Ram Kumar alias Kala vs Upinder Saha and Others

V.K. Bali, J.—This order shall dispose of two connected appeals, bearing Nos. 563 and 564 of 1991 as common questions of law and fact are involved therein.

The limited question that has been raised in these appeals is with regard to liability to pay compensation i.e. either by the appellant Rohtas, who was initially arrayed as respondent No. 4 in the claim petition, or by Amulya Leasing and Finance Ltd. (hereinafter referred to as the Finance Company), who was arrayed as owner of the offending vehicle - Respondent No. 2.

Brief facts for determining the question aforesaid reveal that on December 21, 1987, Upinder Saha was going towards Delhi on the Bahadurgarh Delhi road on a cycle. Devi Saha was sitting on the carrier of his cycle. At about 9.25 P.M. when they were at a distance of half kilometer from the house of Upinder Saha, a Maruti Van No. DDA-1492 came from behind without blowing horn. It was being driven rashly and negligently and the same hit the cycle paddled by Upinder Saha. As a result of the impact, Upinder Saha and Devi Saha fell on the road and sustained injuries. Devi Saha later on succumbed to his injures. Two separate claims petitions, one on behalf of the legal heirs of Devi Saha and the other by Upinder Saha were filed. In the petition aforesaid, whereas Ram Kumar, driver of the offending vehicle was arrayed as respondent No. 1 Amulya Leasing and Finance Ltd. was impleaded as respondent No. 2. The Oriental Insurance Company was impleaded as respondent No. 3 whereas Rohtas, said to be another owner of the offending vehicle, was impleaded as respondent No. 4. The Finance Company-respondent No. 2 filed separate written statement before the M.A.C.T. Paragraph 15 of the written statement filed by the said respondent reads thus:-

"Para 15 is admitted that the vehicle Maruti Car No. DDA 1492 is owned by the respondent. The said vehicle in fact was given on lease basis to Sh. Rohtas son of the Sh. Umer Singh resident of village Parnala, Distt. Rohtak (second address: 6/117, Nail Basti, Gali No. 2, Bahadurgarh). In terms of the agreement executed by Sh. Rohtas in favour of the replying respondent, Shri Rohtas was in possession of the vehicle at the time of alleged accident and the agreement of lease was then operated and was subsisting."

It may be mentioned here that in the claim petition in Column No. 15, where name and address of the owner of vehicle is to be given it is mentioned that the same is as given in the title. In title, as mentioned above, respondents 2 and 4 have been described as owners of the offending vehicle.

Respondent No. 4 also filed separate written statement and denied the averments made in para 15 of the claim petition for want of knowledge. In so far as respondent No. 2 is concerned, no evidence was led and the records show, as is also the contention of learned counsel for the appellants, that after filing written statement, the finance Company took no interest in the proceedings. While determining the issue with regard to respondents'' liability to pay compensation, the MACT held that it was respondents 1 and 4 i.e. driver and Rohtas, who were liable to make payment of compensation. The present appeals, are, thus, by these respondents i.e. respondents 1 and 4.

The only question that has been debated is with regard to liability i.e. as to whether it is respondents 1 and 4 who are liable to pay the compensation or respondent No. 2 i.e. the Finance Company.

Mr. Bhoop Singh, learned counsel for the appellants vehemently contends that it is proved on records of the case by overwhelming oral as well as documentary evidence inclusive of admission made by respondent No. 2 that the owner of the offending vehicle was respondent No. 2 and not respondent No. 4 and, therefore, even though respondent No. 1 i.e. driver of the offending vehicle may be jointly and severally liable to pay compensation, respondent No. 4 in any case is not liable and joint and several liability has to be of respondents 1 and 2.

