Wednesday, February 16, 2011

Gajraj Singh & Ors. V. Narayani

II (1985) ACC 331 (DB)
F.A.F.O. No.182 of 1978-Decided on 31-1-1985.


Present: K.C. Agarwal and G.B. Singh, JJ..

GAJRAJ SINGH AND OTHERS                             Appellants


NARAYANI AND OTHFRS                                   Respondents

Important Point

In a case of accident the driver alone can give correct and complete account of the accident.  Non-production of driver, in the absence of any reasonable explanation, is a strong circumstance against the owner that the accident was caused due to rash and negligent driving


K.C. Agarwal J.-This is an appeal against the award dated 19-12-1977 of Claims Tribunal, Bareilly awarding a sum of Rs. 58,000/- as compensation to Smt. Narayani and her two minor sons Satyandra and Navin Kumar respondents No.1 to 3.

2.      The case of the petitioners was that Amarnath Singh was Hawaldar Instructor in the Education Courts of the Indian Army at Bareilly.  He and Lans Naik Kedar Dutt were coming on their bicycles on 28-7-197) at about 7.00 A.M. on Breilly Shahjahanpur road to their Army quarters after their morning parade.  When they reached near the crossing in front of Jat Centre, a Truck No. D.H.G. 865 came at a high speed from the side of Shahjahanpur and while Arnar Nath Singh in order to go to Army Quarter was crossing the road it struck against him without blowing any horn and  crushed him to death on the spot Bicycle of Amarnath Singh was also crushed by the truck. The truck did not stop and it went away towards Bareilly city. The petitioners, there for claimed compensation amounting to Rs. 1,25,000/- on the allegation that Amarnath Singh was getting salary of Rs. 724/- per month and was about 36 years old at the time of the accident and the accident took place on account of rash and negligent driving of the truck by Gajraj Singh driver, opposite party No.1 appellant No.1  The truck was owned by Narain Das, opposite party No.2 appellant No. 2 and Gopal Das, opposite party No.4, appellant No.2 carrying on business in the name or M/s Narain Das Gopal Das, opposite party No.2 appellant No.4 and the truck was insured with Mis Oriental General and Fire Insurance Company,  opposite Party No.5 respondent No.2.

3.        The claim was contested by Narain Das, opposite party No. 3 denying that there was any rashness and negligence on the part of the driver. He pleaded that the accident took place on account of negligence of the deceased.  It was also pleaded by him that Insurance Company is liable to pay the compensation, if the claim 6f the applicants is established. The Insurance Company filed separate written statement admitting that the truck was insured with it and pleading that it is liable to the extent provided in Section 95 of the Motor Vehicles Acts.

4.        On behalf of the claimants Lans Naik Kedar Dutt (P.W. 1), Govind Chand Rohra (P.W. 3) were examined as eye witnesses of the accident. Pramod Kumar (P.W 2) who is brother of Amarnath Singh, deceased was examined to prove the compensation. On behalf of the opposite party Narain Das, opposite party No. 3 examined himself as  D.W. 1 and produced Ram  Singh  cleaner of the truck as  D.W. 2. The tribunal held that the accident was caused due to the negligence of the truck driver and there was no negligence on the part of the deceased. It further held that the applicants were entitled to get Rs. 58,000/- by way of compensation, out of which Insurance Company was liable to  pay Rs. 51,000/-. Out of the compensation awarded Smt. Narnyani widow was given Rs. 20,000/- and each Minor son had been given Rs. 19,000/-. Feeling dis-satisfied with this decision Gajraj Singh, Narain Das, Gopal Das and Firm MIs Narain Das Gopal Das preferred the present appeal.

5.      It was, firstly, argued by the learned counsel for the appellants that the claircants failed to prove the negligence of the driver and as such no compensation could be awarded to them. We  do  not find any force in this argument  It is a common ground that Gajraj Singh, appellant No.1 was driving the truck at the time of the accident.  He was not produced as a witness on behalf o~ the opposite parties who preferred the present appeal. There is no plausible explanation for not producing him as a witness.  In a case of accident the driver alone can give correct and complete account of the accident. Normally the witnesses are attracted only after the collision. The at the driver is the person who knows what he did not know what actually happened time of the accident. Thus with holding of Gajraj Singh from the witness boxe is a strong circumstance against the contention of the learned counsel form the appellants.

