1. This is an appeal against the Judgment and Award of the learned Motor Accidents Claims Tribunal, Jodhpur (hereinafter referred to as 'the Tribunal') dated May 20, 1982 whereby the learned Tribunal has dismissed the claim of the claimants-appellants.

2. The facts briefly stated are: that on 7-11-1979, at about 2 P.M., Mst. Pushpa aged about 3 years was crushed by a Military Truck bearing No. 77C-18254-A, which was driven by non-applicant-respondent No. 1 Devilal, who was driver in the Military. This incident has been witnessed by PW 3 Kanhaiyalal and Mst. Kamla, the mother of deceased Pushpa. It is alleged that PW 3 Kanhaiyalal noted the number of the truck and gave one slip bearing that number of the truck to the wife of applicant-appellant No. 1 Amarlal as Amarlal has gone to attend a funeral of his tenant. He was informed about the accident. He came to his home and gathered all informations and then lodged its report at Police Station, Mohamandir at about 3-15 P.M. The copy of the F.I.R. has been marked Ex. 2. In this F.I.R. it has been claimed that this accident has been done of non-applicant-respondent No. 1 Devilal, who is driver in the Military. The names of the eye witnesses have also been disclosed and in the further enquiry by the Police Officer, he has disclosed the number of the truck as 18245 instead of 18254. The Police registered a case and seized the truck bearing No. 77C-18254-A. The case against the accused Devilal was challaned. The claimants-appellants preferred their claim before the Tribunal, wherein it has been contended that Mst. Pushpa died at the spot instantaneously. Had she remained alive, she should have started earning at the age of 11-12 years and would have contributed to the family upto the age of 20 years. Her income has been assessed at Rs. 300/- per month and, therefore, Rs. 25,000/-have been claimed as damages. The damages have been claimed only on account of the loss of income of her contribution to the family. No claim has been made on account of mental agony, loss of love and affection or on any other count. The non-applicants-respondents filed their separate written statements and have contended that this accident has not taken place by this vehicle because at the relevant time, this truck was in the duty of Capt. B.K. Sethi, who came to Jodhpur on Government duty between 1 P.M. to 3 P.M. and therefore, it did not move out of the military area. It was submitted that the claimants-appellants are not entitled to any compensation. The non-applicant-respondent No. 1 Devilal has further taken a plea that relations between the family of the claimants and his family were strained long before this accident and a case was pending between his father and the father of applicant-appellant No. 1 Amarlal and therefore, he has been falsely entangled in this case.

3. On the basis of these pleadings of the parties, issues were framed and' the parties led their evidence. After hearing both the parties, the learned lower court (learned Tribunal) came to the conclusion that this acci dent has not taken place by this truck. It has held the testimony of PW 3 Kanhaiyalal is unreliable and has placed great reliance on the testimony of Maj. B.K. Sethi. However, it has assessed the damages at Rs. 6000/- while relying on a decision of the Karnataka High Court in Syed Patel v. N.H. Doddabasappa and Ors. 1982 ACJ 1 and has held that the claimant, if they can succeed in their claim are entitled to get damages of Rs. 6,000/- on account of the death of this girl but their claim has been dismissed.

4. Aggrieved against this Judgment, the claimants-appellants have preferred this appeal.

5. I have heard Mr. H.L. Panwar, learned Counsel appearing for the claimants-appellants and Mr. H.A. Parekh, Mr. D.R. Bhandari and Mr. N.P. Gupta, learned Counsel appearing for the non-applicant-respondents, and have carefully gone through the record of the case.

6. Mr. H.R. Panwar, learned Counsel appearing for the claimants- appellants has submitted that while appreciating the evidence on record, the learned Tribunal has misdirected itself. According to him, P.W, 3 Kanhaiyalal is an independent witness, who has no enmity whatsoever with Shri Devilal and therefore, there was no reason for him to falsely entangle Shri Devilal in such an accident. Moreover, the report of the accident was lodged soon after the occurrence and in that report too, the name of Shri Devilal has been mentioned as the Driver of the Truck, which caused this accident. The names of the eye witnesses have also been disclosed in the F.I.R. It is true that the number of the truck has been disclosed as 18245 in stead of 18254 but that was quite possible in the facts and circumstances of this case. According to him, when a person, whose daughter has been crushed by a Truck must be in great mental agony on account of the sudden demise of her daughter and if he has committed any mistake in disclosing the number of the truck, that cannot be made a ground to rejection of bis claim. Moreover, the testimony of the eye witnesses has been rejected on very filmsy ground. It was further contended that the contention of the non-applicant-respondent that this truck was in the duty of the Maj. B.K. Sethi is totally wrong because no log-book of the Truck has been produced to shew that this truck was in the duty of Maj. B.K. Sethi. He further submitted that nobody can foise a false case on a driver of Government vehicle, if he is on duty. In this respect, Mr. Panwar has placed reliance on a decision of their lordships of the Supreme Court in Gopal Krishnaji v. Mohd. Haji Latifi , wherein it was held that a party in possession of best evidence which would throw light on an issue in controversy withholding it, the Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. It was further held that party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. Mr. Panwar has, therefore, submitted that it was the duty of the non-applicant-respondents to have produced in evidence the log book of the vehicle maintained by their department. He has even gone to the extent to say that after the accident, such a false record could have been prepared by the parties concerned because according to the Rules of the Military, if the vehicle is put on the duty of the some Officer then that vehicle cannot be moved out of the Military area without the permission of the Officer concerned for some personal work and when the truck has caused some accident, the officer concerned in whose duty the truck was placed at his disposal, is responsible for that and to save himself from that controversy, such a false record could have been prepared by the Officer concerned.

