Miss Ballu Gaur and others vs R.P. Randhawa and others

Gokal Chand Mital, J.—On 11th September, 1970, at about 4 PM, an accident took place between two Cars on G. T. road, near Pipli Khera, within the jurisdiction of Police Station, Ganaur, Sonepat. Car No. D.L.J. 6734 was coming from Delhi towards, Ambala Cantt and was being driven by Brig. R. P. Randhawa, who died in accident. Car No. HRA 2883 was coming from Ambala and was going to Delhi. It was being driven by Mool Chand, driver of M/S Gaur Scientific Metal Works Nicholson Road, Ambala Cantt., which firm owned the car. Naresh Kumar Gaur, who was managing partner of the aforesaid firm and an occupant of the car also died in accident. Two more occupant of Brigadier''s car were injured. The heirs of both the deceased and the injured filed separate claim applications before the Motor Accident Claims Tribunal. While the legal representative of Naresh Kumar Gaur blamed the driver of the other car, the legal representative of Brig. Randhawa blamed Mool Chand driver. All the claim applications were consolidated and tried and decided together. On the contest of the parties, the following issues were framed :

Did the collusion between the two cars (DLJ 6734 and HRA 2883) take place on account of negligence and rashness on the part of the driver of car No. DLJ 6734 and alternatively by the reason of negligence and rashness on the part of the driver of car No HRA 2883 ?

Did the accident take place on account of contributory negligence of both the drivers and if so to what effect ?

To how much compensation are the claimants entitled ?

Has the application presented by Kumari Babloo and others not been properly presented as alleged ?

Are there sufficient grounds for condoning the delay taken in bringing their claims ?

Is there any mis-joinder of parties and if so to what effect ?

Is there any non-joinder of parties and if so to what effect ?

Were the drivers of the two cars without driving licence and if not to what effect ?

After evidence was led, by award dated 16th December, 1980, Rs. 59,600/- were awarded to legal representatives of Brig. Randhawa, out of which Rs. 50,000/- were to be paid to his widow and four sons and the remaining to his parents. The Tribunal also awarded Rs. 26,000/- to the minor daughter of Naresh Kumar Gaur, who was about 13 days old and Rs. 10,000/- to his parents. One of the injured was granted Rs. 5000/-and the claim petition of other injured was declined. The legal representatives of Naresh Kumar Gaur have come up in appeal to this Court to claim further enhancement. An application for amendment has been made by them to take a specific ground to challenge the finding of the Tribunal to the effect that Mool Chand driver was negligent. The application was ordered to be heard with the main case.

After hearing the learned counsel for the parties and on perusal of the record I am of the view that this is a case where the drivers of both the cars were negligent and if any one of them had been careful the accident could have been avoided. The evidence brought on the record when seen with photographs go to show that the car driven by Brig. Randhawa hit the other car towards the left front door and the left front Mudguard as a result of which both the doors on the left side and the left front Mudguard got seriously damaged and the roof of the car also bent down. The Brig. Randhawa''s car was badly smashed from the front side.

Shri Hemant Gupta, Advocate, appearing for the Insurance Company with which the Brig. Randhawa''s car was insured, has argued that in criminal proceedings Mool Chand driver confessed his negligence, and, therefore, it cannot be said that Brig, was also negligent in driving the car. It is true that in the criminal proceedings Mool Chand driver confessed and by making a confession he was leniently dealt with by the Criminal Court as he was sentenced till the rising of the Court and with a fine of Rs. 500/-. As held by the highest Court the judgment of Criminal Court is not relevant for decision of civil disputes. We have to decide this case independently on the basis of evidence led here. Faced with the situation, the learned counsel urges that the confession made by Mool Chand driver in the criminal proceedings has been brought on the record of this case as a piece of evidence and that would be relevant evidence for deciding the dispute. To this extent the learned counsel is right. So from the confession it is clear that Mool Chand driver was negligent but from the remaining evidence and circumstances of the case and particularly the damage caused to the two cars and the place where the damage is caused further goes to show that the Brigadier was also negligent. If any one of the two had been careful the accident could have been avoided. Accordingly, I disagree with the Court below that only Mool Chand driver was negligent and hold that both the drivers were negligent.

In fairness, one more argument may be noticed, which has been raised by Shri Gupta. He argues that the claimants have not produced Mool Chand, who is driver, and, therefore, adverse inference should be drawn against them. In law, adverse inference is drawn against a party who is in possession of certain documentary evidence and when called upon to produce it, does not produce. Then, adverse inference can be drawn. Mool Chand driver could be produced by the claimants and equally the Insurance Company, to disprove the case of the claimants that Brigadier was not guilty of negligence. Hence no adverse inference can be drawn. Accordingly I hold that both the drivers are guilty of contributory negligence. Ultimately, compensation payable would be determined on that basis.

Adverting to the quantum of compensation, the deceased was managing partner of M/s Gaur Scientific Metal Works. Exhibit. B5 is the order of the Assistant Appellate Commissioner of Income Tax, who has assessed the income of the partnership concern at Rs. 62050/- per annum. There w ere four partners of the firm and the deceased was one of them. Hence his annual income would be about Rs. 15,500/- and monthly income would come to about little less than Rs. 1300/-. The deceased was M. Sc. (hons) and was 25 years old having a baby girl of 13 days old at the time of accident. His wife has re-married, therefore, she is not one of the claimants. The other claimants are his aged parents. Out of his income the deceased would have spend at least Rs. 200/- per month on his parents and on an average Rs. 300/- per month on his daughter till she would have got married. By now 14 1/2 years have gone by since the accident and the parents of the deceased are still alive. Under the circumstances a multiplier of 16 years deserves to be applied for awarding compensation to the parents. As regards the minor child she would be married near about the age of 20 or 21 years and since she was 13 days old at the time of accident it would be a fit case for applying a multiplier of 20 years. While doing so the parents would have been entitled to compensation of Rs. 38,400/- and the minor to Rs. 72,000/-. However, in view of the finding that two drivers were equally negligent and contributed to the accident, therefore, the liability of Brig. Randhawa would be for half of the amount, which will have to be paid by the Insurance Company with which his car was insured.

Adverting to the application for permission to amend the grounds of the appeal, the same deserves to be allowed in the interest of justice because the claimants want to take a specific ground regarding negligence of the Brig, in their grounds of appeal. Accordingly, the application is allowed.

For the reasons recorded above, this appeal is allowed, the award of the Tribunal is modified and it is ordered that Miss. Bablu Gaur would be entitled to Rs 36,000/- as compensation and the other two claimants would be entitled to Rs. 19,200/-, which shall be devided amongst them in equal shares. On the aforesaid amount, they would be entitled to 12 per cent interest per annum from the date of filing of the claim application till payment thereof.

It has been stated at the bar by the counsel for the claimants that the amount which was awarded by the Tribunal below has already been paid to the claimants. The enhanced amount payable to the parents of the deceased may be paid to them but the enhanced amount along with interest payable to the minor claimant on the basis of this order, be deposited in the post office in National Saving Certificates (VI series) and Tribunal shall invest the amount in the name of the minor in National Savings Certificates (VI series) and shall keep the National Saving Certificates in its custody, which shall be encashed only with the permission of the Tribunal after the minor gets married.