RAFIQ, J. - (1.) THESE two appeals are directed against the common order passed by the Motor Accident Claims Tribunal, Sambhar Lake, District Jaipur thereby rejecting two claim petitions filed by the appellants herein in regard to death of driver of truck No. RND- 9257 Gulzar Singh and khalasi of the said vehicle namely Nirmal Singh @ Nimmo, both of whom died in road accident along with two others which took place on 23. 10. 1989. It is borne out from the record that Gulzar Singh was driving the vehicle No. RND-9257. While he was coming from Ajmer towards Jaipur, suddenly truck No. DIL-5262 which was coming from Jaipur towards Ajmer and was being driven by respondent no. 1-Kuljit Singh, collided with the former which resulted into death of aforesaid Gulzar Singh and Nirmal Singh and two others travelling in that truck. In the first information report that was lodged at the instance of khalasi of truck no. DIL-5262, it was alleged that the driver of truck no. RND-9257 was driving the said truck in rash and negligent manner and that resulted into the accident. Subsequently, however, when informant Sita Ram appeared in the witness box before the Tribunal, he stated that accident took place due to negligence on the part of the driver of truck no. DIL-5262. The learned Tribunal, however, held that accident took place due to the negligence and mistake of deceased Gulzar Singh and that since the owner and insurance company of truck no. RND-9257 have not been impleaded as party, the claim petition in both the cases was liable to be dismissed and accordingly rejected.
(2.) I have heard Shri Vinay Mathur, learned counsel for the claimant-appellants and Shri S. R. Joshi and Shri Ganesh Joshi, learned counsel appearing for the respondent insurance company. Shri Vinay Mathur, learned counsel for the appellant has argued that the learned Tribunal has erred in law in not deciding the claim petition on merits inasmuch it has wrongly rejected the claim petition for nonimpleadment of the owner and the insurance company of vehicle RND-9257. It was argued that it is open to the legal representatives of the deceased to maintain claim for compensation against both or against any of them since their liability is joint and severe. The learned counsel relied on the judgments of this Court in Pushpabai Purshottam Udeshi & Ors. vs. M/s. Ranjit Ginning and Pressing Co. & Anr.-1977 ACJ 343, Smt. Nani & Ors. vs. Soma Lal & Ors.- 2006 (2) TAC 775 (Raj.) = (2006 (2) RLW 1329), Mst. Rahmat & Ors. vs. Ramchand & Anr.-2006 WLC (Raj.) U. C. 73, R. S. R. T. C. & Anr. vs. Ghan Shyam & Anr.-2006 WLC (Raj.) U. C. 25, R. S. R. T. C. & Anr. vs. Rajendra Singh & Anr.- 2006 WLC (Raj.) U. C. 57, Omwati & Ors. vs. Mohd. Din & Ors.-2001 (2) TAC (Delhi) 665, Sampat Kunwar Bai & Anr. vs. Gurmeet Singh & Anr.-1988 ACJ 342, New India Assurance Co. Ltd. vs. Avinash & Ors.-1988 ACJ 322, Rajeshwar Prasad vs. Bharat Singh & Ors.-2004 (3) WLC (Raj.) 675. Learned counsel argued that the learned Tribunal erred in law in rejecting the claim petition solely on account that negligence of the truck no. DIL-5262 has not been proved and the accident occurred due to negligence of the deceased Gulzar Singh who was driving truck no. RND-9257. It was argued that mere use of insured motor vehicle would make the insurance company liable for compensation though element of negligence may be absent. Reliance in this connection was placed on the judgment of Supreme Court in Smt. Kaushnuma Begum & Ors. vs. The New India Assurance Co. Ltd. & Ors.-2001 WLC (SC) Civil 116 = (RLW 2001 (2) SC 308 ). Shri Vinay Mathur, learned counsel for the appellants argued that while in the case of death of khalasi Nirmal Singh, the element of negligence, even if it is assumed to be shown on the part of Gulzar Singh, who was driving the truck DIL-5262, would not come in the way of award of compensation. However, in the case of compensation payable to the legal heirs of deceased Gulzar Singh, that could at best be taken as the case of the composite negligence on the evidence which has come on record making the amount of compensation liable to be reduced proportionately to the extent of negligence proved on his part. The learned counsel for this proposition relied on the judgment of this Court in Rajeshwar Prasad vs. Bharat Sangh & Ors.-2004 (3) WLC (Raj.) 675. It was argued that the Tribunal has recorded an erroneous finding about the credibility of sole eye witness Sitaram who has categorically stated that accident took place due to negligence of truck driver Kuljeet Singh who was rashly driving the vehicle no. DIL-5262. His statement has been disbelieved only because his evidence was recorded on commission and Tribunal presumed that he may have acted under the influence of the claimants. It was argued that by the same analogy, there is no reason not to proceed with the assumption that at the time of recording the FIR, Sitaram who was khalasi of the offending vehicle, why would not act under the influence of the driver of the vehicle? The learned counsel submitted that impugned award be set aside and the matter be remanded back for determination of the quantum of compensation. Shri S. R. Joshi, learned counsel appearing for the insurance company opposed the appeal and submitted that in none of the cases, which have been cited by learned counsel for the appellant, has it been held that compensation should be awarded to the claimants of the deceased even if the accident has taken place due to his own negligence. It was argued that the appellants themselves were at fault for not impleading the owner and the insurance company of vehicle RND 9257. The Tribunal did not commit any error in rejecting the claim petition, for it was not properly constituted. It was argued that the presence of informant Shri Sitaram in the First Information Report stood the scrutiny as it was accepted by the investigating agency and no challan was filed against the driver of vehicle no. DIL-5262 and it could not be filed against other driver since he was already dead. Learned counsel submitted that since the appellants failed to produce the site plan which was prepared during investigation of the said FIR, an adverse inference should be drawn against them that the truth about the manner in which the accident took place was withheld from the Tribunal. Learned counsel therefore submitted that the Tribunal was justified in rejecting the claim petition. I have given my thoughtful consideration to the arguments aforesaid and perused the impugned award.
