HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR C.M.A. No.1102 OF 1997 DATED:06-08-2009 BETWEEN: Smt. Neelam & 2 others. …Appellants AND Mr.Iqbal Bin Hussain & Another. …Respondents This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR C.M.A. No.1102 OF 1997 JUDGMENT: (Per Hon’ble Sri Justice B.Chandra Kumar) This appeal by the claimants is directed against the order of the Motor Accidents Claims Tribunal-cum-District Judge, Ranga Reddy District in O.P.No.805 of 1992, dated 8.4.1996 whereby, as against the claim of Rs.22,50,000/- on account of death of one Bankatlal Agarwal (hereinafter referred to as ‘deceased’), the Tribunal awarded compensation at Rs.1,22,000/- by apportioning negligence at 50:50 between the driver of the offending lorry and the deceased. The brief facts of the case are as follows: The appellants will be referred as claimants hereinafter. The 1st claimant is the wife; 2nd claimant is the elder son and 3rd claimant is the father of deceased. On the fateful day i.e. on 18.6.1992 at about 11.00 hours while the deceased was proceeding in the car bearing No.CKS 7830 to his textile factory in industrial estate, Kothur, Mahaboobnagar District along N.H.No.7 and when he reached near R.T.C. Checkpost at Shapur Village, the lorry bearing No.ATT 7609, being driven by its driver in a rash and negligent manner at high speed came from opposite direction and dashed against the car, as a result of which, the deceased sustained grievous injuries and died on the way to the hospital. Police of Shamshabad registered a case in Crime No.111 of 1992 and arrested the driver of the lorry and after completing the investigation, laid the charge sheet against the driver of the lorry. The further case of the claimants-appellants is that the deceased was an Engineering Graduate and was Director of Naresh Textiles Factory, Kothur, drawing a salary of Rs.2,000/- per month and was getting profits of Rs.10,000/- per month from the Companies of Radhakrishna Kandagiri Sugar Factory, as proprietor of Shyam Textiles and from his agricultural farms at Timmapur. The deceased was also consultant to many educational institutions in twin cities and was getting a sum of Rs.1500/- per month as consultant. He was also doing other business of his own and was earning Rs.12,000/- per month. The deceased was aged about 37 years and hale and healthy as on the date of accident. Thus, the claimants-appellants claimed a total compensation of Rs.22,50,000/-. 1st respondent is the owner of the lorry and 2nd respondent is the insurance company with which the lorry was insured. Both the respondents resisted the claim of the claimants by filing separate written statements. They denied the averments of the claimants with regard to the age, occupation and income of the deceased. They also denied the narration of the claimants with regard to the manner of occurring the accident. Their further case is that the deceased himself drove the car at high speed while in a drunken condition and came to wrong side and dashed against the lorry and that lorry driver is not responsible for the accident. The Tribunal framed the following issues for trial: 1. Whether the accident occurred on 18.6.1992 at 1300 hours on the High Way road No.7 near dargah RTC checkpost, Shapur, R.R.District was due to the rash and negligent driving of the driver of lorry No.ATT 7609? 2. Whether the Petitioners are entitled to any compensation ? if so, to what amount and against whom? 3. To what relief? In order to prove the case of the claimants, 1st claimant was examined as P.W.1; 3rd claimant was examined as P.W.2 and an eyewitness to the accident was examined as P.W.3 and Exs.A.1 to A.21 were marked. None were examined on behalf of the respondents but a copy of insurance policy was marked as Ex.B.1. The Tribunal on issue No.1, by applying the principle of res ipsa loquitor came to the conclusion that the deceased and the lorry driver both were responsible for the accident and accordingly, apportioned the negligence equally i.e. 50:50 between them. On issue No.2, the Tribunal came to the conclusion that as per the contents of Ex.A.9 salary of the deceased was only Rs.24,000/- per annum and as far as the claim of other income of deceased is concerned, it was held that there is no satisfactory evidence to prove the same and that the benefits and the profits from the business would continue to come to the family of the claimants and that there would not be any loss of income from the other business. The Tribunal after deducting 1/3rd towards personal expenses, arrived the loss of earnings at Rs.16,000/- per annum and by adopting the multiplier ‘14’, arrived the total loss of earnings at Rs.2,24,000/-. The Tribunal also deducted 50% towards the contributory negligence of the deceased and awarded Rs.1,12,000/- towards loss of dependency. That apart, the conventional amount of Rs.15,000/- towards loss of consortium to 1st claimant and Rs.5,000/- towards loss of estate were awarded. Learned counsel for the claimants has submitted that when the claimants examined eyewitness-P.W.3 and when P.W.1 had categorically deposed that the accident occurred due to the rash and negligent driving of the driver of the lorry and when the respondents failed to adduce any rebuttal evidence, the Tribunal ought not to have applied the principle of res ipsa loquitor. It is further submitted that Ex.A.2- certified copy of panchanama of scene of accident and Ex.A.3-rouch sketch of scene of accident cannot be relied upon since the position of vehicles after the accident is not correctly shown in those documents. His main submission is that the Tribunal committed an error in not appreciating the oral evidence of P.W.3, which is corroborated by Ex.A.6, C.C. of charge sheet and Ex.A.1 C.C. of F.I.R. As far as the income is concerned, the learned counsel submitted that since the deceased was doing business and getting income from Sham Textiles and shares from Radha Krishna Kandasari Sugar Factory, the Tribunal ought to have taken the income from the other business also in determining the total earnings of the deceased. 