IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.270 of 2005 alongwith FAO No.271 of 2005. Date of Decision: 07.11.2009 Raj Kumar (Dead) through LRs Smt.Roshani Devi and others (in both the case) …Appellants. Versus. 1.Smt.Koshalya Devi and others in FAO No.270 of 2005. 2.Smt.Lakshami Devi and others in FAO No.271 of 2005. .. Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr.Jagdish Thakur vice Mr.K.B.Khajuria, Advocate. For the Respondent(s): Mr.Manohar Lal Sharma, counsel for respondents 1 to 6. Mr.K.D. Sood, counsel for Respondent No.7. Deepak Gupta, J. (Oral). These two appeals are being disposed of by a common judgment since they arise out of the one accident and the questions of law and fact involved in both the cases are identical. Briefly stated the facts of the case are that the claimants in the two appeals are the legal heirs of Beas Dev and Amar Chand respectively. The claimants filed petitions under Section 166 of the Motor Vehicles Act alleging that both the deceased 2 were travelling in the vehicle No.HP-48-2414 which met with an accident while crossing a bridge due to rash and negligent driving of the driver of the vehicle. Reply(s) to the claim petitions was filed by the owner-cum-driver of the vehicle who took up the plea that the deceased were not travelling in the vehicle but in fact crossing the bridge on foot when the bridge collapsed. The Insurance Company took various pleas including the plea that the deceased were gratuitous passengers in the goods vehicle and hence the Insurance Company is not liable. As far as the issue of negligence is concerned the same is common in both the cases. The learned Court below has come to the conclusion that the accident occurred due to the rash and negligent driving of the driver Raj Kumar. PW-2 Anup Kumar was a Patwari and was admittedly travelling in the truck in question. Raj Kumar has admitted that Anup Kumar was travelling in the vehicle. According to Anup Kumar on the way Amar Chand and Beas Dev also boarded the vehicle but sat in the back of the vehicle. When the vehicle reached near Kulhari, the driver asked them to get down since the bridge was in a dilapidated condition. The driver stated that the vehicle could cross through. However, when the vehicle was in the middle of the bridge, the bridge started swaying and collapsed and the vehicle fell into the river. He further states that Amar 3 Chand and Beas Dev who were sitting in the back of the vehicle died in the accident. Raj Kumar, driver of the vehicle appeared as RW-1. According to him, two of deceased persons Beas Dev and Amar Chand were walking on the bridge and they fell down when the bridge broke. He admits that the vehicle is a goods vehicle and passengers are not meant to be carried in the said vehicle. He however admits that in his vehicle one Kanungo Kamal Kumar and one Patwari Anup Kumar were sitting. It is therefore obvious that there were two persons in the vehicle. Anup Kumar appeared in the witness box and stated that both the deceased were travelling in the truck itself. Kamal Kumar was not examined by either side. According to Raj Kumar the accident occurred since the bridge broke. It is apparent from the statement of Anup Kumar that the driver of the vehicle Raj Kumar was aware that the condition of the bridge is very bad. He in fact stopped the vehicle and asked the Kanungo and Patwari to get down from the vehicle and still tried to take the vehicle across the bridge. If the driver knew that the bridge is in a dilapidated condition then his attempt to take the vehicle across the bridge itself is an act of negligence. From the evidence discussed above it is also apparent that both the deceased were travelling in the truck and were sitting on the back of the truck. Anup Kumar who was 4 admittedly travelling in the truck has stated that the deceased were sitting in the back of the truck. They were admittedly not owner of the goods in the vehicle and there is no evidence to show that they were travelling as owner of the goods. Even otherwise, the Apex Court has clearly held that even in the case of owner of goods the said owner should travel in the cabin and not in the rear of the truck. As far as the quantum is concerned it stands proved on record that Beas Dev was getting a salary of Rs.4,865/- per month as is apparent from the last pay certificate Ext.PW-5/A. He left behind a widow and five children. The learned Tribunal has deducted 1/3rd for the expenses of the deceased on himself and assessed annual contribution towards the family at Rs.38,920/-. Beas Dev was aged about 49 years at the time of the accident and the learned Tribunal has applied a multiplier of 11 which is a reasonable and calls for no interference. In the case relating to the death of Amar Chand it stands proved on record that the deceased was getting a salary of Rs.7096/- per month. In this case also 1/3rd has been deducted for the expenses of the deceased on himself. The age of the deceased was 55 years and multiplier of 11 has been applied which is in consonance with the law laid down by the Apex Court in Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, (1009) 6 SCC 121. 5 Further more in both these cases when the deceased were in government service, the Tribunal below in accordance with the law laid down in Sarla Verma’s case should have assessed the compensation taking into consideration the future prospects which it has not done. The award would have been higher if this had been done. The awards cannot be said to be unreasonable and call for no interference. In view of the above both the appeals are dismissed. No costs. November 7, 2009. ( Deepak Gupta ), PV Judge.