- (1.) SINGH, J. This appeal under Section 110d of the Motor Vehicles Act, 1939 is directed against the award of the Motor Accident Claims Tribunal, Etawah, dated 2-6-1976.
(2.) MANGAL Singh hired a taxi on 5-11-1973 at Tundla for going to Lucknow. Besides MANGAL Singh, Vinod Kumar, owner of the taxi and one Jagdish Singh was also travelling in the taxi. At about 10 PM. , the taxi dashed against a Shisham tree causing serious injuries to the driver and MANGAL Singh. Both of them died on the spot. Smt. Urmila Devi, widow of MANGAL Singh, Km Poonam, Km. Panki daughters and Dinesh Pal Singh, son all jointly filed a claim petition under S. 110a of the Act claiming compensation from Vinod Kumar, the owner of the taxi and the National Insurance Company, the insurer of the vehicle. The owner of the taxi Vinod Kumar contested the claim petition. He pleaded that the accident was not the result of any rash and negligent driving of the taxi by the driver and denied his liability. On appraisal of evidence produced by the parties the Tribunal held that the accident occurred on account of the rash and negligent driving of the taxi by the driver and as such Vinod Kumar, the owner of the vehicle was liable to pay compensation. As regards quantum of compensation the Tribunal held that the claimants were entitled to sum of Rs. 50,000 and he passed a decree to that effect. Out of the said amount the Insurance company was directed to pay a sum of Rs. 10,000 and the rest was to be paid by the owner. Aggrieved, Vinod Kumar, owner of the taxi has filed this appeal. On service of the notice of the appeal, the claimant also filed a cross-objection claiming enhancement of the amount of compensation. We have heard the appeal and the cross-objection together and both of them are being disposed of by this order.
(3.) LEARNED counsel for the owner of the taxi urged that the driver of the taxi was not guilty of any rash and negligent driving, as such the owner could not be liable for any damages. He further urged that Jagdish Singh, the only independent witness who was present at the time of the accident was not produced by the claimants and as such the claimants failed to discharge the initial burden to prove that the accident occurred on account of the rash and negligent driving of the vehicle by the driver. There is no dispute that none of the claimants was present at the scene of occurrence. The claimants tried their best to produce Jagdish Singh as they summoned him through Court at the address given by him for his evidence, but Jagdish Singh could not be traced out, as a result of which he could not be examined. The claimants had thus made efforts to produce Jagdish Singh, but they did not succeed in their efforts and for which they could not be blamed. Mohan Singh (P. W. 7 ). a resident of a nearby village where the accident took place was examined. He had witnessed the accident and he lodged the First Information Report with the police. S. I. Alauddin (P. W. 6), posted at police Station Jaswant Nagar, was also examined on behalf of the claimants. The Sub-Inspector prepared a site-plan of the accident showing the width of the road and the patri and the position of the taxi. According to the testimony of this witness the metal portion of the road was 24 feet wide and the Kachcha Patri was 10 feet wide. The taxi left the pucca road after covering 10 feet Kachcha patri and dashed against the shisham tree which was at the edge of the road. There was no skidding mark available on the spot and the road was clear and in good condition. There was no curve or culvert and or impediment on the road at the time of the accident. None of these witnesses could depose correctly as to how this accident occurred but the facts established by these witnesses prove the fact that the road was wide, clear and there was no traffic yet the accident occurred. In view of these circumstances an irresistible inference arises that the driver must have been going at a high speed and he lost control of the vehicle, as a result of which the vehicle left the road and dashed against the tree causing instantaneous death of Mangal Singh. Generally the burden to prove rash and negligent driving of a vehicle is on the claimants, but where the circumstances are established to show that the road was clear and there was no impediment and traffic, and yet the accident occurred, the burden lies on the driver or the owner to prove reason for the accident. The reason as to why the accident occurred was within the special knowledge of the driver. Since the driver was dead, the burden lay on the owner to explain the circumstances under which the accident occurred specially so as Vinod Kumar, owner of the taxi was himself travelling in the ill-fated vehicle. Vinod Kumar the owner of the taxi did not make any effort to explain the circumstances which may have caused the accident in his written statement, but in his deposition before the Tribunal he stated that a truck was coming from the opposite direction and while crossing, the truck had grazed against the body of the taxi, as a result of which the driver lost the control and the accident occurred for which the driver could not be held responsible. The Tribunal has, in our opinion, rightly discarded the explanation given by the owner. If the version given by Vinod Kumar was correct, he would have mentioned that version at his earliest opportunity in his written Statement. Since Vinod Kumar did not state any such thing in his written statement, the Tribunal rightly discarded his testimony. Moreover, Mohan Singh (PW 7) who claimed to have witnessed the accident did not mention the crossing of taxi by any truck. He was not cross-examined on this point. His presence cannot be doubted as he lodged the First Information Report with the Police. 