IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No. 279 of 2004 Date of Decision : October 13, 2008 Mehar Chand …Appellant. Versus: Bali Devi and others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Pt. Om Parkash, Advocate. For respondents 1 to 6:Mr. R. S. Chandel, Advocate vice Mr. Sanjeev Bhushan, Advocate. For respondent No. 7 : Mr. Neel Kamal Sood, Advocate For respondent No. 9 : Mr. J. S. Bagga, Advocate SANJAY KAROL, JUDGE. (Oral) The owner has filed the present appeal assailing the Award dated 1.6.2004 passed by the Motor Accidents Claims Tribunal, Kullu, H.P. in Cl. Pet. No. 61/02, titled as Bali Devi & Others vs. Hem Bahadur & Others. The present respondents No. 1 to 6, as claimants filed a petition under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as ‘the Act’) on the ground that their predecessor-in-interest, Shri Pari Chand died in a motor accident 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 on 12.10.2002. Vehicle No. HP-34-0572, owned by Shri Mehar Chand, appellant herein, being driven by Shri Hem Raj, respondent No.8 herein, in a rash and negligent driving, met with an accident near Chhror nallah at Village Bishtbehar, Phati and Kothi Kais, Kullu, H.P. and its passenger Shri Pari Chand sustained injuries and died. The claimants claimed compensation of Rs.5 lacs for the reason that the deceased, aged 50 years, who was working as Gold Smith and also carrying on the business of fruits and vegetables, was having an income of Rs.10,000/- per month. Based on the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether the accident took place due to rash and negligent driving of jeep No.HP-34-0572 by its driver-respondent No.3 in which Pari Chand received injuries and thereafter succumbed to it, as alleged? …………OPP 2. If issue No.1 is proved whether the petitioners are entitled to compensation? If so, to what amount and from whom? ……….OPP 3. Whether the petition is bad for non-joinder of the necessary parties. If so, who are the necessary parties? ………..OPR-1 4. Whether the petitioners are not L.Rs of deceased Pari Chand, as alleged? …….. OPR-1 5. Whether the vehicle in question was goods carrier and the deceased was travelling in it as gratuitous passenger? If so, its effect? …..OPR-3 6 Whether the driver of vehicle No.HP-34-0572 was not possessing valid and effective driving licence, as alleged? If so, its effect? …….OPR-3 7. Relief.” 3 Appreciating the material on record, the Tribunal held the driver to have driven the vehicle in a rash and negligent manner and the deceased Sh. Pari Chand having sustained injuries in that accident which took place on 12.10.2002. The appellant, based on the admission was held to be the owner of the vehicle and since the deceased was a gratuitous passenger, the Insurance Company was held not liable to indemnify and pay the compensation. Taking the income of the deceased, notionally to be Rs.2400/- per month, after deducting 1/3rd from the same, the balance amount of Rs.1600/- was taken to be the loss of dependency and by applying a multiplier of 8, a sum of Rs.1,53,600/- was awarded in addition to Rs.10,000/- as conventional charges. The owner has filed the appeal on the ground that the Tribunal has mis-appreciated the evidence with regard to the negligence on the part of the driver and thus wrongly awarded compensation in favour of the claimants. The challenge is also on the ground that the compensation is on the higher side. I have heard the learned counsel for the parties and also perused the record. For the purpose of adjudication of the controversy in issue, the following undisputed facts emerge :- i) Shri Pari Chand deceased, aged 50 years was travelling as a gratuitous passenger in the vehicle at the time of 4 accident in view of the admission of the driver. The vehicle met with an accident in which he sustained injuries and died. ii) Smt. Bali Devi, wife claimant No.1 and both unmarried daughters, Ms. Hari Bala, claimant No.5 and Ms. Shanti Devi, claimant No.6 (minor aged 15 years), were dependent upon the deceased; the other claimants No. 2, 3 & 4, namely, Smt. Banti Devi, Shri Duni Chand and Shri Jeet Ram were not dependent upon the deceased. iii) The present appellant is the owner of the vehicle. In order to prove their case, the claimants examined Dr. Sumedh Kaul (PW-1), H.C. Narain Singh (PW-2), S/Shri Duni Chand (PW-3) and Hari Ram (PW-4). In rebuttal, the respondents examined S/Shri Bhopu Ram (RW-1), Rajiv Chohan (RW-2), Hem Raj (RW-3), Hem Bahadur (RW-4) and Mohar Singh (RW-5). PW-1 proved the post mortem report Ext.PW-1/A to prove the death of the deceased. PW-2 proved the fact that FIR No.537/2002( Ext.PW-2/A) was registered against the driver under Sections 279/304-A IPC. PW-3 has deposed with regard to the income and dependency of the claimants. Both PW-4 and RW-1, the spot witnesses have deposed with regard to the occurrence of the accident. RW-2 has proved the driving licence and RW-3 is the driver. 