{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.519/2007 MEENU & ORS. Vs. BHIKHE KHAN & ORS. Date of order : 22.4.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. Rajesh Panwar, for the appellants. Mr. TRS Sodha } Mr. Varun Gupta }, for the respondents. The decision rendered in this appeal shall also govern disposal of other two appeals being SBCMA No.518/20007 and SBCMA No.517/2007 because all the three appeals arise out of one accident and secondly arise out of one impugned award. 1. This is a misc. appeal filed by claimants under Section 173 of the Motor Vehicles Act (for short hereinafter called “the Act”) against an award, dated 16.11.2006, passed by Motor Accident Claims Tribunal, Jodhpur in Claim Case No.205/05. 2. By impugned award, the three claim petitions filed by claimants under Section 166 of the Act were dismissed by the Tribunal on the ground that accident in question { 2 } occurred due to sole negligence of driver of the Car in which all the three claimants were sitting and hence claimants are not entitled to claim any compensation for the injuries sustained by one claimant and for the death occurred to two persons. In other words, the only ground on which the claim petitions were dismissed was that since the claimant himself was negligent in driving his car which caused accident and hence he can not take benefit of his own wrong in claiming compensation for the injuries sustained so also the death occurred. 3. So the question that arises for consideration in these appeals is whether Tribunal was justified in dismissing the claim petitions filed by appellants (claimants) and if not whether claimants are entitled to claim any compensation and if so to what extent? 4. It is the case of claimants in all the three claim petitions that three persons by name – Badrilal, Gautam Chand and Gaytri Prasad were going in one Car (Indica) (New Vehicle) having Chasis No.600142BVZP20057 and Engine No.475IDIO2BVZP15573from a place called “Basni” to a place called “Mandore” around 11:00 in night. The Car was being driven by Badrilal whereas other two were sitting in car. It is at that time, one truck bearing No.RJ-19/1G-7099 dashed to car in which these three were travelling. It is in this dash, Badrilal and Gautam Chand died whereas Gaytri Prasad suffered { 3 } injuries. It is this incident, which gave rise to filing of three claim petitions under Section 166 of the Act, out of which these appeals arise claiming compensation for the death of two persons named above and for the injuries sustained by third one. According to claimants, the accident in question occurred due to sole negligence of driver of truck and hence all the three claimants were entitled to claim compensation from the owner, driver and insurer of truck (non applicants) jointly and severally on the allegations and proof filed in support of claim petitions. 5. The non-applicants denied the claim of claimants. So far as Insurance Company of Car was concerned, they contended that they were not liable to pay any compensation because the accident occurred due to sole negligence of driver of car. So far as Insurance Company of Truck was concerned, they too contended that accident in question occurred on account of negligence of driver of car and hence no liability of any nature arising out of such accidence can be fastened on the insurer of the truck. 6. It is essentially this issue which was gone into before the Tribunal on the basis of evidence adduced by the parties. As observed supra, the Tribunal held that accident occurred on account of sole negligence of driver of car i.e. Badri Lal and hence all the three claim petitions are liable to be dismissed. In other words, in the opinion of { 4 } Tribunal, since the driver of car himself was responsible for causing the accident and hence they are not entitled to claim any compensation from any of the non-applicants. As a consequence, the claim petitions were dismissed giving rise to filing of these three appeals. 7. So the main question that arises for consideration in these appeals is whether Tribunal was right in holding that accident in question was caused due to negligence on the part of driver of car or it was caused due to negligence on the part of driver of truck. 8. Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to allow the appeals in part and while setting aside of the impugned award of dismissal, allow the claim petitions in part as indicated infra. 9. I have gone through the evidence adduced by the parties. The claimants examined several witnesses, which included one eye witness namely Gaytri Prasad (PW-5), whereas the non-applicants did not examine any eye witness. Perusal of evidence of Gaytri Prasad (PW-5) would clearly go to show that he stated in clear terms that he was one of the occupant of car which was being driven by Badrilal. He further stated that all of a sudden, the offending vehicle i.e. truck came from opposite direction in speed and dashed to car in which all the three were { 5 } sitting. He also stated that the driver of truck was driving very fast which caused accident. 10. In my opinion, there is no reason much less justifiable one to disbelieve the version of Gaytri Prasad. In the first place, he was admittedly an eye witness to the incident. Secondly, why should he speak lie. Thirdly, no evidence was adduced by non-applicants so far as the manner in which the accident in question occurred. Fourthly, the best witness who could be the eye witness to this incident at the behest of non-applicant was the driver of truck, but he did not enter into a witness box. Fifthly, when driver of a truck was party to the claim petition and also got an opportunity to rebut the evidence by entering into the witness box, and if he failed to give any explanation, then this Court has jurisdiction to draw an adverse inference against the non-applicants. Sixthly, it is not a case where non-applicants did not get any opportunity to prove their case, but here is a case where despite an opportunity having been made available, the non-applicants failed to avail of it. It is for this reason, this Court finds good reason to draw an adverse inference against the non-applicants and hold that claimants were able to prove that accident in question occurred due to sole negligence of driver of truck and hence the driver, owner and insurer of truck are held liable to suffer the liability arising out of accident in question. { 6 } 11. In the light of the aforementioned finding, I reverse the finding of Tribunal on this issue and hold in favour of claimants accordingly as mentioned above. 