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Judgment
S.P. Goyal, J.—This judgment will dispose of six appeals--F.A.O. Nos. 47, 48, 49,85,90 and 96 of 1975--as they arise out of the same judgment of the Accidents Claims Tribunal, Karnal, dated October 7, 1974.
A head-on collision took place between car No. MRW 8029 and car No. DLF 5558 on the Grand Trunk road on December 28, 1964 at about 7.30 a.m. which resulted in the death of Hari Singh driver, Ram Kumar, T. Gupta and Smt. Amolak Devi and bodily injuries to Chaman Lal, occupants of the first car. Three claim petitions were filed, one by the widow and the minor children of Ram Kumar deceased, second by Kesho Ram husband of Smt. Amolak Devi and the third by Chaman Lal. In the petition filed by the widow and the heirs of Ram Kumar it was alleged that the accident took place because of the rash and negligent driving of car No. DLF 5558 by driver Kishore Kumar. A compensation of Rs. 17,50,000/-was, therefore, claimed against the owner and the National Insurance Company with whom the car was insured. In the other two petitions, it was alleged that the accident took place because of the negligence of the drivers of both the cars and as such both the owners and the insurance company were named as Respondents. The claims were, however, contested only by the owner and insurer of car No. DLF 5558 who controverted the allegations made by the claimants and pleaded that the mishap was the result of rash and negligent driving of car No. MRW 8029. On the pleadings of of the parties the following issues were framed:
(1) Whether the accident was caused due to the negligence of the driver of vehicle No. DLF 5558 ?
(1-A) If issue No. 1 is proved whether the driver of car No. MRW 8029 was also negligent, if so, whether both the drivers of the two vehicles involved were negligent and with what effect?
(2) What is the compensation due if any, to the claimants and from whom to whom ?
(3) Whether in claim No. 56/65 any cause of action is disclosed against Respondents Nos. 3 and 4 if not so, its effect ?
After recording evidence of the parties, the Tribunal answered issue No. 1 in the affirmative and issues Nos. 1-A and 3 in the negative. Under issue No. 3, heirs of Ram Kumar were awarded Rs. 8,00,000/- Kesho Ram Rs. 7,000/- and Chaman Lal Rs. 13,000/- as compensation and the owner and insurer of car No. DLF 5558 were held jointly and severally liable for the same. Both the parties have felt dissatisfied with the award resulting in the above noted six appeals, three by the claimants for the enhancement of the compensation awarded and three by the judgment debtors for setting aside the same.
On issues No. 1 and 1-A, the claimants examined Dr. Hans Raj A.W. 3, Dharam Singh A.W. 6 and Chaman Lal A.W. 9. Dr. Hans Raj and Dharam Singh reached the spot soon after the accident. So none of them had actually witnessed as to how the accident took place. However, Dr. Hans Raj deposed that car No. DLF 5558 was running at a high speed when it by-passed him. Chaman Lal A.W. 9 was one of the occupants of car No. MRW 8029. He deposed that the car in which he was travelling from Delhi to Ambala was being driven on the left side of the road and it was the other car which was coming from the side of Ambala and running in the wrong lane which struck against their car. Kishore Kumar R.W. 3 and Hans Raj R.W. 4 examined by the other side put the blame on the driver of car No. MRW 8029 and deposed that it was being driven rashly and negligently which caused the accident. As both the parties had made self-serving statements the Tribunal did not place reliance on them and recorded the finding on the basis of circumstantial evidence as gathered from exhibits X-l to X-4 taken at the spot soon after the accident. From exhibit X-4 it is quite apparent that car No. DLF 5558 was in the wrong lane and its left front portion struck against the left front portion of the other car. No doubt, car No. MRW 8029 appears to be in the middle of the road when the collision took place but that may be, as deposed to by Chaman Lal driver, because its driver tried to avoid collision by taking a turn to the right. Moreover, the impact of the collision also must have pushed back and tilted car No. MRW 8029 with the result that its rear portion went in the right lane. However, the fact that car No. DLF 5558 was wholly in the wrong lane and being driven on the wrong side of the road had caused accident because it being a heavy vehicle was not likely to be pushed into the wrong lane by the impact of the collision nor was it so deposed to by the occupant of that car or the other witnesses produced by the judgment debtors. We, therefore, find no scope to interfere with the findings of the Tribunal on these issues and the same are accordingly confirmed.
