B.R.ARORA,J. - (1.) THIS appeal is directed against the Award dated 6.8.85 passed by the Judge, Motor Accident Claims tribunal, Jodhpur, by which the learned Judge of the Tribunal allowed the claim petition filed by the claimant and awarded compensation/damages amounting to Rs. 96,000/ - to Smt. Abhay Kanwar, the mother of deceased Ramesh.
(2.) THE brief facts of the case are that on 27.11.79, deceased Ramesh was going on his scooter bearing registration No. RRL 7269 from his house to his factory situated at Basni, Jodhpur. When, after crossing the Indian Oil Depot, Ramesh reached near the main Basni road, the truck bearing No. RJM 180, which was being driven by driver Pratap, came from behind. The truck was being driven rashly and negligently and it hit the scooter of Ramesh. Ramesh received injuries and died on the spot. The claim petition was filed by Smt. Abhay Kanwar, the mother of deceased Ramesh on 20.5.80 before the Motor Accident Claims Tribunal, Jodhpur, against Pratap and Hanif, who are the driver and owner, respectively, of the truck as well as against the National Insurance Company, Sardarpura Branch, Jodhpur. It was alleged in the claim petition that deceased Ramesh, before his death, had established welding electro factory in plot No. 29 of the Industrial Area, Basni (Phase -II), Jodhpur and had invested about Rs. 4,00,000/ - thereon. He started the construction of the factory in the year 1976 and the factory started production on the Deepawali of 1978. Deceased Ramesh was holding the Degree of B.E. (Civil) and had acquired training in various industries. He was earning about Rs. 50,000/ - per month. The claimant, therefore, claimed a sum of Rs. 25,01,000/ -, being the mother of the deceased as the deceased was unmarried and was aged about 28 years at the time of his death in the accident. This claim petition was contested by the respondent No. 1 and 2 jointly as well as by the respondent No. 3. The defence taken by the non -petitioners is that it was not on account of rash and negligent driving of the truck by its driver that the accident took place but, in fact, the road, where the accident took place, was having pits and was badly damaged and having only two feet tarred road and the remaining part thereof was having griets and sand. The truck was driven at a moderate speed. Deceased Ramesh was driving the scooter rashly and negligently and he tried to overtake the truck from the left side of the truck; a car was coming from the opposite side and, therefore, Ramesh lost his balance and dashed against the mud -guard of the truck and fell down on the ground, received injuries and died on the spot. As per defence case, it was only on account of rash and negligent driving of the scooter by deceased Ramesh that the accident took place. The claimant, in support of her case, examined herself as PW 1 and produced in her evidence PW 2 Ratan Lal, the father pf deceased Ramesh, PW 3 Hanuman (the eye witness of the accident) and PW 4 Narain Lal, the Motbir witness to the various recoveries etc. The non -claimants did not examine any witness in their defence. The learned Judge of the Tribunal, after trial, came to the conclusion that the accident took place on account of the rash and negligent driving of the truck by its driver Pratap. The learned Judge of the Tribunal, also, came to the conclusion that the claimant has failed to establish the income of deceased Ramesh to the tune of Rs. 50,000/ - per month and he assessed the income of the deceased at Rs. 1500/ - to Rs. 1600/ - per month and after deducting 1/3 of the income which the deceased was spending on himself, he assessed the loss of dependency @ Rs. 1,000/ - per month and looking to the age of the claimant, he applied the multiplier of eight and awarded a sum of Rs. 96,000/ - with interest @ 10% per annum from the date of filing the claim petition till the payment of compensation/damages amount is made. It is against this award that the appellant has filed this appeal. It is contended by the learned Counsel for the appellant that the accident did not take place in the manner as has been disclosed by the claimant and actually the appellant was driving the truck at a moderate speed with care and caution and the truck was proceeding towards Basni. The deceased came from behind and tried to over take the truck from its left side and as there was sand on the left of the road, he dashed against the truck and died on the spot. The death of Ramesh was, therefore, due to rash and negligent driving of the scooter by him and not on account of any rash and negligent driving of the truck by the driver of the truck. It has also been contended by the learned Counsel for the appellants that neither the claimant in her claim petition nor in her statement before the Tribunal has stated that she was dependent upon deceased Ramesh and no evidence has been produced by her to prove her dependency upon her deceased son in the absence of any evidence regarding the dependency of the mother on her deceased son, the loss of dependency cannot be awarded to her. Lastly it has been submitted by the learned Counsel for the appellants that the appellants were not given any opportunity to lead their evidence though three years time was granted to the claimant to produce her evidence whereas only one opportunity was granted to the appellants and as such the award passed by the learned Judge of the Tribunal deserves to the quashed and set aside. The learned Counsel for the respondents, on the other hand, have supported the award passed by the learned Judge of the Tribunal.
(3.) I have considered the submission made by the learned Counsel for the parties.;