7. On the proved facts the doctrine of res ipsa loquitur applies. The Supreme Court in Krishna Bus Service Ltd. v. Smt. Mangli, AIR 1976 SC 700 (at p. 703), observed : "buses in sound road-worthy condition driven with ordinary care, do not normally overturn. It would be for the driver who had special knowledge of the relevant facts to explain why the vehicle overturned. A presumption about the negligence will arise. In the absence of any explanation by the driver the maxim res ipso loquitur would be attracted. " 8. Applying the above test to the facts of the instant case, it is clear that the taxi was being driven in a sound road-worthy condition and the driver and the owner both have failed to explain the circumstances leading to the accident. It is therefore, permissible to raise a presumption about the negligence of the driver. We are, therefore, in agreement with the finding of the Tribunal that the taxi was being driven in a rash and negligent manner. 9. Learned counsel then urged that the Tribunal has awarded excessive compensation. He urged that the Tribunal should have made deduction on account of lump sum payment being made to the claimants. Mangal Singh, deceased was employed as a co-operative supervisor. On the date of his death he was drawing salary at the rate of Rupees 300/- per month. He left a widow and four minor children. They were all dependent upon him. Mangal Singh would have been spending at least a sum of Rs. 200/- per month on the maintenance of his wife and children. On account of the death of Mangal Singh, the claimants were put to a pecumiary loss of Rs. 200/- per month. If Mangal Singh would have been alive he would have continued in service till the age of superannuation, i. e. , 58 years, On the date of his death Mangal Singh was aged about 35 years. The claimants were put to a pecuniary loss of Rupees 2400/- per annum for a period of 23 years. Thus, in all the claimants were put to a pecuniary loss of Rs. (2400 x 23) = 55,200/ -. This amount would have been received by the claimants in driblets, where as under the award they were being paid this money in lump sum. Some deduction has to be made on this account. In our opinion a deduction at the rate of 25% will meet the ends of justice. Consequently a sum of Rupees 13,800/- is to be deducted from Rs. 55. 200/ -. Thus, the claimants are entitled to a sum of Rs. 41,400/ -. The award of the Tribunal requires modification to this extent. 10. No other point was pressed before us on behalf of the owner of the vehicle. 11. Learned counsel for the claimants urged that we should allow the cross-objection and increase the amount of compensation. After hearing learned counsel we find no good reason to enhance the compensation. The learned counsel was, however, right in his contention that the Tribunal has awarded interest to the claimants at the rate of 6% from the date of the decree and not from the date of making the claim petition. The Tribunal has given no reasons for this departure. Section 110-CC of the M. V. Act, 1939 provides that; "where any Court or claims Tribunal allows a claim for compensation made under this Chapter, such court or Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. " Normally, the claimants are entitled to interests from the date of making the claim petition. The Tribunal has not given any reason as to why the claimants were not entitled to interest from the date of making of the application. We are, therefore, of the opinion that on the facts and circumstances of the case the claimants are entitled to interest at the rate of 6% from the date of making the claim petition. The claim petition was filed on 21-5-1974. The claimants are, thus, entitled to interest at the rate of 6% per annum with effect from that date. The cross-objection succeeds to that extent. 12. In view of the above discussion we partly allow the appeal as well as the cross-objection and modify the award of the Tribunal to the extent that the claimants are entitled to recover a sum of Rs. 41,400/- as compensation, out of which a sum of Rupees 10,000/- shall be payable by the insurance company and the remaining amount shall be recovered from the owner. The claimants are further entitled to recover interest at the rate of 6% per annum from the date of making the claim petition, from the owner as well as from the insurance company. In the circumstances of the case the parties shall bear their own costs. Interim Order stands discharged. Order accordingly. .;