R.S. Chauhan, J. - (1.) AGGRIEVED by the award dated 07.04.2010, passed by the learned Motor Accident Claim Tribunal, District Dausa, (for short, 'the learned Tribunal') whereby the learned Tribunal has awarded a compensation of Rs. 4,52,000/ - to the claimants -respondents, the appellants, who are the owner and the driver of the offending vehicle, have approached this Court.
(2.) THE brief facts of the case are that on 12.12.2006, around 2:00 PM, Mukesh & Lakhan Jatav were going to their village Kamapura on their Motorcycle, bearing registration No. RJ -05 -2M -8381. While they were travelling on the National HighWay No. 11, near Teliwari Border, allegedly they met with an accident with a Tanker, bearing registration No. RJ -29 -G -1026. Resultantly, while Mukesh died on the spot, Lakhan received injuries. Since the claimants had lost their sole bread earner, they filed a claim petition before the learned Tribunal. The appellants filed their written statements wherein they specifically pleaded that the accident did not occur with the Tanker. Instead, the accident occurred due to the negligence of the deceased himself. While the deceased was trying to overtake a motorcycle, bearing registration No. RJ -02 -SC -6214, the motorcycle of the deceased lost its balance. The motorcycle fell; consequently, Mukesh expired and Lakhan was injured. However, as the tanker was passing by the site of the accident, it was falsely implicated. In order to prove their case, the claimants examined three witnesses and submitted ten documents. In order to buttress their contention, the appellants examined two witnesses. After hearing both the parties, vide award dated 07.04.2010, the learned Tribunal awarded the compensation, as mentioned above. Hence, this appeal before this Court. Mr. Rizwan Ahmed, the learned Counsel for the appellants, has vehemently contended that Yad Ram (AW -2) and Yogesh Gurjar (AW -3) are not eyewitnesses of the accident. In his testimony, Yad Ram (AW -2) has clearly admitted that he reached the site of the accident two minutes later. Therefore, he cannot claim to be an eye -witness. Moreover, both the witnesses have admitted the fact that they were related to the deceased. Thus, they are interested witnesses. Secondly, the claimants themselves had filed an application under Order 1 Rule 10 CPC for impleading the owner and the driver of the motorcycle bearing No. RJ -02 -SC -6214 as party respondents. Although the said application was dismissed by the learned Tribunal, but the filing of the application clearly proves that the claimants themselves were not sure whether the tanker was involved in the accident or not? Their filing the application clearly shows that they too are convinced that the Tanker was not involved in the accident, but it was another motorcycle bearing No. RJ -02 -SC -6214 which was involved. Thus, the claimants are simultaneously blowing hot and cold. Despite the uncertainty of the claimants, the learned Tribunal has erred in holding the appellants liable for the accident. Thirdly, Vinod Kumar, the driver of the motorcycle bearing No. RJ -02 -SC -6214, has been examined as NAW -2. In his testimony, he clearly states that while he was driving his motorcycle, the deceased came from behind and tried to overtake his motorcycle. In this process, the deceased hit the divider, and fell. Consequently, he died. This independent witness also testified that the Tanker was not involved in the said accident. According to the learned Counsel, the learned Tribunal has erred in not believing this witness, who happens to be an independent one. Fourthly, according to the learned Counsel, the claimants and the police have colluded to falsely implicate the Tanker. Therefore the documents prepared by the police are unreliable. Lastly, a wrong multiplier has been applied by the learned Tribunal. According to schedule -II attached to the Motor Vehicle Act, 1988, in case the deceased is between the ages of fifteen to twenty, the multiplier of 16 should have been applied. According to the postmortem report, the deceased was eighteen years old when he expired. Thus, a multiplier of sixteen should have been applied. But the learned Tribunal has applied a multiplier of eighteen. Thus, the learned Tribunal has gone beyond the Schedule II prescribed by the law.
(3.) ON the other hand, Mr. Lokesh Sharma, the learned Counsel for the claimants -respondents, has strenuously contended that in fact Yad Ram (AW -2) and Yogesh Gurjer (AW -3) are not related to the claimants. According to both the witnesses, the deceased was merely their nephew by the fact that they were resident of the same village, but there is no blood relationship between the deceased and the witnesses. Thus, they cannot be classified as the interested witnesses. Secondly, merely because they claim that they reached the spot two minutes after the accident, the said statement is not to be taken literary, but is of figure of speech meaning they reached the spot immediately after the accident. Moreover, their testimonies are corroborated by the site plan prepared by the police. According to the site plan, the accident had occurred right next to the divider and that too due to the negligence by the driver of the Tanker. Thus, their evidence has been corroborated by the documentary evidence. Thirdly, merely filing of an application under Order 1 Rule 10 CPC would not oust the case of the claimants. For, the claimants have consistently pleaded in the petition and have produced two witnesses to buttress their case that the accident, in fact, took place between the motorcycle of the deceased and the Tanker. Furthermore, since the said application has been dismissed by the learned Tribunal and since the claimants did not file any appeal against the said dismissal, the filing of the application does not strengthen the case of the appellants. Fourthly, the learned Tribunal has rightly disbelieved the testimony of Vinod Kumar (NAW -2). For, Vinod's testimony is not in consonance of the case set up by the claimants. Lastly, the learned Tribunal has applied a multiplier of eighteen relying on the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. : 2009 ACJ 1298. Therefore, the correct multiplier has been applied by the learned Tribunal.;