{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.680/1999 Smt.Charno Bai & Ors. VS. Surjit & Ors. Date of order : 3.8.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. G.R.Goyal, for the appellant. Mr. R.K.Singhal, for the respondents. This is a misc. appeal filed by claimants under Section 173 of Motor Vehicles Act (for short called “the Act”) against an award dated 31.3.1999 passed by MACT, Sriganganagar in Claim Case No.18/97. 2. By impugned award, the Claims Tribunal partly allowed the claim petition of claimants filed under Section 166 of the Act and awarded to claimants a total sum of Rs. 1,97,000/- for the death of one Shravan Singh, who died in vehicular accident. However, the Tribunal while passing an award held deceased to be responsible for causing the accident to the extent of 30% and other vehicle i.e. Truck to be 70%. In this view of the matter, the liability was apportioned in the ratio of 30% and 70% between the claimants and non-applicants resulting in award amount being reduced to the extent of 30%. It is this award, which is impugned in this appeal by the claimants. 3. So two questions arise in this appeal, first whether { 2 } Tribunal was justified in holding the deceased to be liable for contributing the accident to the extent of 30% and if so whether this finding is liable to be upheld. Second whether Tribunal was justified in awarding a total compensation of Rs.1,38,000/- for the death of Shravan Singh or any case is made out for enhancement.? Facts of the case are these: 4. On 2.12.96, Shravan Singh was going in one Jeep bearing No.PBW-1788 in Ganganagar along with his friends. The jeep was dashed by one Truck bearing No.RJ/13/G/1534. It was beingt driven by NA-1 owned by NA-2 and insured with NA-3. Due to dash Shravan Singh died on account of injuries sustained by him in the accident. This gave rise to filing of claim petition by the legal representatives of Shravan Singh under Section 166 of the Act claiming compensation for the death of Shravan Singh. It was contested by non-applicants. According to them the accident occurred due to negligence on the part of deceased and not that of driver of truck and hence no liability of any nature can be fastened upon any of the non-applicants. Parties adduced evidence. By the impugned award, the Tribunal partly allowed the claim petition and in consequence awarded to claimants a total sum of Rs.1,97,000/- for the death of Shravan Singh. It was held that his age was 40 years, that his monthly earning was Rs.1200/-. Applying the multiplier of 12, the Tribunal reduced the compensation to the extent of 30% by holding that deceased had contributed towards accident to the extent of 30% and hence, he is only entitled to claim 70% of the total compensation which works out to Rs.1,38,000/-. It is against his award, the claimants have felt aggrieved and filed this appeal. 5. In this appeal, the appellants have raised two points, first whether Tribunal was justified in holding that deceased was responsible for causing accident to the extent of 30% and hence not liable to get full compensation on the principle of contributory { 3 } negligence. Second whether any case on facts and evidence is made out for enhancement in the compensation awarded to the claimants. 6 Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to answer the question No.1 in favour of appellants and in consequence while allowing the appeal in part modify the impugned award to the extent indicated infra. 7. I have perused the evidence with a view to find out as to whether any case on facts and evidence is made out for holding that deceased was responsible for causing accident or Truck driver. 8. At the outset, I may observe that non-applicants did not adduce any evidence in support of their defense. The best person who could have and should have entered into a witness box on behalf of non-applicants was the driver of Truck which met with an accident. He was made party as NA-2. He also filed written statement explaining the manner in which accident occurred thereby throwing full blame on the deceased in causing accident. However, for the reasons best known, he did not prove his defense and remained virtually ex parte. In the absence of any rebuttal evidence, the defense taken by the non-applicants in answer to the averments made in the claim petition so also the evidence adduced by claimants remained unrebutted. I am, therefore, inclined to draw adverse inference against the non- applicants for not adducing the best evidence though available and though allowed adequate opportunity to do so. It is a trite law that mere filing a written statement is not enough. Its contents are required to be proved by adducing oral and documentary evidence. In this case, it was all the more because the non-applicants did not simply deny the claim of the claimants but came out with a positive case explaining as to how the accident occurred and how { 4 } the deceased was responsible in causing such accident. The burden was thus on them to prove such defense taken in the written statement. It was not proved at all. 9. Coming now to the case of claimants for finding out as to whether they were able to discharge their initial burden by proving that the deceased was not negligent in driving his vehicle but accident was caused due to the negligence of driver of Truck (NA-2). Having perused the evidence, I find no hesitation in recording a finding in claimant's favour that deceased was not negligent in driving his Jeep but it was the driver of Truck, who dashed the deceased. 