The Judgment of the Court was delivered by

R.D Shukla, J.:— This judgment shall dispose of aforesaid Misc. Appeal Nos. 179, 181, 185, 194 and 199 of 1988. All these appeals are directed against the judgment and award dated 14.7.1988 of M.A.C.T, Mandsaur, passed in Claim Case Nos. 63, 64, 65 and 66 of 1987, whereby while awarding compensation of Rs. 15,000/- for the death of Sapna, aged 5 years; Rs. 25,000/- for the death of Reshambai w/o Kanhaiya Lal and Rs. 50,000/- for the death of Kanhaiya Lal, with interest at the rate of 12 per cent per annum from the date of application till realisation with a direction that the same shall be paid by respondent Nos. 1 and 2, i.e, M.P.S.R.T.C and its driver Amol Das. The claim of M.P.S.R.T.C vide Claim No. 66 of 1987 has been dismissed.

2. The brief history of the case is that on 20.10.1983, Kanhaiya Lal (deceased) who was an employee of the Narcotics Department was going in jeep No. MPU 1338 along with his wife and three minor daughters and one minor son and other persons, he was carrying dead body of his father in the jeep up to Ratlam. There was a collision between jeep No. MPU 1338 and motor bus No. MBE 2560 on the highway near the village Daloda. Kanhaiya Lal, his wife Reshambai and minor daughter Sapna died due to severe injuries. The bus owned by M.P.S.R.T.C was coming from opposite side and the same was plying between Mandsaur and Ujjain, which was driven by Amol Das. Babu Singh s/o Laxman was driver of the jeep of Narcotics Department owned by Government of India.

3. Daryaobai filed a Claim Case No. 63 of 1987 as a legal representative for the death of Sapna, who was her granddaughter and claimed a compensation of Rs. 20,000/-; Sitabai, Jagdish and Premlata, all the three minor children through their guardian Daryaobai filed the Claim Case No. 64 of 1987 for the death of their mother Reshambai and claimed compensation of Rs. 35,000/-. Daryaobai, Sitabai, Jagdish and Premlala (Nos. 2 to 4 through their guardian Daryaobai) filed Claim Case No. 65 of 1987 for the death of Kanhaiya Lal and claimed Rs. 2,00,000/- as compensation. M.P.S.R.T.C filed Case No. 66 of 1987 seeking compensation of Rs. 2,000/- for the damages caused to the bus owned by claimant M.P.S.R.T.C

4. According to the claimants in Claim Case Nos. 63, 64 and 65 of 1987, there was a collision between the jeep driven by Babu Singh and owned by Government of India and bus driven by Amol Das and owned by M.P.S.R.T.C The jeep was thrown away and, therefore, the three persons sustained injuries and died immediately. The claimant in Claim Case No. 66 of 1987, on the other hand, filed a claim petition with the contention that the driver of jeep was negligent and dashed against the bus of the M.P.S.R.T.C and caused damage to the bus, as claimed. Thus, the M.P.S.R.T.C in its written statement filed in Claim Case Nos. 63, 64 and 65 of 1987 have asserted that the accident occurred due to rash and negligent driving of motor jeep by Babu Singh.

5. As against it, respondent Babu Singh and Government of India pleaded that the accident occurred due to rash and negligent driving of the bus. In the alternative, sovereign immunity was also claimed.

6. Learned Tribunal held that the drivers of both the vehicles were equally responsible for the accident and thus the driver of M.P.S.R.T.C, Amol Das, also contributed to the accident. As such, the claim filed by M.P.S.R.T.C, i.e, No. 66 of 1987 was dismissed and respondent Nos.] and 2, M.P.S.R.T.C and Amol Das, driver, were made jointly and severally liable for making payment of compensation of Rs. 90,000/- with interest at the rate of 12 per cent per annum from the date of application till realisation of the same (bifurcation has already been shown in earlier paras).

7. M.A Nos. 179, 181 and 185 of 1988 have been filed by claimants for enhancement of the amount of compensation and M.A No. 199 of 1988 has been filed by the M.P.S.R.T.C challenging the award made in favour of the claimants and M.A No. 194 of 1988 has been filed against respondents against the order of dismissal of claim for the compensation of damages caused to motor bus. M.P.S.R.T.C has filed cross-objection in all the three appeals preferred by claimants but in view of the separate appeals filed by M.P.S.R.T.C, cross-objections lose their force and the decision in Appeal No. 199 of 1988 would take (Sic.) raised in the cross-objections as well.

8. The contention of Mr. H.S Rajpal, learned counsel for claimants-appellants, is that the amount of compensation awarded is much lower and the income of deceased Kanhaiya Lal has also been assessed on the lower side.

9. The contention of Mr. Dhupar, learned counsel for M.P.S.R.T.C, is that the accident occurred due to rash and negligent driving of the vehicle by driver of jeep (Babu Singh). The Government of India failed to produce driver Babu Singh and, therefore, the stand taken by N.As Babu Singh and Union of India in that case cannot be accepted.

