1. This judgment will dispose of two first appeals—one preferred by Oriental Fire and General Insurance Co. Ltd. (No. 10 of 1964) and the other by Des Raj (No. 28 of 1964) against an award made by the Tribunal under the provisions, of the Motor Vehicles Act, hereinafter referred to as the Act, by which a sum of Rs. 3,600/- was made payable as compensation by the first of them to Kasturi Lal. Des Raj appellant was the owner of truck No. P.N.F 5509 and he had insured it with Messrs Oriental Fire and General Insurance Co. Ltd. Kulwant Rai was his driver. The truck met with a serious accident on the G.T Road between Panipat and Sonepat on 10th November, 1961, causing the death of Sham Lal who was travelling in the truck at the time. Kasturi Lal father of deceased filed an application under section 110 of the Act before the Tribunal for grant of Rs. 50,000/- as compensation. The deceased was carrying the wheat belonging to Messrs Roshan Lal Kasturi Lal at the time of the accident to Delhi. He is alleged to be one of the proprietors of this firm. The accident is said to have been caused due to the negligence of the driver of the truck.
2. The Oriental Fire and General Insurance Co. Ltd. insurers pleaded that in terms of the policy they were not liable to pay any compensation to the heirs and the dependants of deceased Sham Lal. Des Raj pleaded that the accident was not caused by any negligent act of his driver Kulwant Rai who tried his best to avoid the accident but due to sudden dazzling light of the car approaching from the opposite side he lost control of the vehicle resulting in the unfortunate occurrence. He further urged that Sham Lal deceased was not one of the proprietors of Messrs Roshan Lal Kasturi Lal whose bags of wheat were being carried at the time in the truck. He finally maintained that the insurers were responsible for payment of the compensation, if any, allowed to the applicant.
The Tribunal framed the following issues:—
(1) Whether the accident was due to the negligence of the driver of truck No. P.N.F 5509 on 10-11-1961?
(2) What is the quantum of compensation due, if any, and from whom to whom?
(3) Relief.
3. He came to the conclusion that the driver of the truck was 50 per cent responsible for the accident and further held that the insurers in terms of the insurance policy and section 96 of the Act were responsible for payment of compensation, which he assessed at Rs. 3,600/-, to the applicant.
4. The learned counsel for Messrs Oriental Fire and General Insurance Co., Ltd., urged that in view of the terms of the policy and the provisions made in section 95 of the Act, the appellants were not liable to pay compensation to the heirs of the deceased on behalf of the owner of the truck because deceased was not being carried in the truck for hire or rewarded or by reason of or in pursuance of a contract of employment. He relied on a Full Bench decision of this court in Oriental Fire and General Insurance Co. Ltd. v. Gurdev Kaur . 1967 A.C.J 158, and New India Assurance Co. Ltd. v. Sharfi Devi . F.A.O No. 128 of 1961 decided on 19.5.67 Punjab & Haryana High Court., which no doubt support him. The learned counsel for Des Raj owner of the truck on the other hand maintained that Sham Lal deceased was not proprietor of Messrs Roshan Lal Kasturi Lal consigners but was in their employment when their goods were being carried on hire in the truck to Delhi at the time of the accident.
5. There is hardly any evidence on the record to substantiate his contention. On the other band Kasturi Lal A.W 6 in his statement unequivocally brought out that the deceased was also a proprietor of the consignor-firm and thus owned the wheat which was being carried in the truck at the time of the accident. This fact was also mentioned by him in clear terms in the application filed before the Tribunal. It is correct that consigner-firm is styled as Messrs Roshan Lal Kasturi Lal and not after the name of the deceased. Roshan Lal is brother of Kasturi Lal and the deceased was son of Kasturi Lal. The firm appears to be a joint Hindu family concern and so the deceased worked in the firm as one of the proprietors and not as an employee. The Tribunal's finding that the deceased was proprietor of the consignor-firm is based on evidence and so cannot be interfered with. The Tribunal in view of the above Full Bench decision of this Court was not justified in making the insurers liable for payment of compensation to the heirs of the deceased and as such the appeal preferred by them succeeds.
6. The learned counsel for Des Raj appellant urged that the accident was not caused due to any negligence on the part of the driver of the truck and that the amount of compensation had been assessed on the high side. The applicant examined Tek Chand A.W 4 and Abhe Ram A.W 5 as eye-witness of the accident. The first of them deposed that a little before sun-rise when he was going on foot along with Abhe Ram, he saw a car coming from Delhi side passing a truck and soon after the truck which was coming from Panipat side struck against the bridge after dismantalling a portion thereof collided against a neem tree and got tilted. The wheat bags got scattered and one of the occupants of the truck died who was taken in another truck to Panipat. He said that the truck was going slightly fast but hastened to add that it was going on normal speed. He admitted in cross-examination that it was on hearing the noise he looked behind and saw the effects of the accident and did not see the truck actually striking the culvert and the neem tree. Abhe Ram whose fields are close to the spot corroborated the statement of the above witness. He explained that the man who was sitting on the top of the truck struck against the neem tree and his head was chopped off and thrown in a nearby ditch. The description of the accident as given by them leaves no doubt in my mind that the driver of the truck was negligent in the performance of his duties. The truck was going on the G.T Road and as such there was enough room for the driver to get out of the range of the car's dazzling light and to save the truck from running into the culvert and then into the neem tree. The fact that he was not able to control the truck within a reasonable distance shows that he was going fast. The Tribunal was thus right in observing as he did that the accident was caused due to the negligence of the driver of the truck.
7. The manner in which the accident occurred speaks for itself and goes a long way in supporting the Tribunal's finding. The amount of compensation awarded to the applicant, in my opinion, is just adequate and cannot be reduced on any account. The deceased was Matriculate and a young man of 18 years of age. His earning capacity at the rate of Rs. 100/- per mensem cannot be termed as unreasonable. The Tribunal from the account books of the consignor firm found that its income was Rs. 2,400/- per annum and so the share of the deceased came to about Rs. 100/- per mensem. The learned counsel for Des Raj appellant urged that the deceased was not owner of one-half share in the firm and so a mistake had been committed in assessing his share of the income in the firm. The applicant has stated that the deceased used to run the firm on his behalf and as such the income derived therefrom in regard to the share of his branch can be attributed to him. The Tribunal in the circumstances of the case very rightly came to the conclusion that the decased's income came to Rs. 100/- per mensem and on that basis the total compensation payable to the applicant was properly determined.
8. For the above reasons, the appeal preferred by Oriental Fire and General Insurance Co. Ltd. is allowed and the appeal filed by Des Raj is dismissed. A sum of Rs. 3,600/- by way of compensation will be payable by Des Raj owner of the truck to Kasturi Lal applicant, father of the deceased Sham Lal. There will be no order as to costs.
9. Appeal allowed.