7. Mr. Panwar has further submitted that the learned Tribunal has relied on certain portion of the police statement of Shri Amarlal without putting that statement to the witness in his cross-examination, which according to him, could not have been done by the learned Tribunal. In this respect, he has placed reliance on a decision of the Punjab and Haryana High Court in Jagannath v. Ganesh 1901 A.C.J. 483, wherein it has been held that the previous statement made by a witness to the Police cannot be used against him unless that particular portion of the statement is put to the witness in his cross-examination.

8. Reliance was also placed on a decision of the Punjab and Haryana High Court in 1986 ACC 127, wherein it has been held that if the witness has deposed differently before the Tribunal to the statement which he has made in a criminal case then the contents of that statement cannot be used against him unless those contents are put to him and his explanation is obtained.

9. Mr. H.M. Parekh and Mr. N.P, Gupta, learned Counsel appearing for the non-applicants-respondents have submitted that the learned Tribunal has given a very well reasoned judgment. It has given cogent reasons why the testimony of PW 3 Kanhaiyalal is unreliable and why the testimony of Shri B.K. Sethi is reliable. They have further submitted that Maj. B.K. Sethi is a military Major and he is not expected to speak lies simply to save his subordinate. Moreover, if the appellate court proceeds to reverse a finding of the trial court then it must bestow proper attention to those material and vital aspects of the case, which were considered by the learned lower court, and if that is not done, then such a decision cannot be sustained. Reliance in this connection was placed on a Division Bench decision of this Court in Kesholal v. Ram Dayal 1960 R.L.W. 595, wherein it has been observed that the first principle is that where the judgment of the trial court is based upon on appreciation of oral evidence in the case, the appellate court ordinarily ought not to interfere with the trial court's appraisal of the evidence, except on a point of principle, where the judgment is so manifestly erroneous and against the weight of evidence that the appellate court cannot but set aside the judgment. The reason is that the trial court had the advantage of watching the demeanour of the witnesses who appeared before it and testing their veracity which advantage is not available to the court of appeal. The other principle which has to be borne in mind by the lower appellate court is that if the trial court in coming to its finding, has given certain reasons which are vital and clearly emerge on the evidence on record justifying his finding, it in the duty of the lower appellate court to consider those reasons before reversing that finding.

10. Reliance was also placed on a decision of their lordships of the Supreme Court in C.K.S. Iyer v. T.K. Nair , wherein it has been held that the appellate court should be slow in disturbing findings reached by lower Courts, if they have taken all relevant facts into consideration. It was, therefore, contended by Mr. H.M. Parekh and Mr. N.P. Gupta that the findings arrived at by the learned Tribunal should not be disturbed.

11. It was further contended by Mr. H.M. Parekh and Mr. N.P. Gupta, learned Counsel appearing for the non-applicants-res pondents that in addition to PW 3 Kanhaiyalal the occurrence has been seen by the wife and sister of Shri Amarlal but they have not been produced and so, an adverse inference should be drawn against the claimants for their non- production. In this respect, reliance was placed on a Division Bench decision of the Calcutta High Court in Shivaprasad v. Prayagkumar AIR 1935 Cal 30, wherein it has been held that adverse inference from non- production of evidence is one of the strongest presumptions known to law and the law allows it against a party who by his tortious acts, withholds the evidence by which the nature of his case would be manifested.

12. Mr. H.M. Parekh and Mr. N.P. Gupta, learned Counsel appearing for the respondents have placed great reliance on the evidence of OPW-2 Maj. B.K. Sethi and have submitted that his evidence in highly reliable as he had no grouse against the claimants and he is not obliged to support his subordinate and, therefore, the learned Tribunal has rightly accepted his testimony as reliable and so, the findings of the learned lower court should not be disturbed.