1st respondent-owner of the lorry was served in condone delay petition by way of substitute service and 2nd respondent- insurance company was served notice in the appeal, but they have not chosen to put up appearance. We have gone through the material available on record. The points that arise for consideration in this appeal are: 1. Whether the accident occurred due to the rash and negligent driving of the driver of the lorry or whether there was any contributory negligence on the part of the deceased in occurring the accident? 2. Whether the compensation awarded by the Tribunal is just and reasonable and whether the claimants are entitled for any enhancement? POINT NO.1: Admittedly, the claimants examined P.W.3, who claims to have witnessed the accident. P.W.1 is the wife of the deceased. She is not an eyewitness to the accident, however, the relevant documents Ex.A.1-C.C. of F.I.R.; Ex.A.2- C.C. of panchanama of scene of offence; Ex.A.3-C.C. rough sketch of scene of offence; Ex.A.4-C.C. of inquest panchanama; Ex.A.5-C.C. of post-mortem certificate; and Ex.A.6-C.C. of charge sheet have been marked in her evidence. P.W.2 is the father of the deceased. He is also not an eyewitness to the accident. P.W.3 claims to be the eyewitness to the accident. According to him, on the date of accident, he was proceeding from Hyderabad to Kothur on his motorcycle and the deceased was proceeding in his car ahead of him. According to him, when his vehicle was stopped for checking by R.T.O. officials at Shapur checkpost, the deceased stopped his Maruti Car and enquired with him as to why he (P.W.3) had stopped his vehicle. Then, according to P.W.3, he was following the car of the deceased. The specific case of P.W.3 is that when they reached near Dargah on highway, the offending lorry which was coming from opposite direction, being driven by its driver at a rash and negligent manner at high speed came and dashed against the car. According to him, the deceased was moving his Car towards his left side and that he was also moving his motorcycle towards his left when the lorry came at high speed in a rash and negligent manner and dashed against the Maruti Car. According to him, he was at a distance of 50 to 60 yards from the place of accident at that time. He further deposed that he shifted the deceased to the hospital where the doctors declared that the deceased was brought dead. Then he went to police station and lodged Ex.A.1 report. The further evidence of P.W.3 shows that the distance between the place of accident and the checkpost is about 300 yards. He denied the suggestion that the accident occurred in the middle of the road. P.W.3 admitted that he is related to the deceased. Merely because P.W.3 is related to the deceased, his evidence cannot be discarded. Ex.A.1 shows that P.W.3 lodged the report to the police. Admittedly, there is no contra evidence in this case. The respondents had not chosen to examine the driver of the lorry. In the absence of any contra evidence, we have to consider the evidence available on record i.e. the evidence of P.W.3 and the documentary evidence. Admitted case is that the lorry was proceeding from Shadnagar side towards Hyderabad side and the lorry was coming from opposite direction. The learned Tribunal came to the conclusion that the vehicles turned completely to the opposite direction before they stopped after collision and therefore, it is a case of head on collision. As seen from sketch, the maruti car was lying on the middle of the Road facing towards Hyderabad. The lorry was found facing east across the road. Admittedly, respondents have not let in any evidence in support of their case. The mere pleadings without evidence have no value. How the accident occurred was within the knowledge of the driver of the lorry. For non-examination of driver of the lorry adverse inference has to be drawn against the respondents. Merely by looking to the position of the vehicles after the accident, it cannot be said that there was contributory negligence by the deceased. The respondents have not examined any other witness to speak about the scene of offence after the accident. Admittedly, the police filed charge sheet against the driver of the lorry. There is no evidence to say that the accident occurred or that there was head on collision due to the negligence of the driving of both the vehicles. In the absence of satisfactory evidence there appears to be no justification in holding that there was contributory negligence on the part of the deceased. Therefore, the Tribunal is not justified in applying the principle of the maxim ‘res ipsa loquitor’ in this case in arriving to the conclusion that there was contributory negligence on the part of the deceased. The general purport of the words res ipsa loquitor is that the accident speaks for itself. The attending circumstances themselves prove the negligence. The normal rule is that the claimants have to prove the negligence of the driver of the vehicle involved in the accident. There may be few cases in which the claimants may prove that the accident occurred, but they may not be in a position to say how it occurred. In such cases, the principle of res ipsa loquitor apply. It is applicable only when the nature of accident and the surrounding circumstances lead to the conclusion that the accident would not have happened had the driver of the vehicle not