IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAOs No.385 of 2008, 43 of 2007, 376, 377, 378, 379, 380, 381, 382 383, 384, 386, 387, 388, 389, 390, 391, 392, 393 & 394 of 2008. Date of decision : June 21, 2011 1. FAO No.385/2008 Prem Singh versus Kanta Devi and others. 2. FAO No.43/2007 Prem Singh versus Narayan and others. 3. FAO No.376/2008 Prem Singh versus Maina @ Guno and others. 4. FAO No.377/2008 Prem Singh versus Inder Singh and others. 5. FAO No.378/2008 Prem Singh versus Deep Chand and others. 6. FAO No.379/2008 Prem Singh versus Maina @ Guno and others. 7. FAO No.380/2008 Prem Singh versus Tulsa and others. 8. FAO No.381/2008 Prem Singh versus Mohan Singh and others. 9. FAO No.382/2008 Prem Singh versus Joginder Singh and others. 10. FAO No.383/2008 Prem Singh versus Jagpal and others. 11. FAO No.384/2008 Prem Singh versus Hiro Devi and others. 12. FAO No386/2008 Prem Singh versus Jagia Ram and others. 13. FAO No.387/2008 Prem Singh versus Mehandi Devi and others. 14. FAO No.388/2008 Prem Singh versus Praveen Prashar and others. …2… 15. FAO No.389/2008 Prem Singh versus Maina and others. 16. FAO No.390/2008 Prem Singh versus Gulab Singh and others. 17. FAO No.391/2008 Prem Singh versus Bishi Devi and others. 18. FAO No.392/2008 Prem Singh versus Kiran Kumar and others. 19. FAO No.393/2008 Prem Singh versus Master Virender and others. 20. FAO No.394/2008 Prem Singh versus Jangvir Singh and others. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 For the appellant(s) : Mr. G.D. Verma, Senior Advocate, with Mr. Romesh Verma, Advocate. For the Respondents- : Ms Devyani Sharma, Mr. Neeraj Claimants Gupta & Hoshiar Kaushal, Advocates. For respondent Jagdish : Ms Shikha Thakur, Advocate, vice Chand Mr. Karan Singh Kanwar, Advocate. For respondent Madan : Mr. Bimal Gupta, Advocate. Singh For Insurance Company: Mr. G.D. Sharma, Advocate. Deepak Gupta, Judge(Oral) These twenty appeals are being disposed of by one common judgment since all these appeals arise out of one accident. 2. The undisputed facts of the case are that Bus No.HP-07-3000 is owned by Dr. Prem Singh. It is also not Whether reporters of the local papers may be allowed to see the judgment? …3… in dispute that this Bus was insured with the Oriental Insurance Company. Another undisputed fact is that this Bus met with an accident on 18th November, 2000, when it went off the road and fell into a Khud at a place called Kharar, near Renuka in District Sirmour. A number of persons sustained injuries and some persons unfortunately expired in the accident. As many as 20 claim petitions were filed by the claimants, who were either the injured themselves or the legal heirs of the deceased. 3. The main dispute, which has arisen in these cases, is - who was driving the Bus at the relevant time. According to the owner, it was Jagdish, who was his driver and Jagdish, admittedly, had a valid driving licence to drive a Bus and, therefore, the Insurance Company should have been held liable to pay the compensation. On the other hand, the stand of the Insurance Company is that it was not Jagdish but Madan Singh who was driving the vehicle at the time of the accident. Since on verification, the driving licence of Madan Singh was found fake, the Insurance Company could not have been held liable to pay the compensation. 4. The learned Tribunal awarded compensation in all the cases and held the owner and driver Madan Singh liable to pay the compensation, since the learned Tribunal found that the case set up by the insured-owner was a …4… false case and in fact the Bus was being driven by Madan Singh and not by Jagdish. Aggrieved by the awards of the learned Tribunal, the owner has filed these twenty appeals. 5. I have heard Mr. G.D. Verma, Senior Advocate, learned counsel for owner Dr. Prem Singh, Mr. G.D. Sharma, learned counsel for the Insurance Company and the learned counsel for the claimants. 6. The only question, which arises for decision in these cases, is – “who was driving the Bus at the time when the accident took place?”. As mentioned above, as many as seven claim petitions were filed by the injured persons. These are Claim petitions No.26-N/2 of 2001, 33-N/2 of 2001, 35-N/2 of 2001, 38-N/2 of 2001, 47-N/2 of 2001, 57-N/2 of 2001 and 2-N/2 of 2003. 