Shashi Bala vs Siri Niwas

Amarjeet Chaudhary, J.

The Motor Accident Claims Tribunal, Patiala had dismissed claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by Shashi Bala and her two sons, namely, Lovnesh Kumar and Dinesh Kumar claiming compensation on account of death of Narinder Kumar, husband of claimant No. 1 and father of claimants No. 2 and 3 on 18.6.1991 in accident while travelling in Maruti car No. CHK 4447, which was being driven by Anwar Hassan.

Dissatisfied with the award of the Tribunal, the claimants have filed the present appeal for setting aside the same.

In brief, the case of the appellants is that on 18.6.1991, Narinder Kumar was going from Rajpura to Banur in car No. CHK 4447, which was being driven by Anwar Hassan. The car was being driven in rash and negligent manner by its driver. When the car reached in the revenue limits of Banur, it struck against a tree, which was already lying by the side of the road. The occurrence was witnessed by Sudesh Kumar and others. The respondents colluded with the police and no case was registered.

The claim petition was resisted by the driver and the owner of the car on the ground that when the car crossed village Jangpura, a tree suddenly fell upon the car as a result of which Narinder Kumar and driver of car received injuries. It was further stated that at the relevant time, heavy storm was blowing and it was raining. The Tribunal had returned a finding that the claimants have failed to prove that the accident had occurred as a result of rash and negligent driving of car by its driver. The Tribunal also held that the claimants had failed to prove that the driver of the car, Anwar Hussan was paid employee of the owner of the car. A plea was also raised before the Tribunal that the owner of the car has received compensation from the Insurance Company for the damages of the car and as such the respondents cannot be absolved of their liability to pay compensation. It was proved that the Insurance Company had paid compensation to the owner of the car in respect of damages caused to the car.

Learned counsel for the appellants contends that the claimants in order to prove their case have produced one Ashok Kumar as AW 2, who has stated that on the fateful day, he was going in car No. CHO1B8876, which was being driven by Shiv Kumar. Car No. CHK 4447 had crossed their car from near Jansala and on reaching Jangpura at about 9.30 a.m. said car No. CHK 4447 had met with an accident, which struck against a Tahli tree. This witness also deposed that they stopped their car and saw Anwar Hassan, driver of the car, lying in an injured condition, who was crying for help and Narinder Kumar was lying dead in the car. He also deposed that Anwar Hassan was removed by them and was taken to the hospital. The information was conveyed to the families of Narinder Kumar and Anwar Hassan. He also stated that the deceased was running a furniture shop in Banur and was earning Rs. 4,000/, 5,000/ per month.

Anwar Hassan, while appearing as RW 1, has stated that the car was being driven by him and Narinder Kumar was sitting in the car besides him. He also deposed that a tree had suddenly fallen upon the car. This witness has not denied that he was authorised to drive the vehicle.

In this case, there are two versions regarding the manner in which the accident took place, one is of the driver of the car, who has stated that a tree had suddenly fallen upon the car and the other is of Ashok Kumar, who has stated that the car had struck against a tree. Where there are two versions, the Court would accept the version, which is more convincing and plausible. In this case, the version of Ashok Kumar appears to be correct as he is an independent witness whereas version of Anwasr Hassan, driver of the car is incorrect as be might have given false statement in order to absolve his liability to pay compensation. Ashok Kumar, AW 1, has stated that the car had struck against the tree. This witness was crossexamined but no suggestion/question was put to him that the accident had not occurred in the manner given by him. The testimony of Ashok Kumar goes unconstroverted. As such, this court accepts his version that the car had struck against a tree.

In this case, the income of the deceased was not ascertained by the Tribunal. However, it was the case of the claimants that the deceased was running a furniture shop and was earning Rs. 3,000/ per month. However, no evidence to prove the income of the deceased was produced. Keeping in view the totality of facts and circumstances of this case, I am of the considered view that the income of the deceased from his business could not be less than Rs. 1,500/ per month. The deceased must have been spending 1/3rd of his income for maintaining himself. After deducting 1/3rd his personal expenses, the monthly dependency comes to Rs. 1,000/ i.e. the annual dependency comes to Rs. 12,000/. By applying a multiplier of `16'' total compensation to which the claimants would be entitled to Rs. 1,92,000/ (Rs. one lac and ninety two thousands only).

The involvement of car No. CHK 4447 has not been disputed. It has been proved on the record that the owner of the said car had received compensation from the Insurance Company. The unfortunate accident would have been averted had the driver of the car had taken precautions and slowed down the car as there was heavy storm blowing and it was raining heavily. Therefore, it is held that the accident occurred as a result of rash and negligent driving of car No. CHK 4447 by Anwar Hassan, respondent No. 2. Issue No. 3 is accordingly decided in favour of the claimants and against the respondents and the findings of the learned Tribunal to the contrary are reversed. If the servant is found to be negligent, the master is always vicariously liable for the acts of his servant. The vehicle in question was insured with respondent No. 3. As such, the owner, driver, and the Insurance Company are jointly and severally liable to pay compensation to the claimants.

The F.A.O. is decided in the above terms.