Sitabai And Others v. Ishak Hussain And Another

1. This appeal is directed by the claimants against the award dated 11.10.1996 passed by Motor Accidents Claims Tribunal, Rajgarh (Biaora) in Claim Case No. 8 of 1989 whereby compensation of Rs. 15,000 was granted.

2. The appellants-claimants' case, in brief, was that on 14.11.88 the respondent-non-applicant No. 1, the owner and the driver of Matador bearing registration No. MID 9056 took the deceased Gulabsingh in his vehicle and left Sarangpur for Rajgarh for bringing one patient to Indore. When they came 6 km. towards Pachore, the vehicle left the road and dashed against a tree as it was being driven in a rash and negligent manner. The deceased sustained injuries. He was taken to Biaora Hospital where he died on the next day, i.e., on 15.11.1988. Respondent No. 1 lodged false report at P.S. Rajgarh that the vehicle was being driven by the deceased. The deceased was working as helper in M.P.E.B. on the salary of Rs. 1,000 per month. The claimants filed claim case seeking compensation of Rs. 3,00,000. Respondent No. 1 contested the claim. He admitted that the deceased died in the motor accident. His case was that accident occurred due to rash and negligent driving by deceased himself. He pleaded that this' vehicle was insured with respondent No. 2 and in case if claimants are found entitled to compensation it has to be paid by respondent No. 2. Respondent No. 2 also contested the claim and in indirect way admitted the death of the deceased in motor accident and in alternative it was pleaded that the vehicle was not insured and if it was found to have been insured, the driver of the vehicle was not having valid driving licence and, therefore, it was not liable to pay compensation. Learned Claims Tribunal on appreciation of evidence held that it was not proved that the deceased was driving the said vehicle. However, it awarded the compensation of Rs. 15,000 under no fault liability under Section 92-A of the Motor Vehicles Act, 1939. The claimants have come up in appeal for the enhancement of compensation amount.

3. Mr. Abhyankar, learned Counsel for the appellants, submitted that the learned Tribunal committed error in awarding only Rs. 15,000 under no fault liability. He submitted that it has been proved from the evidence of Sitabai that respondent No. 1 was driving the vehicle in question and he had taken the deceased with him and the respondents did not lead any evidence in rebuttal, therefore, it ought to have been held that the accident occurred due to rash and negligent driving of the vehicle by respondent No. 1. On the other hand, Mr. Shukla, learned Counsel for the respondent No. 2, supported the impugned award.

4. We considered the arguments advanced by the counsel for both sides and perused the record. The learned Tribunal considered the statements of the witnesses which are not on record of this case. It appears that he must have seen the case-diary of the offence under Section 304A, Indian Penal Code registered in connection with this accident. However, it has come in the evidence of Sitabai, the widow of the deceased that on the date of accident, the respondent No. 1 Ishak Mohd. (owner and driver of this vehicle) had come to her house driving his vehicle. He called her husband and got him seated by his side on the cleaner side. She made it clear that her husband did not know how to drive. The respondents have not led any evidence in rebuttal and nothing could be elicited in cross-examination of Sitabai which may render her testimony unreliable. From her evidence it is clear that respondent No. 1 was driving the vehicle. He called the deceased and got him seated by his side. Admittedly, this vehicle met with accident on Agra-Bombay Road, 6 km. away from Sarangpur towards Pachore. It left the road and dashed against a tree. The respondent No. 1 was driving the vehicle, when he brought the deceased from his house. He did not enter into the witness-box. Under such circumstances, the presumption is that he was driving the vehicle at the time of accident.

5. In this case, the claimants could not examine any eyewitness of the accident. It was difficult for the claimants to search an eyewitness as the claimants were not present on the spot at the time of accident. This difficulty is avoided by applying the maxim res ipsa loquitur. Their Lordships of the Supreme Court in case of Pushpa-bai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), observed:

The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident 'speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care.

In this case, the respondent No. 1 was driving the vehicle which left the road and dashed against a tree. In view of this maxim, the burden shifts on the respondent No. 1 to prove that he was not negligent. It was in the special knowledge of respondent No. 1 as to how the vehicle left the road and came down and struck against a tree. The respondent No. 1 did not examine himself. Under such circumstances, adverse inference that he drove the vehicle in a rash and negligent manner as a result of which this accident occurred, shall be drawn against him. The learned Tribunal committed error in not applying this maxim. We hold that the accident occurred due to rash and negligent driving of the vehicle by respondent No. 1.

6. Now we come to the question of compensation amount. It has come in the evidence of Sitabai that her husband was helper in M.P.E.B., Rajgarh. His pay was Rs. 1,100 per month. Mohanlal Shroti, an employee of M.P.E.B. and Suresh Bana-wade, CW 2, also deposed that the deceased was a helper in M.P.E.B. and was receiving pay of Rs. 1,100 per month. It is thus clearly proved that the earning of the deceased was Rs. 1,100 per month. On deducting 1/3rd of it for personal expenses of the deceased, the dependency comes to Rs. 700 per month, yearly Rs. 8,400. No evidence has been led to prove the age of the deceased at the time of accident. The age of Sitabai was 25 years at the time of accident. Mr. Abhyankar, learned Counsel invited our attention to a document prepared by the police and argued that it has been mentioned in this document that the deceased was aged about 27 years. But this document has not been proved, therefore, it cannot be taken into account but looking to the age of the claimant which was 25 years, we may assume that the deceased was not more than 40 years at the time of accident. Looking to the facts and circumstances of the case, we select multiplier of 15. By multiplying it with the multiplicand, the amount comes to (Rs. 8,400 x 15) : Rs. 1,26,000. Appellant No. 1 is entitled to Rs. 4,000 for loss of consortium and Rs. 2,000 for funeral expenses of the deceased. Thus, the amount of compensation comes to Rs. 1,32,000. From the perusal of the record of the Tribunal it appears that the claimants were very negligent in prosecuting this case. They took six years in producing their evidence. Under such circumstances, we direct that the interest shall be payable on the above amount for a period of 6 years only.

7. In the result, the appeal is partly allowed. The impugned award is modified and it is directed that the respondents shall pay Rs. 1,32,000 severally and jointly with interest at the rate of 12 per cent per annum only for a period of six years in all (after adjusting the amount already deposited) within two months from the date of receipt of copy of this judgment, failing which the interest shall be payable from the date of claim application till realisation at the rate of 12 per cent per annum. There shall be no order as to costs.