SAKHARIBAI HASANALI MAKANI Vs. GIRISH KUMAR RUPCHAND GADIA

JUDGEMENT

(1.) THE claimants have preferred this appeal to challenge award dated 29.6.1987, passed by the Motor Accident Claims Tribunal, Pune, in the Claims Application No. 398 of 1983. By the impugned award, the application for compensation was dismissed with costs. We must express at the outset that we are aghast with what the Tribunal has done. It surpassed our imagination as to how the Tribunal could have dismissed the claim application. The facts which gave rise to filing of the application for compensation of Rs. 3,00,000/- by the appellants are as follow:

(2.) THE appellants who are legal representatives of the deceased taxi driver, filed application before the Tribunal claiming compensation amount of Rs. 3,00,000/-. The application sets out that the monthly income of the deceased taxi driver was Rs. 3,500/- to Rs. 3,600/-. The application sets out that the truck was driven rashly and negligently and extremely fast and dashed against the taxi resulting into the death of the driver. Respondent No. 1 filed his written statement and merely denied that the truck was driven at an excessive speed. The fact of accident was not denied. The written statement of respondent No. 1 claimed that the front tyre of the truck burst and then, firstly, the driver lost control and dashed against taxi. Respondent No. 2, driver did not appear before the Tribunal nor filed the written statement. Respondent No. 3, Insurance Company, filed written statement denying that the driver of the truck was negligent and claiming that the truck was not insured with the respondent No. 3 at the relevant time. With these rival pleadings, the Tribunal raised issues and proceeded to record evidence. On behalf of the appellants Sultan Makani, the son of the taxi driver, was examined. The witness deposed that his father was earning about Rs. 3,500/- to Rs. 3,600/- per month and on an average he was contributing Rs. 2,000/- per month for the household expenses. The witness was not cross-examined and the claim was not disputed. The appellants also examined one Ashok Mahajan who was travelling in the taxi and who deposed that the taxi was driven on the left side of the road and the witness noticed the truck coming from opposite direction at a fast speed when the driver observed that the truck was coming directly towards the taxi. The witness claimed that the truck was at a distance of 40 ft. away when the attention of the witness was drawn for the first time towards the truck. A suggestion was made to the witness in cross-examination that he was sleeping at the time of collision. The witness denied the suggestion. The third witness examined was Suleman Shaikh who was the panch in respect of the panchnama drawn after the accident. The witness was also shown photographs which were produced at the criminal trial and the witness confirmed that the situation shown in the photographs is accurate. The photographs indicate the severity of the dash given by the truck which was fully loaded. The photographs clearly established that the truck was driven at an excessive speed and the fact that the truck went into the field and proceeded for a distance of 250 ft. after collision clearly confirms the grievance of the appellants that the truck was driven at a fast speed. The doctribe of res ipsa loquitur squarely comes into play on the facts and circumstances of the case. We have no hesitation in concluding that the appellants established beyond any reasonable doubt that the truck was driven rashly and negligently and dashed against the taxi resulting into the death of taxi driver.

(3.) MR . S.G. Surana, learned Counsel appearing on behalf of the appellants, submitted that the testimony of Sultan Makani, son of the taxi driver, establishes that deceased was contributing Rs. 2,000 p.m. for household expenses. The learned Counsel submitted that the deceased would have driven taxi till age of 80 and the compensation of Rs. 3,00,000/- should be awarded on that basis. It is not possible to accede to the submission. It is undoubtedly true that the claim of Sultan Makani that the deceased was contributing Rs.2,000/-per month for household expenses was not challenged in the cross-examination. The cross-examiner did not even think it necessary to question the claim of Sultan that the deceased was earning Rs. 3,500 to Rs. 3,600/- per month. Mrs. Agarwal submitted that initially the appellants had claimed that the deceased was earning Rs. 1,500/- to 1,600/- per month and it was only by subsequent amendment that the claim was made that the deceased was earning Rs. 3,500 A or more. We do not find any merit in the contention that the amendment should not have been granted. The contents of the application are not the evidence and substantive evidence is only deposition of the witness entering into the witness-box. The respondents did not challenge the claim in cross-examination and, therefore, it is futile to say that the deceased could not have contributed Rs. 2,000/- per month for household expenses. We accept the claim of Sultan Makani and hold that the' annual dependency was to the extent of Rs. 24,000/-. This raises the question as to what multiplier should be applied. The deceased was 53 years old at the time of accident and could have driven taxi not for a long time. Taking into consideration all the facts and circumstances, in our judgment, the proper multiplier should be 7 and that the compensation payable would come to Rs. 1,68,000/-. Some amount is required to be deducted for accelerated payment and in our view, deduction of Rs. 18,000/- would be appropriate. Consequently, the compensation payable by the respondents is Rs. 1,50,000/-. The respondents are naturally bound to pay interest on the said amount @ 12 per cent per annum from the date of filing of the application till realisation.