10. As against it, Mr. B.G Neema, learned counsel appearing for Union of India, has submitted that the accident occurred due to rash and negligent driving of the vehicle by driver of bus and, therefore, the finding of contributory negligence is wrong. It has further been submitted that Union of India has a sovereign immunity in such matters.

11. The first point that arises for determination in the case is as to who is responsible for the accident and whether both the drivers had equally contributed for the accident and collision?

12. Claimants have examined Ramesh, CW 1, for proving the accident and the liability of the drivers but he has admitted that he was sitting in the jeep in the rear side and was drowsing. He was thrown after accident, he became unconscious and gained consciousness in hospital at Mandsaur. Thus, his evidence is of no avail. Kanhaiya Lal, CW 2, examined by the claimants has very clearly stated that he along with Kanhaiya Lal (the deceased), his family members with dead body of father of Kanhaiya Lal (deceased) were coming to Rau from Mandsaur via Ratlam. Near village Daloda Bhavgarh, the bus coming from Ujjain stopped on its left side. The jeep was in its right side and it dashed against a stationary bus. During cross-examination he has affirmed that the bus was stopped on left side and it was the jeep which dashed against the bus. He has also admitted that jeep was driven in a high speed and swinging left and right on the road. During cross-examination by counsel for respondent No. 4, i.e, Union of India, he has admitted that the driver of bus was also driving the vehicle in a high speed and stopped after the accident. Thus he admitted, as the same fact does not find place in report, Exh. D-1, lodged by this witness. Under these circumstances, it will have to be seen as to whether there is any corroboration of the statement of Kanhaiya Lal. Dr. Choudhary, CW 3, has conducted autopsy on the bodies of Kanhaiya Lal, Reshambai and Sapna and proved the fact of injuries. Daryaobai is a witness to other facts, M.P.S.R.T.C has examined its driver Amol Das who was driving the bus involved in the accident. He has stated that before village Daloda, there was some crossing of trucks, he, therefore, stopped his vehicle and meanwhile jeep of Narcotics Department came with high speed and dashed against the stationary bus. There was damage to the glass, angle, indicator and the body of the bus. There is absolutely no challenge to the statement of this witness. Counsel for Union of India has only given a suggestion that since the bus was an express bus, it was running at a high speed of 60 k.m per hour but that fact has been denied by that witness. Thus, Kanhaiya Lal stands corroborated from the evidence of defence witness Amol Das.

13. Union of India has examined Pokhar Lal in support of its contention who has stated that the M.P.S.R.T.C bus came at a high speed and dashed against the jeep.

14. Learned Tribunal has found that both the drivers, i.e, drivers of jeep and bus contributed to the accident but in the absence of statement of Babu Singh who was the driver of jeep of Narcotics Department, the finding cannot be sustained.

15. The statement of Kanhaiya Lal as corroborated by the statement of Amol Das goes to prove that the accident had occurred due to rash and negligent driving of the vehicle by the driver of the jeep. It may also be observed here that if a party specially the owner of the vehicle fails to examine the driver of vehicle involved in the accident, an adverse inference will have to be drawn. This is not the case of respondent Union of India that the driver is not available or his attendance could not be procured despite efforts being made. Thus, it would be deemed that the driver of the jeep was purposely withheld and was not produced in the court for examination and cross-examination. In such a situation, we are inclined to believe Kanhaiya Lal and Amol Das that goes to prove that the accident occurred due to rash and negligent driving of the jeep owned by Union of India. Even otherwise, it is the driver of the vehicle which is required to keep constant vigil on the road and vehicle coming from opposite direction including other vehicles overtaking the vehicle driven by him and, therefore, he is the best person to depose about the manner of accident. We are, therefore, not in agreement with the finding of the learned Tribunal and further hold that the accident occurred due to rash and negligent driving of the vehicle by the driver of jeep of Narcotics Department.

16. The next point that arises for determination is as to whether the Union of India can claim immunity. Our emphatic answer is ‘No’, for the reasons given below:

17. First, the vehicle was being taken by Kanhaiya Lal for carrying the dead body of his father under the permission of the officers of the department. The jeep was attached to Narcotics Department. Though it has been tried to be explained by Pokhar Lal, DW 1, that in fact Kanhaiya Lal was allowed to take dead body of his father only up to Ratlam, as the jeep was on patrol duty and was going to Ratlam itself. Without entering into the controversy, as to whether Kanhaiya Lal was allowed to carry the dead body of his father in jeep up to Indore or was required to arrange for other vehicle after Ratlam, we affirm the finding that the jeep was being taken by Kanhaiya Lal with the consent and permission of the officers of the department as he himself was an employee of the department and that facility of carrying dead body of his father was extended to him and rightly so.

