1. This is an appeal preferred under Section 110-D of the Motor Vehicles Act, 1939, by the appellants, who are parents of the deceased Salim Ahmed. It arises out of an award dt. 30-9-1981, given by the Member, Motor Accidents Claims Tribunal, Jhabua, in Claim Case No. 8 of 1980.
2. The facts of the case in brief are that on 6-5-1980, by about 6.30 p.m. a passenger-bus No. CPH-8567, belonging to the respondent 1 was coming from Ahmedabad to Indore. It was being driven by respondent 3 Nisar Ahmed. The bus had left Jhabua and was nearing village Kalidevi, which is situated on the highway at a distance of about 20 Kms from Jhabua on Ahmedabad Indore Road. The appellants' case is that the respondent 3 was driving the bus in a rash and negligent manner. Salim Ahmed, a boy aged about 15 years, was coming on a bicycle from Kalidevi. The bus dashed against the boy from the front side, as a result of which Salim Ahmed died on the spot. According to the appellants the bus was being driven at such an excessive speed that it could only be stopped at a distance of about 20 meters from the place of the accident.
3. The appellants claimed compensation of Rs. 1,25,400/- for the loss of income, mental agony and the price of the bicycle, which was also totally damaged.
4. It is not disputed by the respondents that the bus was being driven by Nisar Ahmed (respondent 3). It is also not in dispute that Salim Ahmed died on the spot. However, the respondents have denied that the driver was either rash or negligent in driving the bus. They have pleaded that Salim Ahmed was coming on a bicycle along with another boy. Seeing them from a distance the respondent 3 the driver blew the horn. On hearing its sound the respondents have further pleaded that the two boys moved in two different directions. One of them got down from the bicycle and stood on the right hand side of the road, while the other, the deceased Salim Ahmed, first turned his bicycle towards the left. Respondent 3 tried to turn the bus in the right hand side, but the deceased again turned his bicycle on his right hand side, as a result of which he dashed against the front side of the bus and died on the spot It is the respondent's case that none else was present at the time of the accident. However, immediately after the accident people from village Kalidevi came on the spot.
5. The claimants, appellant 1 Shabbir Ahmed examined himself as also one Sherinkhan Pathan as a witness, while the respondents have examined the driver, Nisar Ahmed and the conductor of the bus, Haribhai, as witnesses.
6. The Claims Tribunal by its award dismissed the appellants' claim mainly on the ground that the accident had occurred due to the negligence of the deceased Salim Ahmed, for which the respondents cannot be held liable to pay the compensation.
7. It is contended before us by the learned counsel for the appellants that the learned Member of the Tribunal was in error in holding that the accident had occurred due to the negligence of the deceased Salim Ahmed. He further argued that the Tribunal erred in disbelieving the evidence of Sherinkhan Pathan (AW. 2).
8. We have gone through the award dt. 30-9-1981. The learned Member of the Tribunal has disbelieved the evidence of Sherinkhan (AW 2) mainly on the ground that he was at a distance of about 225 feet from the place of the accident. For this he has relied upon a copy of the judgment of the Chief Judicial Magistrate, Jhabua, in Criminal Case No. 385 of 1980, thereby acquitting the respondent 3 of the charge under section 304a, i.p.c. This judgment of the Criminal Court contains a reference to the spot inspection made by the Magistrate himself and on that basis the Tribunal has discarded the testimony of Sherinkhan (AW 2) as unreliable. Suffice it to say that this approach of the learned Member of the Tribunal is palpably wrong. Firstly, the claimants were not a party to the proceedings in which the spot map was prepared and secondly the evidence in criminal case cannot be used as a basis for discarding the testimony of a witness recorded before the Tribunal itself. The spot map prepared by the Magistrate has neither been produced nor proved before the Tribunal by the respondents. Such evidence recorded behind the back of the appellants cannot be used against them. (See Ram Dulare Shukla v. M.P.S.R.T. Corporation, 1970 Jab LJ 626 : 1969 MPLJ 922). A mere production of a certified copy of the judgment of the Criminal Court containing a reference to such a spot-map having been prepared by the Magistrate is no evidence by itself unless it is proved as a fact. Therefore, this evidence should have been excluded from consideration by the Tribunal. The fact that Nisar. Ahmed (respondent 3) was acquitted in the criminal case is not itself sufficient to absolve him of his liability as a respondent. In claim cases, acquittal may have some bearing or relevance, but that by itself would not be a proof of the fact that the driver was not negligent. The learned Member of the Tribunal has overlooked the numerous decisions that evidence recorded in a criminal court and the findings arrived at therein should not be used in claim cases. Such evidence for the purposes of claim cases is inadmissible. Above all it is a settled principle of law that any evidence recorded behind the back of a party cannot be used against him. The learned Member of the Tribunal should not have disbelieved Sherinkhan (AW 2) merely because he is shown to be at a distance of 225 feet from the place of accident, in the spot-map, which is inadmissible.