7. Claim Petition No.26-N/2 of 2001 was filed by Narain Singh, who appeared as PW-10. He had not named the driver in his petition. His statement is totally silent as to who was driving the Bus. PW-15 Jagia Ram is petitioner in Claim Petitin No.33-2/N of 2001. In his petition he had averred that Madan Singh was driving the Bus in question. However, while appearing in the witness-box he was silent about the identity of the driver in his examination-in-chief. He was not cross-examined by the owner and the driver at all. While being cross- examined by respondent No.3-Insurance Company, he …5… stated that he had given the name of Madan Singh as driver of the Bus, on the basis of what he had heard at the time of the accident. Claim Petition No.35-2/N of 2001 was filed by Mohan Singh, who appeared as PW-7. In his petition he had stated that Madan Singh was driving the vehicle in question. However, while appearing in the witness-box he stated that he does not know who was driving the vehicle at the relevant time. Claim Petition No.38-N/2 of 2001 was filed by Smt. Mehandi Devi, who appeared as PW-8. She had named Madan Singh as the driver in her petition, but while appearing in the witness- box she stated that she was not aware who was driving the vehicle. 8. The most important evidence is the statement of PW-16 Praveen Prashar, who is the petitioner in Claim Petition No.47-N/2 of 2001. He is a teacher in a school in the area in question. In the petition he had named Madan Singh as the driver of the Bus. While appearing in the witness-box he stated that it was Jagdish who was driving the Bus in question. This witness was subjected to cross- examination by the Insurance Company and in the cross- examination he admitted that he is a teacher. According to him he had not named Madan Singh at all and he stated that he did not know any Madan Singh. He, however, admitted that he had signed and verified the claim petition in which Madan Singh is arrayed as a …6… respondent. This witness is also the person on whose instance the FIR has been recorded. True it is that this witness has not been confronted with the FIR but the FIR has been proved on record by Investigating Officer PW-21 Khalil Ahmed as well as RW-6 ASI Krishan Kumar, who have stated that the FIR was lodged at the instance of PW-16 Praveen Prashar and he while getting the FIR recorded had clearly stated that Madan Singh was the driver of the vehicle. 9. PW-25 Joginder Singh had filed Claim Petition No.57-N/2 of 2001. In this claim petition, owner Dr. Prem Singh, Jagdish and Madan Singh all are impleaded as respondents alongwith the Insurance Company. However, in the petition there is no averment as to who was driving the vehicle at the relevant time. This claimant while appearing in the witness-box stated that he was employed as Conductor of the Bus. This does not appear to be true since in the claim petition there is no mention about his employment as Conductor. In his claim petition he states that he is an employee and an agriculturist. If he was Conductor of the Bus he would have definitely mentioned this fact in the claim petition. 10. Inder Singh, who is the claimant in Claim Petition No.2 of 2003, has, both in his petition as well as his statement, stated that Jagdish was the driver of the Bus in question. It is, however, important to note that he …7… filed the claim petition after a lapse of two years. He had not suffered any major injury and even as per his own version he had suffered a fracture. This witness produced no doctor but only produced document Ex. PW-1/A, which showed that he had suffered some minor injuries. 11. Jagdish Chand appeared as RW-1. According to him, he was the driver of the Bus and he was in fact driving the Bus at the relevant time. He stated that the accident took place when the front leaf spring of the vehicle broke suddenly. This witness has been cross- examined and admitted that his marriage was fixed for 26th November. He has, however, denied that he had proceeded on leave and was not present at the site of the accident when the same took place. 12. RW-4 Vikas Goar proved that the driving licence issued in favour of Madan Singh is fake. 13. The most important evidence is of RW-6 Krishan Kumar, the Investigating Officer. According to him he had conducted the investigation of the case and it was found that the accident took place due to the rash and negligent driving of the Bus by Madan Singh. He also testified that during the course of investigation it was found that the licence issued in favour of Madan Singh was fake. He in cross-examination admitted that when during the investigation he recorded the statement of Mittar Singh, the General Power of Attorney of the owner …8… Dr. Prem Singh, the witness informed that the vehicle was being driven by Jagdish. He also proved the statement of Mittar Singh, recorded under Section 161 of the Code of Criminal Procedure, Ex. RW-6/A. However, in my view this statement cannot be read in evidence, since Mittar Singh, who had made this statement, is alive, and any party who wants to rely on this statement should have produced said Mittar Singh in the Court. As already mentioned above, this witness has clearly stated that the FIR Ex. PW- 21/A was lodged at the instance of PW-16 Praveen Prashar and the said Praveen Prashar is a teacher and knows both Madan Singh and Jagdish. He denied the suggestion that Praveen Prashar had not named Madan Singh. He in cross-examination was asked a question as to why Jagdish was impleaded as accused in the criminal case. His explanation is that Jagdish was impleaded as an accused because he had negligently handed over the vehicle to Madan Singh. 