(3.) EVERYTHING would turn on the appreciation of statement of eye witness Sitaram as the issue no. 1 was to the effect whether the accident had taken place due to rash and negligent driving of truck no. DIL- 5262 by respondent no. 1 Kuljeet Singh. Matter has been decided against the claimant-appellants by the Tribunal on interpretation of his statement. The Tribunal has on consideration of his statement, has concluded that this witness was making statement under the influence of claimant because he has gone to Delhi to give his statement before the Commissioner along with Sukhdev Singh, who is brother of the claimant Surendra Kaur, the widow of deceased. Coupled with that assumption, the Tribunal has also drawn adverse inference against the appellant for non production of site plan, which it assumed if was submitted, would have gone against them. I find it difficult to persuade myself to agree with the kind of reasoning adopted by the Tribunal. Merely because statement of the witness Sitaram was recorded on commission and the brother of the claimant accompanied the Commissioner, that would not be a reason enough to entirely discard the testimony of such witness. The statements on commission are required to be recorded in the presence of the representatives of both the parties. Nothing has been mentioned by the Tribunal in the impugned award as to if no one was present from the side of the respondents when the statement of said witness was recorded by the Commissioner. The Tribunal could not proceed on the assumption that the said witness had made his statement under the influence of one or the other party. If this logic is extended further, it can even be applied to what Sitaram stated in his first information report that the accident had taken place due to negligence of the deceased Gulzar Singh and thereabout also, it can be said that since respondent no. 1 Kuljeet Singh was driver of the truck in which he was employed as khalasi, he while acting under his influence, made the statement that the accident took place due to negligence of the deceased Gulzar Singh. In fact, the witness Sitaram in his statement has before the Court stated that he was told by the `truckwala' that if anybody ask him, then he should state that accident has taken place due to the negligence of the other vehicle i. e. RND-9257. The Tribunal however disbelieved that part of the statement and observed that it was not clear from his version as to what was meant by `truckwala'. There was no one else in the truck other than the truck driver and the witness himself as a khalasi and not even the truck owner was accompanying the truck. This distinction drawn by the Tribunal thus appears to be without any difference. If there were only two persons in the truck and they were the driver and the khalasi and when the khalasi is making a statement that he was told by the `truckwala' to attribute the negligence to the other vehicle, the obvious conclusion would be that it was driver himself who told him to make such a statement. Manner in which the findings have been recorded by the Tribunal to completely discard testimony of the eye witness Sitaram in the motor accident claim proceedings cannot be approved of, but at the same time, due to lack of evidence by any other witness about the negligence of driver of other vehicle, except the statement of this witness, the complete negligence cannot be attributed to respondent Kuljeet Singh, who was driving the truck no. DIL-5262. There is then an additional factor which needs to be noticed. While there were four deaths of the driver and khalasi travelling in truck no. RND-9257 and two other passengers, no death whatsoever took place on the side of the truck no. DIL-5262 inasmuch as no evidence has been brought on record that either the driver or even the khalasi sustained any injuries. It can therefore be safely deduced from the facts that truck no. DIL-5262 hit the truck no. RND- 9257 with more amount of force. Yet, however, I am not inclined to hold that there was more amount of negligence on the part of surviving driver than the part of the deceased driver. Negligence on their part can be apportioned in the ratio of 60% on the side of respondent no. 1 and 40% on the part of deceased Gulzar Singh. However, I find that in the present case, in view of the law laid down by catena of decisions cited above, mere non impleadment of owner and insurance company of vehicle no. RND-9257 could not impel the Tribunal to dismiss the claim petition. Moreover, the Tribunal in the present case has not recorded any evidence whatsoever on the question of income and dependency etc. of the deceased in both the claim petitions. In the facts of the case, therefore, I deem it appropriate to remand this matter with the aforesaid findings to the Tribunal for recording appropriate findings on these aspects and determine the quantum of compensation payable to the claimants which shall be liable to be apportioned in the ratio indicated above in so far as claim petition no. 625/98 is concerned. However, the claimant in claim petition no. 831/97 shall be entitled to entire amount of compensation. Both the appeals are allowed in the terms indicated above though with no order as to costs. . ;