Gokal Chand Mital, J.:— Hari Ram who used to carry on the business of repair of tyres, aged about 45 years, was coming on scooter No. HRE-1037 on 21-6-1979 at about 7-15 A.M from Naraingarh and after entering the Haryana Highway was to go to Shahzadpur. After he had entered the Highway and was on the left side of the road, a half-body truck No. HRA-2021 owned by Girdhari Lal and driven by Hoob Raj, came from the opposite side. The truck ran over the scooterist and he was dragged for about 8/10 feet according to the statement of the driver of the truck and for about 30/40 feet according to the witnesses of the claimants. The truck stopped after hitting the tree. The widow and minor children of the deceased filed an application before the Motor Accident Claims Tribunal and claimed damages of Rs. 40,000/-. The claim was limited to Rs. 40,000/- in view of ad valorem court-fee which would have been payable in case higher compensation had been claimed, which the widow and her children were not in a position to pay. Since the truck was insured with the New India Assurance Co. Ltd., it was impleaded as respondent besides the driver and owner of the truck.

2. On the contest of the parties the following issues were framed.

1. Whether the motor accident involving the death of Hari Ram occurred due 10 rash or negligent act of driving on the part of Hoob Raj respondent No. 1? OPP.

2. If issue No. 1 is proved, to what amount the claimants are entitled as damages and if so, from whom? OPA.

3. Whether the claim petition is vague and incomplete, as alleged, and if so, to what effect? OPR.

4. Whether the Insurance Policy was issued after the accident had taken place, as alleged if so to what effect. OPR.

5. Whether the vehicle involved in the accident was being driven by a person who did not hold a driving licence, as alleged, and if so, to what effect? OPR.

6. Relief.

3. After evidence was led, the Tribunal by order dated 2-3-1982 dismissed the claim application after recording a finding that the deceased was negligent in driving the scooter. This is claimant's appeal.

4. During the pendency of the appeal, an application under Order 41 Rule. 27 of the C.P.C was filed by the claimants for permission to produce the order of the learned Sessions Judge dated 1-2-1983 by which the conviction of Hoob Raj under section 304-A of the I.P.C was maintained as he had withdiawn the appeal against the finding of guilt recorded against him by the Magistrate, and also to produce the certified copy of the statement made by Hoob Raj before the learned Sessions Judge wherein he had accepted his guilt under section 304-A of the I.P.C regarding the accident in dispute. The application was ordered to be heard along with the appeal.

5. After going through the evidence on the record, I am of the view that the Tribunal was in error in absolving the driver of the truck and in placing the negligence on the deceased. The site-plan Exhibit A.W 5/1 has been proved by Devi Krishan A.S.I who appeared as A.W 5. The site-plan gives the spot where the accident occurred, the distance up to which the deceased was dragged by the truck and the spot where ultimately the truck got struck-up under the tree. It further shows that the direction where from the truck was going and the direction of the road from which the deceased had entered on the main road. When this site-plan is seen along with the statement of the driver as R.W 1 and those of Joginder Lal (A.W 6) and Kidar Nath (A.W 7), (the two eye-witneses) along with the statement of the other witnesses, the only irresistible conclusion is that it was the driver of truck who was negligent in driving the truck. The driver of the truck has admitted in cross-examination that he had seen the scooterist when he took turn towards the National Highway from the Naraingarh road and that he had applied the brakes when he was at a distance of about 10 feet from the place of impact. The site plan shows that the truck driver had to pass through another tri-junction before reaching tri-junction for the road coming from Naraingarh. The first trijunction led to Shahzadpur. It is true that the truck driver was on the highway but he could not be oblivious of the fact that he would be meeting two tri-junctions one after the other in close proximity from both sides and, therefore, he had to become cautious before crossing the first tri-junction and if he had taken that precaution, the accident could not have taken place. Inspite of seeing the scooterist on the Highway, who had entered from the second tri-junction on the Highway, he tried to apply the brakes only when he was about 10 feet away. The site plan shows where the impact took place. The impact has taken place at the point which is on the right side of the truck, i.e left side of the scooterist. Therefore, it is clear that the scooterist had reached the left side of the road long before the impact took place. It was only because of the negligence of the truck driver that the scooterist was run over by the Truck. The truck driver has further admitted that the scooterist was dragged for about 8/10 feet and then the truck rammed into a tree which halted the truck. All these facts speak for themselves about the extreme negligence of the truck driver. While it is true that a vehicle coming on the Highway has a right of precedence and another coming from the side road, has to be cautious and has to give way to the truck coming on the Highway. But on the facts of the this case I am of the view that according to dirver of the truck he had sighted the scooterist from a long distance and yet he went on the wrong side, hitting the scooterist at point ‘A’. The accident could not have taken place if the truck had also been on its left side. Hence, I reverse the findings of the Court below and hold that it was the truck driver who was guilty of negligence.