14. This is the entire evidence, which is relevant to the main issue in hand. There is no manner of doubt that before the Court most of the claimants have tried to support the owner of the vehicle. 15. There is an old saying that men may lie but documents and circumstances do not. RW-6 Krishan Kumar has proved on record a list of the persons who died and received injuries in the accident. This list is …9… Ex. R-2. In this list the name of Jagdish does not find mention but the name of Madan Singh is entered in the list. It cannot be believed that when a Bus goes off the road and falls 60 feet down into the Khud, the driver could have escaped without any injury. Madan Singh has been named as the driver and his name finds mention in this list, which clearly shows that he was in the Bus. Some of the witnesses would have the Court believe that they named Madan Singh in the claim petition only, on account of the fact that some people at the place of accident were saying that the driver is Madan Singh. It has been strenuously urged that once the witnesses have stated this fact, it means that their evidence is hearsay. The matter is not so simple. 16. The claim petitions were not filed within a day or two of the accident, but these were filed much later after the accident. Most of the petitions have been filed in February 2001, i.e. about three months after the accident. The learned counsel engaged by the claimants would have no personal knowledge of the case and he would have asked the claimants who was driving the vehicle. The explanation given by some of the claimants that they had given the name of Madan Singh on the basis of what they had heard cannot be accepted since even till the time when the witnesses appeared in the witness-box they did not even amend the names …10… mentioned in the claim petitions. It would also be important to point out that it is the injured alone who were the eye-witnesses and out of the seven claim petitions filed by the injured, in one no person was named, in four Madan Singh alone was named, in one both Madan Singh and Jagdish were named and in the last, which has been filed two years later, only Jagdish was named as driver. This clearly indicates that at the time of the accident and even till the time when the earliest claim petitions were filed, everyone was of the view that Madan Singh was driving the vehicle. 17. The issue basically is whether Jagdish, who stated that he was driving the vehicle at the time when the accident took place, should be believed or not. I am of the view that no reliance can be placed on the statement of Jagdish. It is interesting to note that owner Dr. Prem Singh, and both the alleged drivers Jagdish and Madan Singh were all represented by one counsel. If Madan Singh was not the driver there was apparent conflict of interest between Madan Singh and Jagdish and they would not have engaged the same counsel. In fact even propriety demanded that same counsel should not have represented the owner and both the drivers. Be that as it may, the fact that the owner and both the alleged drivers were represented by one counsel is clearly indicative of the fact that they together have come with a …11… false version. I am of the view that this is a false case set up only to shift the burden of paying the compensation on the Insurance Company. 18. The owner of the vehicle intentionally did not step into the witness-box. Even his General Power of Attorney did not step into the witness box. An adverse inference can be raised on this ground alone. Further, the owner withheld the best evidence, which was available with him, namely the Log Book of the vehicle and the documentary evidence showing who was the person engaged as a driver. When a person runs a transport service or a Bus and engages a driver to run the same he will obviously keep complete documentary record. There will be record showing how much fuel has been purchased, what amount has been spent on repairs, when did the Bus leave a particular station etc. There must be documentary evidence of payment of salary to the driver and the conductor. All these facts are either recorded in the Log Book or some other record. The owner was the best person to produce such evidence and when such evidence is withheld from the Court an adverse inference will have to be drawn. 