- (1.) THESE four appeals arise out of the judgment/award dated August 31, 1982, passed by the Judge, Motor Accident Claims Tribunal, Jodhpur, in Claim Cases No. 11/76 (148/1978) (Smt. Dakudi and another vs. Mana Ram and others) and claim petition No. 12/76 (149/1978) (Udai Singh vs. Mana Ram and Others), by which the learned Judge of the Tribunal partly decreed the claim of the claimants.
(2.) ANAND Singh, who was driving an Ambassador Car (Taxi) No. RSQ 4151, met with an accident with truck No. RJQ 5069 on Balotra- Barmer road on a turn near Nimbla Fanta. ANAND Singh died at the spot. Deceased ANAND Singh was accompanied by one more passenger in the car, who was thrown out of the car on account of this accident. The truck No. R. IQ 5069 was driven by its owner Mana Ram rashly and negligently and it was on account of rash and negligent driving of the truck by Mana Ram that the accident took place. Smt. Dakudi, mother of deceased ANAND Singh and Kaushaliya sister of deceased ANAND Singh, filed a claim petition in the Court of the Judge, Motor Accident Claims Tribunal Balotra, for the realization of the amount of Rs. 1,00,000/-on various counts. This claim petition was registered as Claim Petition No. 11 of 1976. Udai Singh-the owner of the taxi-car, also, filed a claim petition for the Award of Rs. 62,500/- (Rs. 23,500/- as cost of the Car, Rs. 22,000/-as loss of income, Rs. 10,000/- for mental agony suffered on account of the death of his brother ANAND Singh and Rs. 7,000/- for the repayment of the loan ). This claim petition was registered as the Claim Petition No. 12 of 1976. Later on, both the claim petitions were transferred to the Court of the Judge, Motor Accident Claims Tribunal, Jodhpur, and were registered as Claim Petition No. 148 of 1978 and Claim Petition No. 149/1978, respectively. The owner of the truck as well as the insurance company, both, contested the claim petitions filed by the claimants. The case, as set-up by the owner of the truck in its reply was that Mana Ram, the owner and the driver of the truck was driving the truck on March 9, 1976, at 9. 00 a. m. on the Balotra-Barmer road, on a turn near Nimbla Fanta, with caution and at a lower speed. The car taxi was driven by ANAND Singh and one more passenger was sitting inside the car and the accident took place on account of rash and negligent driving of the car by its driver ANAND Singh. He was driving the car with fast speed and there was a slope while the truck was proceeding on a height and therefore the speed of the truck was much lower while the car was on the slope and was proceeding with a higher speed, and it was only on account of the rash and negligent driving of the car by ANAND Singh that the accident took place. On the basis of the pleadings of the parties, the issues were framed separately in both the cases, but on the request of the parties, the trial Court, by its order dated July 31, 1978, consolidated both the cases as they related to the same accident, and recorded the statements in Claim Petition No. 148 of 1978. The claimants, in support of their case, examined seven witnesses, namely, PW 1 Dakudi the mother of deceased driver ANAND Singh, PW 2 Udai Singh the brother of the deceased ANAND Singh P. W. 3 Dr. Ramesh Chandra Purohit, who conducted the post mortem on the dead body of deceased ANAND Singh, P. W. 4 Dr. Khushal Singh Gehlot brother of the deceased ANAND Singh, PW5 Narain Doonathani, the alleged eye witness of the accident, PW 6 iadan Singh, M. T. O. and PW 7 Khinv Singh, Head Constable, Police Station, Sindri, who registered the criminal case, prepared the site plan, examined the witnesses and presented the challan. The non-petitioners examined OPW 1 Mana Ram, OPW 2 Rana Ram, OPW3 Padam Chand Manager, Union Bank, Jodhpur and OPW4 M. L. Mehta, the Inspector, National Insurance Company, Jodhpur. The learned Judge of the Tribunal, by its Award/judgment dated August 31, 1992, partly decreed the claims of the claimants. The learned Judge of the Tribunal held, both the drivers of the truck as well as the driver of the Car negligent in driving their vehicles and also came to the conclusion that both the vehicles were driven rashly and negligently and it was on account of the contributory negligence of both the drivers of the vehicles that the accident too place. The ratio of the contributory negligence was fixed by the learned Judge of the Tribunal at 50% - 50%. The learned Trial Court, also, came to the conclusion that the applicants Smt. Dakudi and Kaushaliya Devi are the two dependents of the deceased ANAND Singh and they are entitled to receive the compensation. The learned Judge of the Tribunal assessed the dependency of the claimants of Rs. 200/- per month and applied the multiplier of 20 and determined the dependency of Rs. 48,000/-, which was reduced by him to 50% as ANAND Singh himself contributed to the accident. In the claim petition filed by Smt. Dakudi and Kaushaliya, the learned Judge of the Tribunal thus, awarded Rs. 24,000/-as compensation. The learned Judge of the Tribunal, in the claim petition No. 12 of 1976 (149/1978), filed by Udai Singh, determined the loss incurred by the claimant Udai Singh on account of the damages to the car, to the tune of Rs. 23,000/-, but a Rs. 16, 667. 