13. I have given my most careful and earnest consideration to the submissions made at bar by both the learned Counsel appearning for the parties.

14. It is the golden rule of the law of evidence that evidence is to be weighed and not to be in counted. It is true that the wife and sister of claimant-appellant No. 1 Amarlal have not been produced, who are alleged to be the eye witnesses but even if they had been produced, they would not have said that Devilal has not caused this accident and so, simply because they are ladies and they have been withheld no adverse inference can be drawn against them. Of course, it has been the case of the claimants that these two witnesses have seen the occurrence and it was the duty of the claimants to have produced them but even if they have failed to produce them, it cannot be held that if the wife and sister of Shri Amarlal would have been produced, they would have stated against their own pleadings. Had they been produced, their evidence could have been criticised on the ground that they are interested parties being the mother and sister of the father of the deceased and therefore, simply because these two witnesses have not been produced, no adverse inference can be drawn against the claimants because their non-production does not arise on account of and tortious act of the claimants. There are certain salients facts of the case which have been overlooked by the learned Tribunal and which have very great bearing on the decision of the case. This accident took place at about 2 P.M. It is an admitted case of the parties that Amatlal, Kanhaiyalal and Devilal are living in the same locality and in the same lane. Actually, the house of Amarlal and Devilal are in front of each other and the house of Puran Singh is situated just adjacent to the house of Amarlal in which PW 3 Kanhaiyalal was residing at the relevant time. It has not been disputed by Mr. H.M. Parekh and Mr. N.P. Gupta, learned Counsel appearing for the non-applicants-respondents that the accident has occurred and Mst. Pushpa has been crushed by a truck.

15. What has been disputed by the non-applicants-respondents is that neither this vehicle bearing No. 77C-18254-A was involved in this accident nor the vehicle which has caused this accident was driven by non-applicant Devilal. At the time of the accident, Amarlal was not present but he went to participate in the funeral of his tenant. He was informed by some other person of the locality that his daughter has been killed in an accident Much stress has been laid by the learned Tribunal on the fact that the name of that person has not been disclosed. 'Prithwipura' is a big Mohalla consisting of about 8000 voters. If some body came and told him that his daughter has been killed in an accident, it is quite possible that on account of a sudden shock, Amarlal would not have taken note of that wan and so, no adverse inference can be taken on that account and this fact cannot make the testimony of Amarlal unreliable. Amarlal immediately came to his home. Of course, he has stated before the police, that Kanhaiyalal met him there and informed about the number of the truck, which caused the accident but now, he has stated in his cross-examination that Kanhaiyalal met him suddenly and that is what has been stated by Kanhaiyalal in his testimony before the learned Tribunal but even if it is held that Kanhaiyalal met Amarlal before the report was lodged then too, in the report, the name of the driver Devilal has been disclosed and in the further enquiry made by the Investigating Officer, even the number of the vehicle has been given by him may be that the number given by him was slightly erroneous. The report of the incident has been lodged within 45 minutes of the accident. Thus, the report was very prompt and in that report, the name of the driver of the truck, which caused the accident has been disclosed. Moreover, the fact that the accident has been caused by Devilal by driving a Military truck has also been mentioned in that report. The names of the eye witnesses have also been disclosed in that report. Even in further enquiry, the number of the truck has been disclosed and, therefore, this allegation cannot be considered as an after thought. If a man was on duty and he did not come to the lane then it was impossible for any man to facist a false case specially against a man who was expected to be on told Devilal to stop but Devilal categorically told him that the vehicle is on Govt. duty and, therefore, he cannot stop Thus, this much is clear that this vehicle was brought to the house of Devilal while he was on Govt. duty, may be with the permission of Maj. B.K. Sethi and may be without his permission but this much is clear that this has been misused and Devilal was very much cognizant of that fact and, therefore, he rushed back to the place of his duty and this is the reason why Maj. B.K. Sethi has tried to help his subordinate because had he allowed Devilal to take away the vehicle, he would have been the accused of allowing the misuse of that vehicle and if he has not permitted him to take the vehicle then too, he would have been considered negligent for not properly supervising his subordinate. It is because of this fact that Maj. B.K. Sethi has tried to state before the Court that he was present mostly in the varandah either when he was in the rest house or when he was in the office talking with the section heads and so, he personally saw the driver Devilal there. An officer who has come for the first time to join his duty usually is not expects to sit in verandah to talk with the Section Heads but it appears that this was over jealously stated by Mr. B K. Sethi in order to show that all the time, Devilal was there in his view so that he may be able to prove that Devilal did not leave office even during duty hours so that he may be saved of allowing the misuse of the vehicle by Devilal. I have pointedly asked learned Counsel appearing for the non-applicants-respondents as to what enmity Kanhaiyalal had with Devilal but they have failed to show any enmity between Kanhaiyalal and Devilal and, therefore, there is no reason for Kanhaiyalal to falsely implicate Devilal specially a Govt. servant belonging to his own close neighbour in a criminal case as well as a case in which claim has been made against him.