The next issue relates to the quantum of compensation and this was, in fact, the issue which was seriously contested between the parties. Admittedly, deceased Ram Kumar was deriving income at the time of his death from two sources, namely, the salary as Director of the three companies and the profit income from Messrs Bombay Forge, a Hindu undivided family concern. His salary income was fixed at Rs. 2,500/- per month by the Tribunal which is obviously wrong. According to the learned Counsel for the judgment debtors, his monthly income from salary was Rs. 2,300/- per month, Rs. 1,500/- as Director of K.T. Steel and K.T. Rolling Mills respectively and Rs. 300/- from Messrs Khushi Ram Tara Chand as Manager. On the other hand, according to the learned Counsel for the claimants, his monthly income was Rs. 3,300/- because his salary as Director of K.T. Steels is stated to be Rs. 2,500/- per month instead of Rs. 1,500/- per month. The only documentary proof in support of his salary as Director of K.T. Steels produced at the trial was the assessment order, exhibit C-5. Apart from that CCW 8 Tarlochan Singh, Secretary-cum-Assistant Manager of K.T. Steels Industries, deposed on the basis of the record which he had brought with him that the salary of the deceased had been raised from Rs. 1,500/- to Rs. 2,500/-during the financial year 1964-65. He further deposed that a resolution passed by the Board of Directors was duly recorded in the minute book of the company to this effect. Although the records of the company were examined by the counsel for the insurer for two days but nothing was brought on the record to show that this part of the statement of the witness was incorrect. In spite of all that we asked the learned Counsel for the claimants to produce the original minute book to satisfy about the genuineness the of that resolution. The register was duly produced and on inspection we find no reason to doubt the genuineness and authenticity of the resolution. There being no dispute regarding the other two items, the income of the deceased from the salary has been proved to be Rs. 3,300/- per month and the finding of the Tribunal in this regard is accordingly modified.
As regards the income from Messrs Bombay Forge, the evidence again consists of income tax return, assessment order and the statement of CCW 8. Accounts of this firm were also thoroughly checked and inspected by the learned Counsel for the insurer. This firm was securing work orders and supplying goods after getting them manufactured from various manufacturers. At one time during the course of the arguments, we doubted the genuineness of this concern and were of the view that this firm had been set up only to divert profits of Messrs K.T. Steels so as to escape income tax liability. So we directed the learned Counsel for the claimants to produce some record which could show the works secured and executed by this concern. The claimants did not produce any such record. However, now we are of the view that this aspect has no bearing so far as the present dispute is concerned because even if this firm earned profits by way of some camouflage, the same were available to the dependants of the deceased for their use as income from Messrs Bombay Forge and they have been deprived of this income. The learned Counsel for the judgment-debtors, however, urged that whole of this amount cannot be said to be a loss to the family and only the share of the deceased out of this income can at best be said to be its loss. On the other hand, the learned Counsel for the Respondents argued that the concern was though of Hindu undivided family yet it was entirely run by the deceased and after his death had to be closed. In such a situation the entire amount would be a loss to the family and for this proposition he relied on Amthiben Maganlal and Ors. v. Superintending Geophysicist, O.N G.C. and Ors. 1976 A.C.J. 72 (Guj.) and Cookson v. Knowles 1978 A.C.J. 201 (C.A., England). No decision to the contrary. was cited by the learned Counsel for the judgment-debtors. The Hindu undivided family which owned this concern consisted of the deceased, his wife and the minor children of very tender age. It is, therefore, apparent that it was the deceased who was solely responsible for the running of this concern and on his death it had to be closed