12. This takes me to next question as to how much compensation, each claimants are entitled to claim in their respective claim petitions. 13. Coming first to the appeal No.519/2007. It arises out of claim petition (196/05) and relates to claim of death of Badrilal. He was aged 50 years at the time of death and was engaged in profession of “Astrologer”. The claimants have filed his income tax returns for the AY 2002-2003, 2003-2004 and 2004-2005 (Ex.P-1, 2 and 3). In these three years, the income shown of the deceased is Rs.54,000/-, Rs.64,300/- and Rs.76,390/- respectively. There is no evidence in rebuttal and hence, I accept the evidence adduced by claimants on the issue of income of deceased. 14. In my opinion, taking into account, the income of three years referred above and working out its average, I get Rs.64,000/- (approx). Deducting 1/3rd, I get around Rs.40,000/- (approx). Applying the multiplier of 13 (date of birth is 7.6.56 and date of accident is 16.3.2004 i.e. age 48), I get Rs.40,000/- x 13 = Rs.5,20,000/-. To this, I add by awarding in lump sum a total sum of Rs.25,000/- to claimants towards conventional heads such as funeral { 7 } expenses, loss of love and affection and estate etc. In this view of the matter, I get a sum of Rs.5,20,000/- + Rs.25,000/- = Rs.5,45,000/-. 15. In other words, the claimants are held entitled for a total sum of Rs.5,45,000/- by way of compensation for the death of Badrilal. 16. Learned counsel for the respondents, however, vehemently contended that award of any compensation by this Court would be a bonanza to claimants and hence it should not be done. I do not agree to this submission because on the facts found proved if the claimants are held entitled to get reasonable and lawful compensation, then in such event, it should be granted to them. It does not in my view call a “bonanza” to claimants but a just compensation awarded to them. 17. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. In other words, the claimants are held entitled for the total compensation of Rs.5,45,000/- from the respondents jointly and severally. The enhanced awarded sum will carry interest at the rate of 6% p.a. from the date of application till realization. All other findings are upheld being not under challenge. No cost. { 8 } 18. This takes me to next appeal being SBCMA No.518/07. It arises out of claim case No.205/05 and relates to claim of Gautam Chand, who died in the said car accident. He was 30 years and was working as cable operator. He was survived by widow, two minor children and mother. Though according to claimants, deceased was earning Rs.5,000/- per month by way of monthly salary from cable operator, I am inclined to hold that his monthly salary was Rs.3,000/-. It is for the reason that documents filed by claimants on this issue do not prove that his monthly salary was Rs.5,000/-, though it is proved that he was serving with the cable operator. In this way, his monthly salary is taken to be Rs.3,000/- , whereas yearly is Rs.36,000/-. Deducting 1/3rd, I get Rs.2,000/- monthly i.e. Rs.24,000/- yearly. Applying the multiplier of 18 (because age is 30 years), I get Rs.24,000 x 18 = Rs.4,32,000/-. To this, I add by awarding in lump sum a sum of Rs.25,000/- towards loss of estate, love and affection, funeral expenses and accordingly get a sum of Rs.4,32,000 + Rs.25,000 = Rs.4,57,000/-. 19. In other words, the claimants are held entitled for a total sum of Rs.4,57,000/- by way of compensation for the death of Badrilal. 20. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. In other words, the claimants are held { 9 } entitled for the total compensation of Rs.4,57,000/- from the respondents jointly and severally. The enhanced sum will carry interest at the rate of 6% p.a. from the date of application till realization. All other findings are upheld being not under challenge. No cost. 21. This takes me to the next appeal being SBCMA No.517/07. It arise out of claim case No.465/05 (wrongly mentioned in appeal memo as 197/05). It relates to claim of one Gaytri Prasad, who suffered injuries on his body in the accident. Though he has submitted his claim for the injuries sustained, but it is noticed on the basis of exhibits (Ex.P-1 to Ex.P-18) and in particular medical papers that he did not suffer any major injury nor it resulted in any kind of disability (whether partial or permanent) in his body. He did undergo medical check up and was advised some medical test, but in totality, no kind of injury was noticed on his body by the doctor. 22. Taking into account, the simple injuries and medical treatment received and amount spent, a total sum of Rs.25,000/- towards medical expenditure and pain and suffering etc. is just and reasonable compensation, which can be awarded to claimant. In this view of the matter, the claimant is held entitled for Rs.25,000/- by way of compensation for the injuries, pain and sufferings sustained by him in the accident. { 10 } 23. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above. In other words, the claimant is held entitled for the total compensation of Rs.25,000/- from the respondents jointly and severally. The enhanced sum will carry interest at the rate of 6% p.a. from the date of application till realization. All other findings are upheld being not under challenge. No cost. (A.M.SAPRE ),J. /Anil/