IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.1 of 2006. Judgment reserved on: 20.8.2009 Date of Decision: 24.8.2009 Smt.Nirmala Devi and others …. Appellants. Versus. Sh.Narain Dass and others …. Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellants: Mr.G.R. Palsra, Advocate. For the Respondents: Mr.B.M. Chauhan, Advocate for R-3. None for respondents 1&2. Deepak Gupta, J. This appeal under Section 173 of the Motor Vehicles Act is directed against the award of the learned Motor Accident Claims Tribunal (2), Mandi (hereinafter referred to as the Tribunal) in Claim Petition No.10-8 of 1999 dated 24.10.2005 whereby he has dismissed the claim petition filed by the appellants (hereinafter referred to as the claimants). Briefly stated the facts of the case are that the claimants being the widow, two minor children and parents of the deceased Mehar Chand filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for grant of compensation of Rs.10 lakhs before the learned Tribunal. The case set up by the claimants was that the deceased was employed as a labourer on Tractor No. HP-21-0622 which met with an accident on 29.4.1999 at about 1 2 a.m. According to the claimants the deceased was travelling as a labourer in the tractor which was being driven by one Sh.Vinod Kumar, respondent No.2. According to the claimants the tractor was being driven in a very rash and negligent manner and went off the road and fell into a nullah and Mehar Chand who was travelling as a labourer died at the spot. It was specifically stated in the petition that in the FIR registered by the police it has wrongly been mentioned that the deceased Mehar Chand was driving the tractor. Sh.M.P. Sehgal, Advocate put in appearance on behalf of respondents 1&2 on 22.4.2001. He took several opportunities to file reply on behalf of these two respondents but on 27.9.2001 Sh.M.P. Sehgal made a statement at the Bar that despite information given to respondent No.2 the said respondent has not put in appearance and therefore he was proceeded against ex-parte. Reply was filed on behalf of respondent No.1. The owner in his reply took the plea that the deceased was employed as a labourer and was being paid a salary of Rs.1500/- per month. In reply to para 24 it was stated that the accident occurred due to sudden failure of brakes and headlights. It was denied that respondent No.2 ran away from the spot. According to respondent No.1 he had employed respondent No.2 as his driver. The Insurance Company took various pleas including the plea that there is violation of the terms and conditions of the policy. It was alleged that as per the first information report and the police investigation it was the deceased himself who was driving the tractor and therefore it was submitted that the claimants were not entitled to any compensation. The Insurance Company was permitted to contest the claim petition on all grounds and the application filed by it under Section 170 of the Motor Vehicles Act was allowed. 3 The learned Tribunal came to the conclusion that the deceased himself was driving the tractor in question and dismissed the claim petition. Hence, the present appeal filed by the claimants. I have heard Sh.G.R. Palsra, learned counsel for the claimants and Sh.B.M. Chauhan, learned counsel for the Insurance Company. Sh.G.R. Palsra contends that the learned Tribunal has totally mis-read the statement of PW-3 as well as the FIR in question. PW-2 Nirmala Devi is the widow of the deceased. According to her, the deceased was employed as a labourer in the tractor in question and when the tractor was returning from Ner Chowk after repairs the same met with an accident in which her husband died and according to her, her husband was aged 33 years and was earning about Rs.5000/- per month. In cross examination she admits that she was not present at the time of the accident. When she was cross examined by the Insurance Company a suggestion was put to her that her husband was not employed as a labourer but was only travelling in the tractor as a gratuitous passenger. It would be pertinent to mention here that no suggestion was put to her in cross examination that it was her husband who was driving the tractor. The most important material witness is PW-3 Harish Kumar since he first reached the site of the accident. According to him on 29.4.1999 when he was sleeping at his residence, at about 1 a.m. he heard a loud sound as if some vehicle had fallen off the road. He came out of his house and went on to the road. He heard the sound of a person crying in pain. The said person had fallen just below the road and was crying and asking for water. The injured person told him that he had met with an accident with the tractor and gave this witness the telephone number of his residence and asked him to contact his relatives. The witness went back to get water for the injured but by the time he returned the injured person had died. He then rang up the 4 relatives of the deceased on the telephone number given. Other persons also gathered at the site. They saw that the tractor had fallen about 150 meters below the road. The witness lodged the first information report with the police. This portion of the statement is totally in consonance with the first information report. However, this witness adds that there was one other person who was driving the tractor who ran away from the spot. This portion of the statement of this witness appears to be an afterthought only to help the claimants, since this was not stated by him in his statement recorded by the police. RW-1 K.D. Sharma has stated that after the FIR was recorded, untraced report was filed in respect of the case since driver Mehar Chand had died in the accident. He did not investigate the accident and states that according to the record it was Mehar Chand deceased who was driving the tractor. The untraced report was exhibited as RW-2/A. A perusal of this report shows that the police on investigation found that Mehar Chand himself was driving the tractor. To the similar effect is the statement of RW-4 who investigated the matter. This witness however admits that he had no personal knowledge with regard to the fact as to who was driving the tractor at the time of the accident but had reached this conclusion on the basis of the statements of the witnesses. RW-3 is the General Attorney of the owner of the tractor. According to him Vinod Kumar had been engaged as driver with the tractor and was working with them for the last one year. He had sent the Tractor for repair to Ner Chowk along with Vinod Kumar. He states that he had instructed