9. On the question of negligence, the learned Member has preferred to rely on the evidence of Nisar Ahmed (respondent 3), but has overlooked the improvement made by him in his testimony. The case pleaded by the respondents in para 3, which has been stated above, is that the boy was dashed from the front side of the bus; where as Nisar Ahmed in his statement in para 1 states that the boy was dashed from the rear side of the bus, but how was he dashed, he could not know. It was only on hearing the passengers cries that he stopped the bus. This case, as set up by him, is not pleaded in the written statement filed by the respondents and this material improvement in his testimony that the boy was dashed from the rear side, is sufficient to discard the testimony of Nisar Ahmed on this point. So far as the speed is concerned, the respondents had the best evidence, namely, the Tekograph, which they have failed to produce. It has come in evidence that the road was clear and there was nobody else except the two cyclists on the road. It has come in evidence of Haribhai the bus conductor (DW 2) that the village Kalidevi was about a kilometer and was in sight. It is expected of a driver while approaching a village on the highway to be more careful and cautious while crossing such villages and more so when he had already seen the two youngster cyclists on the road. It is not the case of the respondents that the speed of the bus was slowed down with a view to avoid any accident. On considering the evidence as a whole we are clearly of the opinion that the accident occurred due to the negligence of the bus driver Nisar Ahmed (respondent 3).
10. Now, coming to the question of compensation, Shri Samdani, learned counsel for the appellants has submitted that the deceased boy Salim Ahmed was a bright student of third standard.
Exhibit P/1 is his progress-report card and according to Shabbir Ahmed (AW 1), the father of the deceased, he would have earned at least Rs. 500/- to Rs. 600/- per month and would have given him Rs. 300/-per month.
11. The sole evidence on the question of income is that of Shabbir Ahmed (AW I), father of the deceased There is no dispute that the appellant Shabbir Ahmed (AW 1) is a Forest Guard earning Rs. 275/- per month. His other son Waheed is a cleaner on a truck, earning Rs. 200/- per month as salary and daily allowance of Rs. 8/- per day.
12. Taking into consideration the various factors as they emerge in evidence we are of the opinion that the boy, Salim Ahmed, who at the time of his death was 15 years of age, as per Ex. P/l, would certainly have started earning after a year or two, as is indicated by the fact that his elder brother Waheed has done at the age of 18 years and in that event he would definitely have been of some monitary help to the appellant parents. As Salim Ahmed, the deceased had survived the hazards and vicissitudes of childhood, and was 15 years at the time of his death and having regard to the status of the family in which he was born and his academic attainments and age as well as to the uncertainties of human life, and having regard also to the fact that his parents were in their thirties at the time of his death and he might have maintained them at least for 25 to 30 years, if alive, we think it right to award a compensation of Rs. 12,000/- to the appellants with interest at the rate of 6% per annum from the date of application (i.e. 16-6-1980) till realisation.
12A. In the result, the appeal is allowed with costs all throughout. Counsel's fee Rs. 200/-, if certified The amount of compensation of Rs. 12,000/-(Rupees Twelve thousand) with interest shall be paid by the respondents to the appellants in person, jointly and severally, before the Tribunal.