Learned counsel appearing for the non-applicants respondents have submitted that Maj. B.K. Sethi has stated that Military vehicles cannot be misused. Amarlal has categorically stated that Devilal has been misusing this vehicle. Even he brought 'Aaslates' in this Military Truck at the time of the construction of his house. The learned lower Court has disbelieved his testimony on the ground that no photographs of that fact have been produced. Amarlal is a poor man, rustic by nature and labour by profession. It is not expected of such poor and undeducted persons to keep record of such events by presenting their photographs. He was not expected to know that this very truck will be responsible for causing the accident, and so, in the absence of any photographs, no adverse inference can be drawn against the claimants.

16. The learned lower court has taken the view that upon the slip was given by Kanhaiyalal to the wife of Amarlal, why the correct number of the vehicle were not disclosed to the Investigating Officer. It is true that Kanhaiyalal has stated that he has given a slip bearing the number of the truck to the wife of Amarlal and it was expected of Amarlal to have disclosed the number of the truck on seeing that slip but he has frankly conceded that at the time of lodging the FIR, he did not bring the slip bearing the number of the truck and when he was interrogated by the S H.O., the number was given by him although slightly different from the slip which was quite natural in that state of mind and, therefore, the human probability should have been taken into consideration by the learned lower court, AW 1 Ramchander, I.O. has stated that the result of his investigation was that Devilal has committed this accident through a military truck bearing No. BA-77C-18254-A and that truck was seized by him. As the non-applicants have failed to produce the log book maintained for this truck, an adverse inference is drawn against the non-applicants. 1 have pointedly asked this question to the learned Counsel for the non-applicants-respondents and they have failed to give any explanation as to why the log book maintained for this truck was not produced either before the 1.0. or before the Tribunal or before this Court.

17. Amarlal has gone on record to say that Devilal met him in the evening on the relevant day and he admitted his guilt that he has caused this accident. Of course, Devilal has refused to accept this allegation and has stated that he did not say so to Amarlal but in the facts and circum stances of this case, I feel that this admission is very natural, because the truck was seized and he was likely to be arrested and so he might have made his efforts to approach Amarlal to settle the matter.

18. The upshot of the aboe discussion is that the learned Tribunal erred in deciding issue No. 1 in favour of the ono-applicant-respondent No. Claimants and against the claimants. It ought to have been decided in favour of the claimants and aganist the non-applicants.

19. So far as compenstion is concerned, I have already stated that no compensation has been claimed either for mental shock or for loss of love and affection. The only compensation that has been claimed is on account of loss of income. Learned Counsel appearing for the appellants ha palced relience on a decision of the Allahabad High Court in Rashid Hussain v. Union of India 1984 ACJ 635 wherein a boy aged about 5 years of Rs. 15,000/- was awarded on account of loss of expected contribution of menal shock suffered by the parents. Here, it is a case of a girl aged about three years. According to the claimants, she would have started earning at the age of 12-13 years and would have married at the age of 18 years then she would have earned for 6 years. Looking to the spurt in wages these days, it can be expected that she would have earned Rs. 8/- per day on account of labour work an even if it is held that she would have spent Rs. 2/- of herself for maintenance then she would have contributed Rs. 6/- to Rs. 129603/-. Thus, in the facts and circumstance of this case, I feel that Rs. 13,000/- should be awarded to the claimants as compenstion on account of the death of the girl. This amount will carry interest @ 12% p.a. from the date of the application. The costs of the appeal are assessed to Rs. 500/-, which shall be payable by the non-petitioner to the petitioner.

20. In the resuld, the appeal is allowed and the judgments of the learned Tribunal dated 20-5-1982 is set aside and the claim of the claimants No. 1 and 2 is decreed against the non-applicants-respondents for a sum of Rs. 13,000/-, which amount shall carry interest @ 12% per annum from 4-1-1988 till its realisation. However, the costs of the appeal are assessed to Rs. 500/- which shall be payable by the non-petitioner to the claimants appellants No. 1 and 2. I am not inclined to grant any compensation to the grand-mother, sons and daughter of deceased Pushpa. They could have been made. So far as maintenance is concerned, that can only be allowed to the parents of the deceased Pushpa.