SBCMA No.2328/2007 Smt. Jatani Bai & Anr. Vs. Ratan Lal & Ors. -[ 1 ]- SBCMA No.2328/2007 Smt. Jatani Bai & Anr. Vs. Ratan Lal & Ors. DATE OF ORDER : - 1.12.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.SK Sankha, for the appellants. Mr. AK Dadhich, for the respondent. <><><> Notice for final disposal at admission stage was issued vide order dated 5th March, 2008. In response of which nobody appeared on behalf of the driver and owner of the vehicle respondent no.1 and 2. The respondent no.3 has put in appearance. Learned counsel for the appellants submitted that the tribunal while dismissing the claim case no.326/2006 vide award dated 29th June, 2006 committed serious error of fact by ignoring the material evidence already on record, which is documentary evidence and also admission of the respondent no.1 – the driver of the vehicle, who is also not only husband of the respondent no.2 – the owner of the vehicle but was also power of attorney holder of respondent no.2. It is submitted that in Ex.9 in response to the notice SBCMA No.2328/2007 Smt. Jatani Bai & Anr. Vs. Ratan Lal & Ors. -[ 2 ]- under Section 133 of the Motor Vehicles Act, the respondent no.2 clearly admitted that the accident occurred by the truck No.RJ25-G-0692, which is in the ownership of his wife respondent no.2 and the accident occurred on 10th Nov., 2005 wherein the victim Raju Singh died. It is submitted that it is true that at the time of accident nobody was present and, therefore, there is no eye witness, but in investigation it was found that the accident was caused by the vehicle in question. The vehicle was seized by the police and it was subjected to mechanical examination and MTO report also shows that there are marks of accident on the truck in question. Learned counsel appearing for the respondent no.3 pointed out that the accident occurred in the night of 10th Nov., 2005 and FIR was lodged on 10th Nov., 2005 itself stating therein that the accident was caused by unidentified vehicle. The police gave FR and the case was reopened on application submitted after delay and, therefore, it appears to be a concocted story. It is submitted that there is no evidence on record to show that anybody saw the accident being caused by the respondent no.2's truck by driving the SBCMA No.2328/2007 Smt. Jatani Bai & Anr. Vs. Ratan Lal & Ors. -[ 3 ]- truck rashly and negligently by the driver – respondent no.1. I considered the submission of learned counsel for the parties and perused the record. The accident occurred on 10th Nov., 2005 and FIR was lodged by Jawan lal who has been produced by the appellants-claimants as their witness before the Motor Accident Claims Tribunal. He stated that accident was caused by the truck and it was due to rash and negligent driving of the truck driver and this fact came to the knowledge of the witness subsequently and when this fact came to the knowledge of the witness, the information was given to the police and the vehicle in question was seized by the police. The police also inspected the site and prepared the site report Ex.3 and prepared the Panchnama of the body of the deceased Ex.4. The notice under Section 133 of the Motor Vehicles Act, 1988 was issued to the respondent no.1, who in response to the said notice under Section 133 of the Motor Vehicles Act stated that accident was caused by the truck of his wife for which he was given power of attorney by his wife and he was driving the truck on 10th SBCMA No.2328/2007 Smt. Jatani Bai & Anr. Vs. Ratan Lal & Ors. -[ 4 ]- Nov., 2005 when the accident occurred and in that accident Raju Singh died. In view of the above when after investigation, the vehicle had been traced out, which was subjected to mechanical examination then there was no reason to disbelieve the unrebutted documentary evidence and particularly unrebutted admission of the respondent no.1 made in response to the notice under Section 133 of the Motor Vehicles Act. In view of the above, the tribunal was in error in holding that there is no sufficient evidence to involve the truck of the respondents nos.1 and 2 in the accident. The relation of witness AW-1 Jawan Ram with the deceased Raju Singh itself cannot be ground for rejection of the statement of the witness AW-1 Jawan Ram, who clearly stated in the FIR that he did not see the accident nor he was knowing the vehicle by which the accident was caused, therefore, if he came to know subsequently about the details of the vehicle by which accident was caused unless that fact is not trustworthy then that could not have been rejected in view of the corroborative documentary evidence brought on record by the independent agency during police SBCMA No.2328/2007 Smt. Jatani Bai & Anr. Vs. Ratan Lal & Ors. -[ 5 ]- investigation. It is held that the accident was caused by the respondent no.1 while driving the truck of the respondent no.2 – his own wife and in that accident the victim Raj Singh @ Raju Singh died. Death due to accident is also proved by the postmortem report and other evidence. Looking to the site report it can safely be held that accident was caused by rash and negligent driving the vehicle by the driver – respondent no.1. Therefore, the finding of the tribunal on issue no.1 is set aside. The tribunal has awarded compensation of Rs.4,27,000/- in total by calculating the income of the deceased as Rs.3,000/- per month only and after giving deduction of 1/3rd of his income. The tribunal found that the deceased was of the age between 20 to 25 years and applied multiplier of 17. In view of the above reasons, the award is just and proper. Consequently, the appeal is allowed. The award dated 29th June, 2007 is set aside and it is held that appellant shall be entitled to compensation of the total amount as awarded by the Motor Accident Claims Tribunal while deciding issue no.2 to the extent of Rs.4,27,000/-. SBCMA No.2328/2007 Smt. Jatani Bai & Anr. Vs. Ratan Lal & Ors. -[ 6 ]- The appellant shall also be entitled to interest @ 6% per annum from the date of filing of the petition. No order as to costs. (PRAKASH TATIA), J. c.p.goyal/-