negligent. For example, where in a case the vehicle left the road and dashed against a road side tree or rammed into a road side hotel or came to the wrong side of the road. Thus where the circumstances themselves show that the driver was rash and negligent, then the maxim res ipsa loquitor applies. When it is within the knowledge of driver of the vehicle, the burden shifts to the other side that accident occurred not due to the negligence of the driver (see Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. Ltd. AIR 1977 SC 1735). I n Syed Akbar v. State of Karnataka[1], the Supreme Court held that: “The Rule of res ipsa loquitur in reality belongs to the law of torts. Where negligence is in issue, the particular circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. The event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. Further the event which caused the accident must be within the defendant’s control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. More over, the res must not only bespeak negligence, but pin it on the defendant. But in India the rules of evidence are governed by the Indian Evidence Act, 1872 under which the general rule is that the burden of proving negligence as cause of the accident, lies on the party who alleges it. But that party can take advantage of presumptions which may be available to him, to lighten that burden. They are (i) Permissive presumptions or presumptions of fact; (ii) Compelling presumptions or presumptions of law, and (iii) Irrebuttable presumption of law. Presumptions of fact are inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the constitution of the human mind, the springs of human action, the usages and habits of society and ordinary course of human affairs. Section 114 is a general section dealing with presumptions of this kind. The Court has discretion on the facts of each case to draw such presumptions of facts. There is no such discretion in case of presumptions of law. This distinction affects the burden of proof. While “presumptions of fact” merely affect the ‘burden of going forward with the evidence’, ‘presumptions of law’, however go so far as to shift the legal burden of proof so that, in the absence of evidence sufficient to rebut it on a balance of probability a verdict must be directed.” Even if we exclude the evidence of P.W.3, Exs.A.1 to A.5 support the case of claimants and in the absence of any contra evidence, we have to held that the accident occurred due to rash and negligent driving of the driver of the lorry. POINT NO.2: As far as this point is concerned, in Ex.A.9, the income of the deceased was shown as Rs.24,000/- per annum just prior to his death. Ex.A.10 is the original partnership deed which shows that deceased was a partner of Radha Krishna Kandagiri Sugar Factory. According to P.W.1, deceased was associated with Sham Textiles and Naresh Text Print at Kothur. As far as partnership business or other business is concerned, the family of the deceased would continue to hold the same and they would be getting profits out of partnership business. The actual loss would be the loss of managerial services of the deceased or the salary of the deceased. There may be some reduction of income in some cases. Therefore, the total income from the business or agriculture cannot be taken as loss of income. P.W.1 deposed about their family expenditure. According to P.W.1, they were paying Rs.3,000/- per month towards school fee of second petitioner and Rs.5,000/- per month for engaging a private tutor to second petitioner and Rs.5,000/- per month towards medical expenditure for 3rd petitioner and this expenditure would reflect the earnings of the deceased. She filed Ex.A.18 school certificate in support of her case. The expenditure incurred by a family towards educational expenses or medical expenses cannot be taken as criteria for deciding the income of the deceased. A family may be spending huge amounts for the educational, medical or marriage expenses out of the total income of the family derived from different sources. In case of dire necessity, the family may even borrow and spend amount. Therefore, the expenditure incurred by a family cannot be taken as basis for determining the earnings of the deceased. Therefore, the income of the deceased or the value of his managerial services alone have to be taken into consideration. In Ex.A.9 salary of deceased was shown as Rs.24,000/- per annum. Therefore, the income of the deceased can be taken at Rs.24,000/- per annum as reflected in Ex.A.9 and after deducting 1/3rd therefrom towards personal income, the net loss of dependency per annum can be determined at Rs.16,000/-. As per the recent decision of the Apex Court in Smt. Sarla Verma & Others v. Dehli Transport Corporation & Another[2], the appropriate multiplier applicable to the age group of 31 to 35 is ‘16’. Therefore, by applying the multiplier 16, the total loss of dependency comes to Rs.2,56,000/-. The conventional amount of Rs.20,000/- awarded by the Tribunal under the heads of loss of consortium and loss of estate needs no interference. Thus the claimants-appellants, in all, are entitled to total compensation of Rs.2,76,000/-. Out of this amount, the 1st claimant and 2nd claimant shall take Rs.1,10,000/- each and remaining amount of Rs.56,000/- shall be paid to 3rd claimant. The enhanced compensation shall be deposited within two months from today failing which, it will carry interest at the rate of 6% per annum. In the result, the impugned award is accordingly set aside and the appeal is allowed to the extent indicated above. No order as to costs. _______________ A. GOPAL REDDY, J. __________________ B.CHANDRA KUMAR, J. AUGUST 06, 2009 Tsr. [1] (1980) 1 SCC 30 [2] 2009(3) Supreme 487