6. Before parting, the argument raised on behalf of the owner of the truck and the Insurance Company may be noticed. They had argued that it his been held in (1) Mandip Kaur v. Ram Lal . 1985 A.C.J 570., (2) Piara Singh v. Gian Kaur . 1984 86 PLR 331. and (3) Manjit Kaur v. Gurmail Singh . 1985 A.C.J 800., that when an accident takes place between a vehicle coming from the side road, the negligence of the vehicle on the main road is ⅓rd and that of the vehicle coming from the side road is ⅔rd and, therefore, at best the truck driver can be negligent only to the extent of ⅓rd and the compensation payable would be apportioned in that share. On the peculiar facts of this case, even if it is assumed that the negligence of the truck driver was ⅓rd, even then I find that the amount of Rs. 40,000/- would be payable to the claimants as the total amount payable would be about Rs. 1,20,000/-. Therefore, viewing the case from any angle, since the claim is limited to only Rs. 40,000/-, it has become wholly unnecessary to give a definite finding that the negligence of the truck driver was to the extent of more than ⅓rd.

7. Adverting to the quantum of compensation, the deceased was carrying on the business of tyre repairs and was owning a scooter besides having a monthly income of Rs. 800/-, or Rs. 900/-. Smt. Maya Devi widow of the deceased had appeared as A.W 2 and stated so. There was no challenge to her statement in cross-examination. She was asked as to who was then doing that business and she replied that her husband's younger brother was doing the business. The younger brother started the work as an untrained person and his earning had to be less. Hence, I hold that Rs. 800/- to Rs. 900/- per month was the income of the deceased. Out of that Rs. 600/- would be the monthly dependency. In Smt. Channo Devi v. Shri Het Ram . 1983 85 PLR 584., in the case of death of 48 years old person, 16 years' multiplier was applied. In this case, the deceased was 45 years old. Therefore, applying 16 years' multiplier, the amount payable comes to 1,15,200/-. Even if ⅓rd compensation was held to be payable by the owner of the truck and its driver, it would come to slightly less than Rs. 40,000/- and on rounding up I hold that they are liable to pay Rs. 40,000 to the claimants.

8. This brings me to the consideration of issue No. 4 on behalf of the Insurance Company, it is argued that the accident took place at about 7.30 A.M whereas the truck was got insured on the same day after 10.00 A.M after the opening of the office and, therefore, the Insurance Company is not liable. In Jaikrishandas v. Chiruthar Ammal . 1984 A.C.J 530 D.B. and United India Fire and General Insurance Company Ltd. v. Srinivsan . 1980 A.C.J 413 D.B., it has been ruled that if the insurance policy is obtained on the same date after the accident, yet it would operate from the previous midnight and, therefore, the insurance company would be liable. The learned counsel for the insurance company could not show any judgment to the contrary. Following the aforesaid two decisions, I hold that the insurance company is liable to re-imburse the insured, i.e the owner of the truck Hence, issue, No. 4 stands decided accordingly.

9. Adverting to the application for leading additional evidence, there was no opposition to the grant of the same. Hence, the application is hereby allowed. I have found the driver of the truck guilty of negligence. A reading of the statement of the driver made in the proceedings under section 304-A of the I.P.C shows that he withdrew the appeal against the finding of the trial court holding him guilty of the gross negligence. Hence, my finding is further supported by the admission of guilt by the driver of the truck.

10. For the reasons recorded above, the appeal is allowed with costs and it is ordered that the claimants would be entitled to Rs. 40,000/- as compensation from the owner and driver of the truck jointly and severally and the insurance company shall re-imburse that amount. The claimants would also be entitled to 12% interest from the date of filing of the claim application till the awarded amount is realised. The insurance company would also be liable to re-imburse the interest.

R.M.S

Appeal allowed.