck. He also categorically deposed that there was no light at the rear of the truck or any red flag or signal or even a stone indicating the presence of the parked truck. The motor cyclist was on his correct side. He denied that the motor cyclist collided with the front part of the truck. It is true, he had stated that his attention was drawn after the sound of collision was heard and he had felt on seeing the back of the parked truck that the motor cyclist had collided with the right rear back portion almost at the end but he felt that the governor of the motor cycle had collided with the truck. This man had been the Panch for the Panchnama Ex. 57 of the scene of the accident which was drawn on May 6, 1974, at 4 -0 to 5 -0 p m. The Panchnama mentions that the place of the accident where blood was lying and the oil trail with pieces of glass was to be found at this place 6' -8" from the western edge of the tar road and 15' -1" from the eastern edge. Therefore, the Claims Tribunal had observed that the place of collision was within the western half of the road which clearly shows that the parked truck was wholly on the tar road. It appears that the motor cyclist having been dazzled had collided with this parked truck. Therefore, from the primary facts of leaving the parked truck wholly on the tar road on such dark cloudy night without any rear light or reflector or signal to show presence of this parked truck and when the driver, opponent No. 1 and the conductor had been sleeping in the truck, negligence of the parked truck clearly emerges. Neither the driver nor the conductor has come in the witness box to rebut the presumption of negligence which arises from these primary facts.
(3.) MR . Vakil, however, vehemetly argued that the witness Somabhai Patel, Ex. 95, appeared to be a chance witness and he had not seen the incident because his attention was drawn only by the sound of the collision. The evidence of the motor cyclist is corroborated by this independent witness which supports his testimony and by the facts emerging from the Panchnama of the scene of the accident at Ex. 57. The version sought to be put up that the collision had taken place from the front is falsified by the aforesaid evidence. Mr. Vakil vehemently argued that the Panchnama of the parked truck Ex. 58, does not disclose any damage on the rear. The Claims Tribunal has duly considered this circumstance that this Panchnama, Ex. 58, was made on May 7, 1973 after 36 hours. In fact the truck had left the place because opponent No. 1 had escaped with the truck after the accident. When merely the governor or a small portion of the motor cycle had dashed with the rear part of the truck hardly any damage mark can be left on the truck. Therefore, this clear evidence could not be discarded. There is hardly any dispute where the accident took place and whether the collision was in the front portion or the rear, it was due to the negligence of the parked truck. Mr. Vakil argued that in any event the motor cyclist must be grossly negligent. It is true that no appeal had been filed by this motor cyclist, opponent No. 6, because the observation of the Claim Tribunal as to the apportionment was in the alternative. In fact much could have been said for opponent No. 6 because opponent No. 6 has categorically deposed that first he saw the on -coming truck from a distance of 200 ft. and he had been completely dazzled by the full light. He became aware of the presence of the parked truck only from a distance of 10 ft. Therefore, in this sudden emergency when he was so blinded, if he collided with this parked truck, his negligence would be very insignificant as compared to the negligence of this parked truck driver who left the truck on the main tar road in such a condition on such a dark cloudy night without even light in the rear or reflector and without putting any signal to indicate presence of this parked truck. Therefore, the grievance, if any, can be of opponent No. 6. But that question does not arise before us as we have to determine liability of these tortfeasors qua the claimants. The negligence was, therefore, completely established and that finding of the Tribunal could never be interfered within this appeal.;