16 p. were already paid by the Insurance Company to the claimant in satisfaction of his claim, the trial Court, therefore, awarded as sum of Rs. 6,333/- as the balance amount, but the claim petition of the claimant Udai Singh on other counts was dismissed. Dissatisfied with the Award/judgment dated August 31, 1982, awarding the compensation only upto the tune of Rs. 24,000/- and dismissing the remaining claim, Smt. Dakudi and Kaushaliya filed an appeal for the enhancement of the claim amount and for the decree of the remaining amount. That appeal is registered as S. B. Civil Miscellaneous Appeal No. 26 of 1983 (Smt. Dakudi and Another vs. Mana Ram and Others); Mana Ram the owner and driver of the truck, also, filed an appeal challenging the Award of the compensation amounting to Rs. 24,000/-in Claim Petition No. 11/1976 (148/78), which was registered as S. B. Civil Miscellaneous Appeal No. 168 of 1982 (Mana Ram vs. Smt. Dakudi and Another ). Udai Singh, aggrieved with the insufficiency of the amount awarded by the Tribunal in Claim Petition No. 12/76 (149/1978) preferred an appeal which was registered as, S. B. Civil Miscellaneous Appeal No. 78 of 1983 (Udai Singh and others vs. Mana Ram), and Mana Ram, the owner and driver of the truck, aggrieved of the award granting damages to the tune of Rs. 6,333/- as the price of the car, preferred an appeal, which was registered as S. B. Civil Miscellaneous Appeal No. 267 of 1982 (Mana Ram vs. Udai Singh and Others ). It is contended by the learned counsel for the claimants Smt. Dakudi and another that the learned Judge of the Tribunal committed an error in awarding the compensation only to the tune of Rs. 24,000/ -. It is contended by the learned counsel for the claimant that the learned Judge of the Tribunal committed an error in holding that Anand Singh was, also, liable for the contributory negligence for the accident. It is, also, contended by the learned counsel for the appellants that deceased Anand Singh was earning Rs. 450/- per month and it has, also, come on the evidence that he was paying Rs. 300/- per month to the claimants and, therefore, the learned Judge of the Tribunal was not justified in assessing the dependency only upto Rs. 200/- per month and granting the lesser amount of the compensation. His further submission is that the multiplier of 20 applied in the present case is much on the lower side. In the appeal filed by Udai Singh, it is contended by the learned counsel for the appellant that the learned Judge of the Tribunal was not justified in awarding a sum of Rs. 6333/- only while the appellant Udai Singh sufferred a loss of Rs. 23,500/-as the price of the car and, also, suffered the loss of income of Rs. 22,000/. It is, also, submitted by the learned counsel for the appellant Udai Singh that the learned Judge of the Tribunal failed to grant Rs. 10,000/- claimed by the claimant on account of mental sufferings and agony. The learned counsel for the respondent Mana Ram, the owner and driver of the truck on the other hand has submitted that the accident took place on account of the rash and negligent driving of the car by its driver and the learned lower Court committed an error in awarding the compensation against him. His further submission is that Udai Singh had already filed a claim petition with the Insurance Company and took the amount of the claim from it and as such he was not entitled to file the present claim petition. It was further submitted that the claim petitions filed by the claimants deserve to be dismissed. I have considered the rival submissions made by the learned counsel for the parties. The first question, which requires consideration in the present case is : how the accident took-place and who was responsible for the accident? On the issue, the applicants have produced PW 5 Narain Doonathani, PW6 Iadan Singh, M. T. O. and PW 7 Khinv Singh, the Head Constable Police, Police Station, Sindri, while from the side of the non-applicants, OPW1 Mana Ram, who was driving the truck at the relevant time and OPW2 Rana Ram, the cleaner (Khalasi) have been produced. PW 5 Narain Doonathani, the alleged eye witness of the accident, has stated that on March 9, 1976, at about 7. 30 or 7. 45 a. m. , he was going from Balotra to Barmer on his motorcycle and the Mistry Jai Singh was sitting on the pillion. 