10. In the first place, the claimants have specifically in para 10 of claim petition pleaded that accident occurred due to negligent driving of Truck driver (NA-2). He also examined PW2 Purna Singh as a sole eye witness, who specifically deposed that he was travelling in the jeep along with deceased on his right side on the road when Truck came from opposite direction very vast and dashed his jeep. I failed to appreciate what is there to disbelieve this eye witness. When the claimant has averred in the claim petition and has proved in evidence the negligence of driver of Truck, then such statement has to be believed and accepted. It is more so when non-applicants did not enter in witness box to rebut it. 11. Learned counsel for the respondent contended that negligence on the part of claimants driver stood proved by the evidence of claimants and hence it was not necessary to prove any thing by non-applications. I do not agree to this submission for more than one reason. In the first place, I have not been able to notice any kind of admission to this effect made by claimants in their oral evidence. Secondly, no other evidence is on record to prove this fact to the extent of holding that driver of vehicle in which deceased was travelling was responsible. In my opinion, it { 5 } was obligatory upon the non-applicants to have proved their defense regardless of the evidence adduced by claimants. In fact, in such cases, the rebuttal evidence is the only one which can be looked into while appreciating the case of the parties. It was not done. It is for these reasons, I do not accept the submission of learned counsel for the respondent. 12. In view of foregoing discussion, I while disagreeing with the finding of Tribunal, reverse the same and in consequence hold that driver of vehicle in which deceased was travelling was not responsible for causing accident much less to the extent of 30% but it was NA-1 i.e. driver of Truck, who was negligent in driving, which caused accident resulting in death of Shravan Singh. 13. This takes me to the next question regarding quantum of compensation awarded by the Tribunal. 14. Having gone through the evidence and the amount awarded to claimants, I find that it is proper and hence does not call for any interference. In other words, a sum of Rs.1,97,000/- cannot be said to be on higher side on facts and evidence because even if calculation as per Act/Schedule is made on the basis of deceased monthly income then also we come to the same amount which is awarded by the Tribunal. In other words, though Tribunal does not seem to have deducted 1/3rd etc., while calculating the dependency with reference to his income yet on the basis of over all calculation and deducting 1/3rd etc. from deceased monthly income and applying the proper multiplier, I feel that we can again reach to the same figure awarded by the Tribunal. In this view of the matter, I am not inclined to enhance the awarded sum any more than what has been awarded by Tribunal. It is in my view the just compensation which the claimants are now entitled to claim in its entirety because of setting aside of the finding of contributory negligence in their favour. { 6 } 15. In view of foregoing discussion, the claimants (appellants) are held entitled to claim a total sum of Rs.1,97,000/-. 16. In other words, the claimants are held entitled for a total sum of Rs.1,97,000/- by way of compensation for the death of Shravan Singh. 17. As observed supra, the compensation awarded to the claimants is just, reasonable and proper looking to the facts and circumstances of the case and the same is granted taking into account the law laid down by the Supreme Court in these types of cases referred supra. Indeed in such cases, no fixed or/and any static formula is provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and all relevant factors mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation by exercising discretion. It is done in this case. 18. Learned counsel for the appellants, however, cited some more authorities for claiming more enhancement. I have gone through these authorities. In my opinion and as observed supra, every case depends upon facts involved in that case. I need not, therefore, deal each case separately having placed reliance on 2 cases of Supreme Court referred supra. They are sufficient for the disposal of this appeal. 19. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified by enhancing the compensation to the extent indicated above in para 16. The awarded sum 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. /tarun/