{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.507/1997 SMT. HEMLATA & ORS. Vs. HAJARI SINGH & ORS. Date of order : 29.4.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. Rajesh Panwar, for the appellant. Mr. Dinesh Mehta, for the respondents. The decision rendered in this appeal shall govern disposal of connected appeal being SBCMA No.519/1997 because both appeals arise out of one accident and secondly arise out of one impugned award. 2. This is a misc. appeal filed by claimants under Section 173 of Motor Vehicles Act (for short called “the Act”) against an award dated 3.4.1997 passed by MACT, Balotra in Claim Case No.22/95. 3. By impugned award, the Tribunal dismissed the claim petition filed by the claimants holding that since deceased/ injured were responsible for causing the accident and hence they are not entitled to claim any compensation from non-applicants. So the question that { 2 } arises for consideration in these appeals is whether Tribunal was justified in dismissing the claim petitions of claimants. 4. Facts of the case are these. 5. It is the case of claimants in both the claim petitions that on 30.8.1994, Soohanlal (injured) and one Babulal (deceased) were travelling in one private car bearing No.RJ-19/C-04760 from Balotara to Bhilwara. The car was being driven by one Sanwal Ram. According to claimants, the car met with an accident in the wee hours with one stationary truck bearing No.RSR-4548 parked on the Road by NA-1. It was alleged that due to wrong parking of the truck on the road, the driver of the car could not notice the stationary truck and dashed the truck to its rear side causing injuries to Sohanlal and death of Babulal. It is this event, that led to filing of two claim pettions, out of which these two appeals arises. One was filed by Sohanlal under Section 166 ibid claiming compensation for the injuries sustained by him in this accident, whereas other one was filed by legal representatives of Babulal, who died in the accident claiming compensation for the loss sustained on account of his death. It was filed against owner, driver of truck (NA1/2) so also owner, driver and insurer of car (NA-3, 4 and 5). 6. It was contested by insurer and insured of car denying the case of claimants. Parties adduced evidence. { 3 } By impugned award, the Tribunal held that accident occurred due to negligence on the part of driver of car and hence claimants are not entitled to claim any compensation from any of the non-applicants. It is against this award, the claimants have felt aggrieved and filed these appeals. 7. Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to allow the appeals and while setting aside of the impugned awards, allow the claim petitions in part as indicated infra. 8. I have gone through the evidence of parties with a view to find out as to how and in what manner the accident in question occurred and who was responsible for causing such accident. The claimants have examined two eye witnesses namely Sohanlal (AW-2) and Dinesh Kumar (AW-1), whereas non-applicants have not examined any eye witness. So far as Sohanlal and Dinesh are concerned, these two were also occupant of car in question and were travelling along with the victim. Infact, Sohanlal himself was one of the victim and now claimant in this case. Both have stated in their evidence that one truck was standing on the road and since no indicator was put in operation by the truck driver, the car driver could not notice in the dark and dashed to stationary truck. True it is that these two witnesses have also said that driver of car was driving very fast, but due to only fast driving, he can not be held liable { 4 } because the accident occurred essentially due to wrong parking of truck on the road with no indicator. The very fact that driver of truck was not examined by the non- applicants despite affording them an opportunity to do so, I am inclined to hold that accident was caused due to negligence on the part of truck driver, who parked the truck on the road without any danger signal being displayed on the truck. In my view, firstly it was the duty of driver of the truck not to park the truck on the road on which constantly heavy vehicles are passing and secondly at least the driver should have put some signal for passers by on the road on his truck so that they would have been able to know that the truck is stationed on the road. In the absence of any precaution not being taken by the driver of the truck while parking his truck on the road, it is not possible to hold that driver of car was guilty for causing the accident. It is more so when the driver of truck did not come forward to explain the manner in which accident occurred and why he could not take all precautionary measures while parking his truck. An adverse inference has to be drawn against the non-applicants for their absence. It is accordingly drawn against the non- applicants by holding the driver of truck to be negligent in causing accident. 9. In the light of aforesaid appreciation of evidence of two eye witnesses of claimants, I hold by reversing the finding of Tribunal that accident in question { 5 } occurred due to sole negligence of driver of truck. In other words, the accident in question did not occur on account of any negligence on the part of driver of car, but it occurred on account of negligence on the part of truck driver. In this view of the matter, the non-applicants Nos. 1 and 2 being driver and owner of truck bearing No.RJ- 19/C-4760 are held jointly and severally liable to suffer the liability arising out of accident. Since the truck in question was not insured and hence the liability arising out of accident has to be shared by driver and owner of truck jointly and severally, whereas owner, driver and insurance company of car (NA-3, 4 and 5) can not be held liable to suffer any liability arising out of accident. They are accordingly absolved. 10. This takes me to the question relating to quantum of compensation payable to each claimant. 11. So far as CMA No.519/97 is concerned, it is filed by Sohanlal i.e. injured. He was awarded a sum of Rs.28,729/- for the injuries sustained by him in the accident. He has in his appeal claimed enhancement in the compensation awarded by the Tribunal. According to him, he sustained injuries in right hand, chest and face. The Tribunal on appreciating the evidence adduced, awarded total sum of Rs.28,729/-. 12. I have gone through the evidence adduced by { 6 } the claimant on the issue of injury sustained by him. In my opinion, taking into consideration the nature of injury, as a result of which the claimant is not fit as he was prior to accident in his day today work, the expenditure incurred in receiving medical treatment in actual and to be incurred in future, the loss and mental pain / suffering suffered due to his involvement in accident and discomfort occurred, I consider it proper to enhance in lump sum the compensation from Rs.28,729/- to Rs.50,000/- . In other words, in my view, the claimant is held entitled for a total sum of Rs.50,000/- by way of compensation for the injuries sustained by him. 13. Learned counsel for the appellant cited some authorities for claiming enhancement. I have gone through these authorities. In my opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation. Indeed taking into consideration these authorities and then applying the law so laid down to the facts of this case, I have arrived at the figure of enhanced compensation mentioned supra. 14. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified and passed against NA-1/2 jointly and severally to the extent indicated above. The awarded sum mentioned in para 12 will carry interest at the rate of 6% p.a. from the date of { 7 } application till realization. All other findings are upheld being not under challenge. 15. This takes me to next appeal being CMA No.507/97. This appeal arises out of claim case of Babulal, who died in this very accident. The evidence on record shows that Babulal was around 36 years at the time of death. He was doing business in the name of -Proprietorship by name – Mansarowar Synthetics. He was income tax assessee. The claimants filed his income tax return for the AY 1991-92, AY 1992-93 and AY 1993- 94 showing his income of Rs.67,970/-, Rs.64,950/- and Rs.89,429/- for the three years respectively. In my opinion, taking into account the average of three years income and the fact that it was out of business and not by his service, it is safer to take Rs.50,000/- by way of average as his yearly income from the business for determining the compensation. Deducting 1/3rd, I get around Rs.33,000/-. Applying the multiplier of 16 as per Schedule (age 36 years), I get Rs.33,000 x 16 = Rs.5,28,000/-. To this, I add a sum of Rs.22,000/- in lump sum towards award of compensation for funeral expenses, loss of love and affection and estate etc.. This makes the total of Rs.5,28,000/- + Rs.22,000/- = Rs.5,50,000/-. 16. Learned counsel for the respondent however vehemently contended that any award in the compensation by this Court in this appeal would be a bonanza to { 8 } 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 by passing against NA-1/2 jointly and severally to the extent indicated above. The awarded sum mentioned in para 15 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. Counsel fees Rs.1500/-, if certified. (A.M.SAPRE ),J. /Anil/