IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.: 57 of 2006. Date of decision : 24.08.2009 Guddi Devi and another …Appellants Versus Hukam Chand and another …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellants: Mr. Romesh Verma, Advocate. For the respondent No.1. Mr. Sanjeev Bhushan, Advocate. For the respondent No.2 Mr. Praneet Gupta, Advocate. Deepak Gupta, J. (Oral) This appeal by the claimants is directed against the award of the learned Motor Accident Claims Tribunal, Shimla, dated 24.10.2005 whereby the claim petition M.A.C Petition No. 25-S/2 of 2002 filed by the claimants has been dismissed on the ground that they have failed to prove that the deceased Prakash Chand died in a motor vehicle accident. The claimants, who are the parents of deceased Prakash Chand filed a petition under Section 166 of the Motor Vehicles Act. They claimed that Prakash Chand had been engaged as a cleaner on Truck No. HP-11-6411 owned by Hukam Chand Sharma respondent No.1. This truck fell into the river Satluj near Purbani Jhula on 6.6.1992 and both the driver and the cleaner died and their bodies were washed away and could not be recovered. The 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 owner of the truck did not dispute the factum of the accident. His only plea was that he had no knowledge whether Prakash Chand died in the accident since the accident did not take place in his presence. According to him, he was paying Rs.500 per month + Rs.50 per day as expenses to Prakash Chand. The Insurance Company took various pleas. The learned Tribunal rejected the claim petition mainly on the ground that none of the witnesses had testified that they had seen Prakash Chand dying in the accident in question. The approach of the learned Tribunal, to say the least, was highly technical. An accident of a motor vehicle may occur when no witness are present. If an accident occurs in such circumstances, then the nature of the accident, how it happened and who were the passengers in the vehicle, are matters which have to be deduced from the evidence on record. The claim petition cannot be rejected only on the ground that there are no eye witnesses to the accident. In the present case, the claimants specifically pleaded and have also led evidence to show that Prakash Chand was engaged as a cleaner/conductor of the truck in question. The owner admits this fact. The owner also states that the truck alongwith Rajesh Kumar, driver and Prakash Chand, cleaner, had gone towards District Kinnaur. An F.I.R. Mark-B was lodged with the Police Station at Recong Peo, which recorded the factum of the truck having fallen into the river Satluj and being washed away. It may be true that this F.I.R has not been proved strictly in accordance with law. However, the fact remains that nobody disputed the veracity of the F.I.R. The owner was the best 3 person to testify as to what had happened to the truck. According to him, the truck had fallen into the river. This was corroborated by the certified copy of the F.I.R placed on record. The Insurance Company while cross-examining the claimants has in fact not denied the occurrence in question. One suggestion put to the claimant is that at the time of the accident is that she, the mother of the deceased, was not present at the spot. The other suggestion put was that on that particular day, Prakash Chand had taken a lift in the truck and was traveling in the same as a gratuitous passenger. This virtually amounts to an admission that Prakash Chand was traveling in the truck in question. RW-1 Hukam Chand Sharma, had clearly stated that his truck met with an accident on 6.6.1992 and had fallen into the river. He was not subjected to any cross-examination in this regard by the Insurance Company. In view of the above discussion, I am clearly of the view that if the preponderance of evidence is taken into consideration, the only conclusion which can be drawn is that the deceased who was working as a cleaner/conductor in the truck died in the accident when the truck fell into the river Satluj. This Court can take judicial notice of the fact that the flow of the river Satluj in District Kinnaur is extremely swift and in a large number of cases, what to talk about the bodies of the victims, even the vehicles are not recovered. Next comes the question of quantum to which the claimants are entitled to. Admittedly, the deceased was working as a cleaner in the truck in question. According to the mother, her son’s wages 4 were Rs.1500/- per month and he was also getting daily allowances of Rs.50 per day. But according to the owner, he was only paying salary of Rs.500/- per month + Rs.50/- per day. Even if the minimum wages in the year 2002 are taken into consideration the earnings of the deceased would not be less than Rs.2,000/- per month. However, while calculating the dependency of the parents one has to keep in mind the fact that the father was alive. It is not the case that the father was dependent on the deceased. The age of the mother is disclosed to be 40. Father of the deceased was 43 years old and would be an earning hand. With regard to the quantum, this Court has repeatedly held that in a case filed under Section 166 of the Motor Vehicles Act, the amount of compensation granted cannot be less than compensation which would be awarded in the event of no fault liability payable under Section 163-A of the Act. Even if calculation was to be made in accordance with Schedule-B, relevant for the purposes of Section 163-A of the Act, and the income of the deceased is taken at the very minimum of Rs.15000/- per annum, the compensation payable would be Rs.2,40,000/- less 1/3rd , i.e. Rs.1,60,000/- The claimants would also have been held entitled to Rs.2,000/- as funeral expenses and Rs.2,500/- for loss of estate and the total works out to Rs.1,64,500/- In my view, this is just and proper compensation. The claimants shall also be entitled to interest on this amount @ 7.5 % per annum from the date of filing the claim petition i.e. 4.9.2002 till payment of the awarded amount. The Insurance Company is directed to deposit the awarded amount in the Registry of this 5 Court within eight weeks from today. The claimant No.1, who is mother of the deceased, shall be entitled to entire amount. The appeal is disposed of accordingly. No costs. 24th August, 2009 ( Deepak Gupta ) ™ Judge.