5 As per the version of PW-4, while he was working in the field he had seen the deceased sitting in the vehicle in question and when it reached Chhror Nallah, he saw it fall down below the road. He immediately went to the spot and noticed the injuries on the head of the deceased and accordingly informed his family members on telephone. However, with regard to the negligence, this witness has contradicted himself. Whereas in his examination-in-chief, he has deposed that the accident occurred for the reason that the vehicle was being driven by the driver in high speed but, however, in his cross-examination, he has deposed that he is not aware as to how the accident occurred. Be that as it may be, the fact of the matter is that accident took place and the deceased died as a result of the same. Both the driver and the owner took the defence that the retaining wall of the road gave way which resulted into the occurrence of the accident. In order to prove the same, they have examined RW-1. To my mind, the deposition of this witness does not inspire confidence. According to him, on the fateful day he was walking on the road carrying a log on his back and when he reached Chhror Nallah, he saw the vehicle being driven by RW3, come uphill. The road was unmetalled (Kuccha) and in order to take pass, seeing the length of the log, the driver 6 turned the vehicle on the side of the road when the retaining wall gave way and the vehicle fell down. Thereafter, he went to the house of Shri Hem Raj to inform about the accident. The conduct of this witness is quite unusual. He had seen the occurrence of the accident. In normal course anyone would have normally rushed to the site of the accident to attend to the passengers of the vehicle rather than go to the house of RW-3 to inform about the occurrence of the accident. This witness is obviously known to the driver and as such is deposing falsely. His presence is doubtful as the other spot witness PW-4 does not even mention about the presence of RW-1 or the occurrence of the incident as narrated by him. Having taken the defence that the retaining wall gave way, it was incumbent upon the driver and the owner to have proved the same. Even the statement of driver RW-3 does not inspire confidence. No doubt, the road was un-metalled but was wide enough for a bus to have safely crossed at the point of the accident. It was a public highway with public transport running on the same. The driver was uphill. He had noticed RW-1 carrying log. He was an expert and ought to have taken due care and caution in allowing RW-1 to cross the road as he was carrying a log on his back. Considering the defence of the appellant that the road was kachha, the driver ought to have 7 exercised more care and caution in not taking the vehicle to the extreme end of the road so as to endanger the life of the passengers. The driver could have applied the brakes and allowed the passer by to enable him to cross the road rather than taking the vehicle on the extreme valley side o the road. It is not that the accident occurred at the time when the driver was giving pass to another vehicle. The driver could have taken the vehicle to the hill side so as to ensure safety and protection of the vehicle and the passengers. It is not the case of the driver that at the spot there was a blind curve or all of a sudden RW-1 had come in front of the vehicle and therefore he had to turn the vehicle to the side. The site was evidently clear and the jeep was noticeable from a distance which stands proved by RW-1 who has deposed that he had seen the vehicle coming uphill. Prima facie negligence, is also evident from the fact that the driver was criminally prosecuted with the registration of FIR Ext.PW-2/A. He has not disclosed the outcome of the said proceedings. In my view, the Court below has rightly held that the driver was negligent in driving the vehicle at the time of accident. In Rathnashalvan vs. State of Karnataka, (2007) 3 SCC 474 and Prabhakaran vs. State of Kerala, AIR 2007 SC 2376, the Apex Court has considered what rashness and negligence would mean:- 8 “….A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent ct done precipitately. Negligence is the genes, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not…” “…Negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case…” The passenger admittedly being gratuitous and the vehicle in question being a goods vehicle, the Insurance Company has rightly been held not liable to indemnify the owner. It is true that except for the bald statement of PW-3 there is no other cogent material on record to prove the actual income of the deceased but the fact of the matter is that the accident took place in the year 2002 when even the daily wage labourer was entitled to Rs.100/- per day as daily wages. The Tribunal has only taken the notional income of the deceased to be Rs.2400/- per month and after carrying out deduction of 9 1/3rd has determined the amount for the purpose of dependency to be Rs.1600/- per month. The age of the deceased was 50 years. The claimants-wife less than 50 years, and two un-married daughters (one minor) were deprived of the income. Therefore, in my view, the Court below has rightly applied the multiplier of 8 while determining the compensation awarded to the claimants. The Court below has taken into account the principles of law laid down by the Apex Court in G. M. Kerla State Road Transport Corporation Vs. Sushama Thomas AIR 1994 SC 1631. The Tribunal has considered the material in its entirety. I find no illegality or irregularity in the impugned Award. For the aforesaid reasons, the appeal is dismissed. ( Sanjay Karol ), Judge. October 13, 2008. (rana)