20 miles before the place of the accident, a truck over-took them. The truck was being driven rashly and negligently and it dashed against the Ambassador taxi-car and at that time he was at a distance of 2 to 2 1/2 furlong from the truck, but the truck was visible. He has stated that the car was being driven on the left side of the road and when he reached at the place of the accident, several persons had already collected there. The driver of the car died on the spot itself instantaneously. One passenger was, also, sitting on the rear seat of the car, who, also, received some injuries and at the time he was unconscious. He, alongwith other, took out that man from the car and sent him to the hospital at Barmer in a Roadways bus and the driver of the truck, viz. , Mana Ram, went to lodge the report at the Police Station. In cross-examination, he has admitted that he reached at the place of the occurrence sometime after the accident had taken place. He has stated in the cross-examination that the road was straight and there was no curve near the place of the accident. He , also, admitted in the cross examination that several persons were present there on the place of the occurrence when he reached there. He has, also, admitted in the cross-examination that he had no work contract at Barmer at the relevant time and he was going casually to Barmer. He has, also, stated that no trees were there by the sides of the road. This witness is not a reliable witness. Admittedly, he reached at the place of the occurrence much after the accident took place and severan persons had collected there. This witness has given a statement which is not in consonance with the claimants' case and even contrary to the site plan and the evidence of PW 6 Iadan Singh M. T. O. and PW 7 Khinv Singh Head Constable. This witness does not inspire confidence and deserves to be disbelieved. DW 1 Mana Ram, the owner and driver of the truck has stated that the accident took place on March 9, 1976. According to him, there is a steep rise near the place of the occurrence and there is, also, a curve. He was proceeding from Jodhpur to Barmer and the truck was on the steep-rise while the car was coming from the higher side on the slope. On account of the curve, the coming vehicle was not visible. He was driving his truck on the left side of the road and his vehicle was in the third gear and he was blowing the horn but the car came without blowing the horn and was driven rashly and negligently and it rushed against the truck, on account of which the tyres and the right-side light of the truck were broken and on account of damages to the tyres. , the truck went out of control. He has, also, stated that seeing the car, he took his truck on the Kacha side of the road but the accident could not be avoided. PW 6 Iadan Singh, M. T. O. , has stated that he inspected the site and there was a curve on the road at the place of the occurrence and there were trees of Khejris and Akdas on the sides of the road. A drum was lying by the side of the road and on account of that, the driver of the truck was not in a position to see the vehicle coming from the opposite direction. Similar, is the statement of PW 7 Khinv Singh Head Constable. After perusal of the Statements of these witnesses and lookingto the site plan and the site inspection note, which have been produced in these two cases, it is proved that there was a curve on the road at the place near the accident and the truck was proceeding on the height while the car was on the slope side and the driver of the car could not have seen the vehicle coming from the opposite direction and on account of the curve in the road both the driver did not take their vehicles on the Kuccha part of the road so that both the vehicles could pass easily on the road and the accident took place on account of the rashness and negligence on the part of both the drivers, i. e. the drivers of the truck and the driver of the car and both the drivers were responsible for the accident. The learned lower Court was, therefore, justified in holding both the drivers contributory negligent for the accident. The judgment passed by the learned Judge of the Tribunal on this point, thus, does not require any interference. The next question, which requires consideration is : what was the income of deceased Anand Singh on the relevant time and whether Smt. Dakudi, the mother of the deceased Anand Singh and Kaushaliya, the sister of the deceased Anand Singh are entitled for the amount of compensation and whether dependency has been rightly determined by the learned Judge of the Tribunal? The claimants, on this point, have examined PW 1 Smt. Dakudi herself, PW2 Udai Singh and PW 4 Dr. Khushal Singh Gehlot, the brother of the deceased Anand Singh. PW 1 Smt. Dakudi has stated that her son Anand Singh was getting Rs. 400/-per month as the pay and was paying Rs. 300/- per month to her for meeting the house-hold expenses. PW 2 Udai Singh has stated that Anand Singh was working as the driver with him on his taxi-car No. RSQ 4151 and he was paying Rs. 350/- per month to him as the pay and some additional allowances were, also, being paid to him whenever he used to go out and Anand Singh used to tell him that he was