18. Secondly, the accident did not occur in exercise of sovereign function of the State. There is no pleading that the vehicle was being carried in exercise of its sovereign function. As against it, it was admitted that the vehicle was being taken by Kanhaiya Lal with the permission of the officers for carrying the dead body of his father and that permission was granted as he was an employee of the department. Thus, Union of India could not raise plea of immunity on the ground that the accident occurred in discharge of sovereign functions of the State.

19. Learned counsel for Union of India after arguing for some time does not press the point much and rightly so. Reference may be had to a decision reported in the case of Shyam Sunder v. State of Rajasthan, 1974 ACJ 296 (SC).

20. Now the last question that arises for determination in the case is as to what would be the just compensation in the case.

21. Learned Claims Tribunal has awarded Rs. 15,000/- for the death of Sapna who was aged about 5 years. The father of Sapna was a driver, the future is most uncertain, the age of Sapna was also nearly 5 years. It appears that she had not begun even schooling. Under these circumstances, the no fault liability on the date of accident was also not more than the amount awarded. This amount of Rs. 15,000/- appears to be just and proper and calls for no interference.

22. Learned Claims Tribunal has awarded Rs. 25,000/- for death of Reshambai, as against the amount of Rs. 35,000/- claimed by her legal heirs. Reshambai was a housewife, was working only in the house and maintaining her children. There is neither the pleading nor evidence about independent income of Reshambai and, therefore, amount of Rs. 25,000/- appears to be just and proper and calls for no interference.

23. Learned Claims Tribunal has awarded Rs. 50,000/- for the death of Kanhaiya Lal. Admittedly, Kanhaiya Lal was a driver in the Narcotics Department. Tribunal has estimated his income at Rs. 601/- p.m Shantilal, PW 4, has stated that on the date of the incident the total pay of Kanhaiya Lal was Rs. 601/- p.m Tribunal while assessing the dependency has committed an error by arriving at a figure of Rs. 200 p.m Looking to the number of members of the family and children, only ⅓rd deduction on the personal expenditure of Kanhaiya Lal ought to have been done and if the same principle is applied and ⅓rd amount is deducted, the dependency of the family would come to Rs. 400/- p.m Kanhaiya Lal was aged about 34 years, as found by the Tribunal. We also affirm the same. Learned Tribunal has applied a multiplier of 15 but looking to the guidelines issued by the Apex Court in the case of General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC), a maximum multiplier of 16 can be applied. In that case a multiplier of 12 was applied for the death of a person aged about 39-40 years. Thus, in this case multiplier of 14 ought to have been applied. Thus, the general compensation awardable to the claimants in Claim Case No. 65 of 1987 would come to Rs. 67,200 which may be rounded up to Rs. 68,000/-. Learned Tribunal has awarded for the loss of love and affection to the children (Sic.) and Rs. 4,000/- for the loss of her son to Daryaobai, that appears to be correct. An interest of 12 per cent also appears to be just and proper.

24. In view of above, the claimants are entitled for compensation of Rs. 32,000/- more for the death of Kanhaiya Lal. Since the accident occurred due to rash and negligent driving of the vehicle jeep No. MPU 1338 by the employee of Union of India (i.e, Babu Singh) therefore, Union of India is bound to make payments of compensation.

25. The M.P.S.R.T.C has claimed compensation of Rs. 2,000/- for the damage caused to the bus No. MBE 2560, which has been disallowed by Tribunal. In our opinion, in view of the fact that accident occurred due to rash and negligent driving of the jeep by Babu Singh, employee of Union of India, M.P.S.R.T.C is also entitled to damages sustained in repairing the vehicle, i.e, motor bus No. MBE 2560 which shall be payable by Union of India under the principle of vicarious liability. Though the M.P.S.R.T.C has filed cross-objection in M.A Nos. 179, 181 and 185 of 1988 but in view of the appeal filed by it vide M.A No. 194 of 1988, no separate order is required in the cross-objections and the same stand disposed of accordingly.

26. As a result, Misc. Appeal Nos. 179 and 181 of 1988 filed by the claimants are dismissed with a modification that the compensation shall be payable by Union of India under the principle of vicarious liability. There shall be no order as to costs.

27. M.A No. 185 of 1988 is partly allowed. The claimants are entitled to a compensation of Rs. 82,000/- which shall be payable by Union of India under the principle of vicarious liability, as referred above. The claimants are further entitled to an interest at the rate of 12 per cent per annum from the date of application till realisation and to the costs of this appeal. Counsel's fee Rs. 500/- in this appeal.

28. M.A No. 194 of 1988 filed by the M.P.S.R.T.C stands allowed. The appellant shall be entitled to a compensation of Rs. 2,000/- with interest at the rate of 12 per cent per annum from the date of application till realisation of the same from Union of India. The appellant shall further be entitled to costs of this appeal. Counsel's fee Rs. 500/-. M.A No. 199 of 1988 filed by the M.P.S.R.T.C stands allowed to the extent that all the compensation awarded shall be payable by Union of India under the principle of vicarious liability. Appellants shall be entitled to costs of this appeal. Counsel's fee Rs. 500/-.

29. Orders accordingly.