I have heard learned counsel for the parties and gone through the records the records of the case. This court is of the considered view that there is considerable merit in the contention of the learned counsel for the appellant - Rohtas. It appears from the records of the case that the learned Tribunal decided the controversy on the relevant issue by relying on a particular part of the statement of respondent No 4, who appeared as RW2 before the Tribunal. This Court is of the view that the Tribunal was not justified in picking up some stray sentences from the cross-examination of respondent No. 4 and with a view of arrive at a proper and just conclusion, his entire statement along with other records had to be taken into consideration. It is positive case of respondent No. 2 itself, so pleaded by way of written statement that the lease agreement between it and respondent No. 4 was operating and subsisting on the date of accident. In his examination-in-chief, respondent No.4 who, as mentioned above, appeared as RW2, clearly stated in the very opening line of his statement that he had taken Maruti Van No. DDA 1492 from respondent No. 2 on lease. It is true that in his cross-examination, he stated that he paid an amount of Rs. 24,000/- to respondent No. 2 and the balance was payable by way of instalments and that after the accident, he had sold the aforesaid vehicle to Bhola son of Sh. Pema Saini for Rs. 62,000/- but in the context of the facts of this case and other evidence that has been brought on records of the case, the aforesaid statement of RW2 in the cross-examination, appears to be an outcome of some confusion. If it was his case that he had purchased the vehicle from respondent No. 2, he could not at the same time be saying that he had taken it on lease from respondent No. 2. It appears that the statement made by him that he had paid an amount of Rs. 24,000/- to respondent No. 2, was not on account of the part performance of the sale of the offending vehicle but the same was towards the lease that he was supposed to pay under the agreement. Insofar as sale of vehicle after the accident is concerned, the same is wholly meaningless as that alone, after the accident, does not absolve respondent No.2 from its liability to pay compensation. The Tribunal itself recorded a finding, on the basis of documentary evidence that in the copy of registration certificate, the Maruti Van No. DDA-1492 Amulya Leasing and Finance Ltd. is the registered owner. Ex. R.7, a copy of Insurance Policy was also produced on records, according to which Maruti Van No. DDA-1492 was insured in the name of Amulya Leasing and Finance Ltd. Tribunal also recorded in its award that claim petition was not contested by respondent No. 2 after filing writing statement.

In the present case, therefore, even though appellant Rohtas, who appeared as RW2, had stated that he had purchased the vehicle from respondent No. 2, it appears that he was referring only to lease agreement. Respondent No. 4 is an illiterate person. On various documents of lease as also on the written statement filed by him before the Tribunal, he had only appended his thumb impression. It can well be though over by an illiterate person as respondent No. 4 was that even though technically the ownership was to pass to him only when he was to pay the entire money, yet he had owned the vehicle having, in a way, purchased from respondent No. 2. It may be mentioned that Rohtas stated that he had purchased the vehicle four months before the accident and the lease agreement was executed just four months before the accident occurred. The finding recorded by the Tribunal with regard to ownership of the offending vehicle, thus, deserves to be reversed. Obvious result would be that compensation shall have to be paid by respondent No. 1 driver of the offending vehicle and the owner i.e. respondent No. 2, whose liability, of course, shall be joint and several.

In view of what has been said above, appeal No. 563 of 1991 is partly allowed. Whereas appeal preferred by Ram Kumar is dismissed, appeal preferred on behalf of Rohtas, who, as mentioned above, was arrayed as respondent Ne.4 in the claim petition is allowed. The amount of compensation shall, thus be payable by Ram Kumar driver and Amulya Leasing and Finance Ltd. jointly and severally.

In FAO No. 564 of 1991 the appellant, who are dependents of Devi Sana have prayed for enhancement of the compensation from the one already granted by the Tribunal. Claimants are widow, a minor child and mother of the deceased. It is proved from the records of the case that Devi Saha was only 22 years old at the time of his death. Even though it was the case of claimants that Devi Saha was earning Rs. 1,200/- per month, a finding has been returned by the Tribunal that he was earning Rs.1,000/- per month. In view of this Court when he had a wife, a minor child and mother to support, he could not spend more than Rs.200/- per month on himself. Therefore, the dependeny of the claimants has to be worked out @ Rs. 800/- per month. The deceased, as mentioned above was 22 years of age at the time of death. A multiplier of at least 18 ought to have been applied in this case. Working on that basis, the total compensation payable to the claimants comes out to be Rs. 1,72,800/-(800 x 12 x 18 = 1,72,800). To round the same, it is assessed at Rs. 1,73,000/-. The Tribunal held claimants entitlement at Rs. 1,28,640/- The appeal preferred by the dependents of Devi Saha is, thus, allowed and it is held that they shall be entitled to compensation of Rs. 1,73,000/- with interest @ 12% from the date of filing of the petition.

Insofar as cross-objections preferred by Upinder Saha are concerned, nothing much has been urged on his behalf by learned counsel appearing for him. It is true that his one leg has been shortened by half an inch but since he was doing only job work i.e. making hand bags, it could not be established that the loss suffered by him was more than the one that has been allowed to him as compensation. Cress-objections preferred by him are, thus, rejected.

Parties are left to bear their own costs.