paying Rs. 300/- per month to his mother and sister. P. W. 4 Dr. Khushal Singh, the brother of the deceased Anand Singh has stated that Anand Singh used to give Rs. 300 to Rs. 350/- per month to his mother and sister. All these three witnesses have further stated that both Smt. Dakudi and Kaushaliya are living separately till now and Smt. Dakudi is doing the work in a school as well as she is, also, doing to work of "rolling the Papad". The learned Judge of the Tribunal, on the basis of this evidence, produced by the claimants, determined the income of deceased Anand Singh at Rs. 350/- per month and he further observed that out of this amount of Rs. 350/- he might be spending Rs. 150/- on himself and might have given Rs. 200/- per month to his mother and sister. He therefore, determined the dependency of these two persons at Rs. 200/- per month and applied the multiplier of 20 and deducted 50% of the amount on account of the contributory negligence of deceased Anand Singh. I have discussed above the evidence produced by the claimants. From the evidence produced by the claimants, it is, thus, clear that deceased Anand Singh was getting the monthly salary of Rs. 350/- and out of this amount of Rs. 350/-, he must be spending about Rs. 150/- per month on himself and was paying Rs. 200/- per month to the claimants. The dependency of the claimants was, thus, rightly determined by the learned Judge of the Tribunal to the tune of Rs. 200/- per month.
(3.) THE next question, which requires consideration in the present case is whether the mother or the sister can be said to be the dependents of the deceased Anand Singh? So far as Smt. Dakudi is concerned, she is the mother of deceased Anand Singh and was dependent upon him. Though two other sons of Smt. Dakudi are still alive, and they are expected to maintain her, but in the zeal to punish the driver of the truck and to meet out the expenses of maintenance by way of receiving compensation in this case, they have stated before the Court, which does not appear to be reasonable, that they are not maintaining their mother. It is their duty to maintain their mother, but anyhow, the mother being the claimant, is entitled to receive the amount of compensation. So far as Kaushaliya is concerned, she is a married woman and she cannot be said to be dependent upon the deceased Anand Singh and, therefore, she is not entitled to receive any compensation. THE learned lower Court was, also, justified in applying the multiplier of 20 in the present case. THE age of Smt. Dakudi is 50 years and, the average age, as given in the claim petition by the claimants, is only 65 years, and, therefore, even if the age expectancy is taken to be 70 years then the multiplier of 20 was rightly applied. Moreover, the deceased was not married and as the other two brothers are not keeping their mother, the deceased Anand Singh might not have kept his mother, also, but anyhow, looking to the facts and circumstances of the case, the multiplier of 20 was rightly applied by the learned trial Court. The learned Judge of the Tribunal has, also, rightly considered the case of the claimants on other counts and has rightly rejected the claim on other counts. No interference is called for in the matter. So far as the compensation awarded in Claim Petition No. 12/76 (149/1982) in the case of claimant Udai Singh is concerned, the learned Judge of the Tribunal awarded a sum of Rs. 23,000/- as the cost of the car and out of this cost, the amount of Rs. 16,667. 14 p. was deducted by the Tribunal as this amount was already received by the claimant Udai Singh from the Insurance Company. OPW 3 Padam Chand Chhabra, the Branch Manager of Union Bank of India, has specifically stated that the National Insurance Company, paid Rs. 16,667. 14 p. in the account of the claimant Udai Singh and that amount has been deposited in his account and if that amount has not been adjusted then they will adjust the amount in the account of Udai Singh. OPW 4 M. L. Mehta, the Inspector, National Insurance Company has, also, stated that the taxi-car No. RSQ 4151 was insured with their Insurance Company and the claim of Rs. 16,667. 14 p. was passed and a cheque for that amount was issued which was given to the Union Bank, Sojati Gate Branch, Jodhpur as the car was hypotheticated with this bank. From the evidence of Padam Chand and M. L. Mehta, it is clear that the amount of Rs. 16,667. 14 p was received as the claim amount for the damages to the car against the insurance policy and which was deposited in the account of the claimant Udai Singh and, therefore, the learned lower Court was justified in granting Rs. 6,333/- to the claimant Udai Singh. The claimant Udai Singh failed to prove his case for the grant of compensation for the loss of income and, also, on account of mental agony and torture. The learned lower Court was, therefore, justified in disallowing the Claim of the claimant Udai Singh on these counts. ;