6.      It is undisputed that the accident took place on 28-7-1975 at about 7.00 A.M. near the crossing which is a few paces away from the Army quarters, on Bareilly Shahiabanpur road while Amarnath Singh was crossing the road in order to reach Army quarters and he was crushed to death by the truck driven by Gajraj Singh appellant  No. 1. The evidence led by the claimants shows that the truck did not stop after the accident and proceeded towards Bareilly city. It further shows that the impact was with much force and even rear wheels of the truck passed over the bicycle and the body of Amarnath Singh. There was sufficient day light and very little traffic on the road immediately before the accident.

7.        Lans Naik Kedar Dutt (P.W. 1) who was going along with Education Hawaldar Amarnath Singh, deceased towards the Army quarters has stated that the truck was coming at a great speed and did not blow any horn and there was an unmanned crossing there.  It has also been added by him that there was no rush on the road at the relevant time.  If the truck had not been driven at a high speed, Hawaldar Amarnath Singh while crossing the road could be seen easily from sufficient distance and after application of the brakes the truck could be stopped and thus the accident could be avoided. The statement of Lans Naik Kedar Dutt (P.W. 1) therefore gets support from the circumstances of the case.  His statement has been further supported by the deposition of Govind Chand Bohra (P.W. 3). He has stated that after the morning parade he was going to the Army quarters and Amarnatli Singh and Kedar Dutt were a few paces ahead of him.  It has been added by him that the accident took place due to rash and negligent, driving of the truck. Both them appear to have stated truth on the subject and learned counsel for the appellants could not point out any circumstances making their testimony unworthy of belief. Their statements are consistent and it appears  difficult to hold them unreliable

8.        Narain Das (D.W. 1) was not present at the time of the accident. Ram Singh, Cleaner (D.W. 2) stated that the truck was being driven at the speed of 10 or 12 Km. per hour and when the brakes were applied Amarnath Singh was at a distance of  about 6 or 7 paces from the truck.  If  it was so,  the truck could have stopped in time and its rear wheels would  not have crossed the cycle and the body of the deceased.  The statement  of  Ram Singh  (D.W.  2) was,  therefore, rightly discarded as unworthy of  reliance by the Claims Tribunal, It is, therefore, clear that the oral evidence given in the case clearly supports the finding of the Tribunal that the truck was being driven at a high speed and the accident took place due to the negligence of the driver.

9.      The opposite parties do not plead that the accident took place due to any mechanical defect in the vehicle.  There was no evidence on behalf of the appellant opp3site parties that Hawaldar Amarnath Singh by his own act or conduct made it difficult to avoid the accident. A person driving a motor vehicle at a high way must drive with reasonable care so as not to imperil ?he safety of others whether they are pedestrians or cyclists.  The person driving a motor vehicle must keep a good look out in all directions of the road, on the sides and on the stretch of the road in front of him. He must whenever expedient give warning of his approach by blowing horn and must exercise skill in trying to avoid accident. In the present case on satisfactory evidence has been given on behalf of the appellants to show that the horn was blown and the driver took all reasonable precautions and made all possible efforts to avoid the accident. The evidence on the other hand shows that Gajraj Singh driver was driving the truck at a high speed and did not make any serious effort to stop the truck while hawaldar Amarnath Singh was crossing the road in order to reach his Army quarter.  All these facts clearly support the finding of the learned Claims Tribunal that the driver was driving the vehicle negligently and rashly.

10.    The next point argued by the learned counsel for the appellants is that Amarnath Singh deceased himself was negligent in crossing the road suddenly while the truck was coming. Lans Naik Kedar Dutt (P.W. 1) had crossed the road and Arnarnath Singh just behind him was crossing the road. While the deceased was crossing the road the truck struck against him and crushed him to death.  Had there been any blowing of born and the truck had been at a short distance Amarnath Singh and Kedar Dutt would not have crossed the road. Since there was a crossing near the place of incident they could expect that the motor vehicle if any coming on the road would run at a slow speed but the evidence shows otherwise. Thus negligence to Amarnath Singh in crossing the road cannot be attributed and the finding of the Tribunal on the this also cannot be assailed.