the driver not to give lift to any person. According to him Vinod Kumar had told him that the tractor had met with an accident and he further states that thereafter Vinod Kumar left the job. He states that he had handed over the driving licence of Vinod Kumar and other papers of the truck in question to 5 the Insurance Company. He also states that Mehar Chand was working as a labourer with them off and on and he was being paid daily wages of Rs.50/- per day. In cross examination he states that he cannot say whether Mehar Chand was driving the tractor since he was not at the spot. He admits that at the time of the accident the tractor was empty and nothing was being carried in it. The witness could not produce any record with regard to the engagement of Vinod Kumar as driver of the Tractor. The learned Tribunal on the basis of the above evidence came to the conclusion that since in the FIR it was recorded that Mehar Chand was driving the tractor and the owner has failed to lead any cogent evidence with regard to the engagement of Vinod Kumar as driver it was Mehar Chand who was driving the tractor. In my opinion, the learned Tribunal did not approach the case in a proper manner. The claimants obviously could have no personal knowledge of the person driving the vehicle since the accident did not occur in their presence. In the FIR Ext.PW-1/A there is no mention of the person driving the vehicle. Neither it is mentioned that Mehar Chand was driving the tractor nor it is mentioned that Vinod Kumar was driving the tractor and had run away after the incident. The FIR could not be used to hold that the tractor was being driven by Mehar Chand. Even if that portion of the statement of PW-3 where he states that there was one more person who was driver of the tractor who ran away from the spot is not believed there is nothing to show that it was Mehar Chand himself who was driving the tractor. There is no material on record to show that Mehar Chand had a driving licence. The specific stand of the owner is that he had engaged Vinod Kumar as a driver. It is also the specific stand of the owner that the tractor was handed over to Vinod Kumar who had taken it to Ner Chowk for repairs. In the light of this evidence of the owner presumption can be drawn that it was the driver who 6 must be driving the vehicle in question. The driver Vinod Kumar was not summoned as a witness by any party. He himself was proceeded against ex-parte and did not appear in the Court. There was a specific allegation against him that it was he who was driving the tractor. When he did not appear to contest this allegation, adverse inference can be drawn against him. Vinod Kumar was the best person to testify as to who was driving the vehicle at the time of the accident but he was not examined by anybody. The driver did not step into the witness box and the owner states that it was Vinod Kumar to whom he had handed over the tractor. It is, therefore, proved that Vinod Kumar was driving the tractor at the time of the accident. Admittedly the tractor went off the road and fell about 150 meters below the road. The principle of res ipsa loquitor shall squarely apply to the case and therefore it is held that the accident occurred due to the negligence of the driver of the vehicle. As far as quantum is concerned, it is the admitted case of the parties that the deceased was a labourer. The accident took place on 19.4.1999. At that time the minimum daily-wages of a daily-waged labourer were Rs.60/- to Rs.70/- per day. The income of the deceased is, therefore, assessed at Rs. 2000/- per month. The dependency of the family after deducting the personal expenses of the deceased is assessed at Rs.1400/- per month or Rs.16,800/- per year. The claimants are the widow and two minor children as also the parents of the deceased. Keeping all these factors into consideration, I feel that it would be appropriate to apply the multiplier of 15. Thus, the compensation on account of pecuniary loss works out to Rs.2,52,000/-. The widow is also held entitled to Rs.10,000/- as loss of consortium. The claimants are also held entitled to Rs.13,000/- for funeral expenses etc. and the total compensation works out to Rs.2,75,000/-. On this amount of compensation the claimants shall also be entitled to interest 7 @ 6% p.a. w.e.f. 17.11.1999 the date of institution of the claim petition till payment/deposit of the awarded amount. Next comes the important question as to whether the Insurance Company can be held liable to pay compensation in this case. In my considered view the Insurance Company cannot be held liable. If the statement of the owner, which has been relied upon to hold that Vinod Kumar was the driver of the vehicle, is believed then it is apparent that the deceased was not engaged as a labourer on the tractor in question. Even assuming that the deceased was employed as a labourer by respondent No.3 then also admittedly the Tractor had been sent to Ner Chowk only for repairs and was returning empty after repairs. The Tractor admittedly was to be used only for agricultural purposes and therefore question of employing a labourer on a tractor sent for repairs did not arise. At best the deceased was travelling in the tractor as a gratuitous passenger. The Insurance Company has specifically taken a plea that the deceased was travelling as an unauthorized passenger and not as a labourer. It is clear from the evidence on record that there is some collusion between the claimants and the owner of the vehicle but after going through the entire evidence it is apparent that at the relevant time the deceased was at best a gratuitous passenger in the tractor and not travelling in the same as a labourer. Even the owner has clearly stated that he had only sent the tractor with the driver for repairs and the deceased was not sent along with the tractor. Therefore, the Insurance Company cannot be held liable. Another ground for exonerating the Insurance Company is that though the owner through his General Attorney has appeared in the Court, the driving licence of Vinod Kumar has neither been produced nor proved on record. 8 In view of the above discussion, the appeal is partly allowed. It is held that the claimants are entitled to compensation of Rs.2,75,000/- along with interest as aforesaid from the owner and driver that is Narain Dass and Vinod Kumar who are jointly and severally held liable to pay the same. The Insurance Company is held not liable to pay the compensation. The appeal is disposed of in the aforesaid terms with no order as to costs. August 24, 2009. ( Deepak Gupta ), PV Judge.