19. Another very important aspect of the matter is that Madan Singh, who was represented by the same counsel, has not appeared in the witness-box to state whether he was driving the vehicle or not. …12… 20. For the reasons stated above, I am of the considered view that the learned tribunal was fully justified in holding that the Bus was being driven by Madan Singh. Since Madan Singh was not holding a valid driving licence and the owner had not spoken a word whether he had verified the licence or not, the Insurance Company cannot be fastened with the liability to pay the compensation. 21. Mr. G.D. Verma, learned Senior Advocate, lastly challenged the quantum of compensation awarded in some cases. In my view the compensation awarded in most of the cases is absolutely just and in some others on the lower side. Only in two cases the compensation awarded by the learned Tribunal calls for interference by this Court. 22. In FAO No.384 of 2008, arising out of Claim Petition No.34-N/2 of 2001, it was alleged that the deceased was aged 40-45 years and was working as mason, earning `150/- to `200/- per day. The learned Tribunal took the earnings of the deceased at `4,500/- per month and assessed the loss of dependency at `3,200/- per month and awarded total compensation of `5,10,000/- I am of the view that the learned Tribunal was not justified in awarding the said compensation, only on the basis of the bald statement of the widow of the deceased. There was nothing to show that the deceased was …13… working as mason. Even if it be assumed that he was working as a mason, in a rural area, he would not be employed for 365 days in a year. Taking all these factors into consideration, I am of the view that in the year 2000, when the accident took place and the minimum wages were `70/- per day, the income of the deceased can be assessed at `3,000/- per month and after deducting 1/3rd for the personal expenses of the deceased, the dependency of the family works out to `2,000/- per month, or `24,000/- per year. Deceased was aged 40-45 years and following the judgment of the Apex Court in Sarla Verma (Smt) and others versus Delhi Transport Corporation and another, (2009) 6 SCC 121, the appropriate multiplier would be 14 and the compensation works out to `3,36,000/-. In addition thereto the widow is also awarded a sum of `14,000/- for loss of consortium. The claimants are also awarded `10,000/- as funeral expenses etc and `10,000/- on account of conventional damages. Therefore, the total compensation works out to `3,70,000/-. The award of the learned Tribunal is modified and compensation reduced from `5,10,000/- to `3,70,000/-. 23. The other case which calls for interference is FAO No.383 of 2008, arising out of Claim Petition No.49- N/2 of 2001. In this case, it was pleaded that the deceased was a driver and getting salary of `3,000/- per …14… month. The claimants were the mother and minor siblings of the deceased. The mother died during the pendency of the claim petition itself. The learned Tribunal assessed the income of the deceased at `4,800/- per month, by adding a sum of `60/- per day, which was being given to the deceased by the owner for personal expenses. Applying the multiplier of 17, the learned Tribunal has assessed the total compensation at `3,36,400/-. In my view this compensation is on the higher side. So far as the daily expenses are concerned, even if it is accepted to be correct, those would have been utilized by the deceased himself because by its very nature, the amount was meant to be utilized by the deceased daily. Normally, we would deduct 50 per cent for the personal expenses of the bachelor but keeping in view the fact that the deceased had a large family with a number of minor siblings, after deducting 1/3rd for personal expenses of the deceased, the dependency is worked out at `2,000/- per month or `24,000/- per year. However, the multiplier of 17 is highly excessive. All the minor siblings were more than 10 years of age. The mother was already of 60 years and she died during the pendency of the claim petition. Therefore, in my opinion the maximum multiplier which could have been applied in this case is 8. Applying this multiplier of 8, the claimants are held entitled to compensation of `1,92,000/-. In …15… addition to this the claimants are also held entitled to `10,000/- as funeral expenses and `10,000/- as conventional damages. The total compensation is worked out to `2,12,000/-. The compensation is, therefore, reduced from `3,36,400/- to `2,12,000/-. 24. In view of the above discussion, all the appeals except FAOs No.383 and 384 of 2008 are dismissed. As far as FAOs No.383 and 384 of 2008 are concerned, the compensation in these cases is reduced from `3,36,400/- to `2,12,000/- and from `5,10,000/- to `3,70,000/-, respectfully. Needless to say that the claimants are entitled to interest on this amount, as awarded by the learned Tribunal. All the appeals stand disposed of. Pending applications also stand disposed of. June 21, 2011(sd) ( Deepak Gupta ), J