11.      The last point argued by the learned counsel for the appellants is that the compensation has been awarded arbitrarily and is excessive. We do not agree with this submission also. The  petitioners claimed a sum of Rs. 1,25,000/- as compensation. The Claims Tribunal awarded a sum of Rs. 53,000/- as damages to the petitioners. While awarding damages the Tribunal took into consideration monthly income of Amarnath Singh deceased the number of dependents, the period of their dependency, the period of which the deceased was expected to survive and earn, the amount which he was likely to spend on himself and amount which he was spending on his dependents, the sum to be discounted for lump sum payment of the compensation and the interest theory. It was proved by the evidence of the petitioners that the age of Amarnath Singh deceased at the time or the incident was 36 years.  The petitioners alleged in the claim petition that Amarnath Singh was getting Rs. 724/- per month as salary and other allowances. Lans Naik Kedar Dutt (P.W. 1) and Pramod Kumar Singh (P.W. 2) brother of Amarnath Singh have made statement to the effect that the deceased was getting monthly salary of Rs. 700/- approximately per month.  In view of all this and the details given by G C. Bohra (P.W. 3) the Claims Tribunal came to the conclusion that his monthly income was about Rs. 660/-. He further held that out of this total sum he must have been spending half on his family consisting of his wife and two minor sons and thus the pecuniary loss to the dependents was about Rs. 330A per month or Rs 3,960/- per annum.  With regard to his span of life and earning capacity the Tribunal held that he would have continued to survive and support the family up to the age of 58 years on the basis of the aforesaid monthly income. Thus the total amount  which  dependents would have received amounted to Rs. 87,120/-. Since this amount was awarded in a lump sum, one third of it was discounted and thus after the deduction of Rs. 29,040/-the residue came to Rs. 58,080/- approximately Rs. 58,000/-.  All these finding of the learned Tribunal appears to be based on evidence led in the case and settled principles of assessment of compensation in such cases. Learned counsel for the appellant could not show at the time of arguments as to how the findings are against evidence and law.

12. Smt Narayani being an uneducated wife would have to remain dependant on the earning of her husband throughout her life  Satyendra who was about 14 years at the relevant time was also to remain dependant on his father on account of his illness. The second son was about 2 years old at the time of the accident.  He was also to remain dependant  on the income of his father tLll he would be able to stand on his own feet and have a separate source of earning. This period could go beyond the attainment of his majority. Thus the period of dependency could be 22 years as observed by the learned Claims Tribunal Amarnath Singh was the sole bread winner of the family. If the lump sum awarded Is put in the fixed deposit the amount likely to be earned by way of interest comes to near about the amount which the petitioners were likely to get from the deceased. This amount was thus calculated after taking into account, relevant factors and circumstances and appears just and reasonable.  It cannot be, therefore, said that this amount was fixed arbitrarily and is excessive.

13.         The High Court does not interfere with the quantification of damages awarded by the Claims Tribunal unless it feels that they are too high or too low, i.e. they are not in proportion to the loss or injury caused or unless there is some error in principle or in approach adopted by the Claims Tribunal. There should be serious lacuna in the mode of calculation of compensation. In the present case learned counsel for the appellants could not show that the compensation awarded is not proportionate to the loss caused to the petitioners and some wrong principle of procedure has been adopted in calculating the compensation. The loss has been ascertained in the present case by balancing on the one hand the loss to the claimants of the future pecuniary benefits and on the other pecuniary advantages likely to be given to them by reason of the death.  The discretion in awarding the damages compensation appears to be based on a reasonable principle and no cogent and valid ground could be suggested by the learned counsel for the appellants for interference. It is not less significant to note that out of Rs. 58,000!- awarded as compensation the liability of the Insurance company has been fixed at Rs. 50,000/- and thus the remaining sum of Rs 8,000/- is likely to be paid by the appellants. The Insurance Company has not preferred any appeal against the award. It does not therefore, appear to be a fit case in which any interference in appeal should be made with the amount of damages. Thus the last contention of the learned counsel for the appellants also fails to the ground.

14.         The appeal has, therefore, no force. It is, accordingly dismissed. In the special circumstances of the case we make no order as to Costs.

Appeal dismissed

Gajraj Singh & Ors. V. Narayani _driver not Examined

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