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1994 JLJ 192
S.K. Dubey and K.M. Pandey, JJ.
Dhanvanti (Mahila) and others v. Phulwant and others
M.A. No. 239 of 1992; against the award passed by Shri L.S. Suman, Member
Second Additional Motor Accidents Claim Tribunal, Shivpuri in Claim Case.
No. 49 of 1987; Decided on 29.7.1993
The doctrine of res ipsa loquitur, which is a rule of evidence departing from the normal rule that it is for the plantiff to prove the negligence, but in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plantiff can prove the accident, but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plantiff to prove the accident and nothing more and the present case is like that were the accidents speaks for itself. AIR 1977 SC 1735 and 1989 JLJ 541 relied on. [Para 7
(2) Motor Vechicle Act, 1988 – S.173 – appeal under – appellate Court does not enjoy advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their oral evidence. AIR 1983 SC 114 followed. [Para 8
(3) Criminal P.C., 1973 – S.154 – F.I.R. – it is not substantive piece of evidence – can be used for corroboration or contradiction of its maker. [Para 10
(4) Motor Vechicles Act, 1988 – S.166 – claim case under – evidence recorded in criminal case – cannot be used in claim case – it is inadmissible. AIR 1984 MP 173 relied on. [Para 10
(5) Motor Vehicle Act, 1988 – S.168 – deceased earning Rs. 400/- per month – wife, three minor children and mother dependents – dependency cannot be less than Rs. 300/- per month – compensation fixed by multiplier – there cannot be any deduction for lump sum payment. 1989 JLJ 541 relied on. [Para 12
(6) Motor Vehicles Act, 1988 – S.168 – deceased suffered pains and mental agony for 7 days – it becomes his estate – dependents are entitled to at least Rs.5,000/- should also be awarded to the widow of deceased. 1993 JLJ 437 relied on. [Para 13
¼1½ fof/kd lw= & Lo;a çek.k & lk{; dk fu;e gS & lkekU; rkRi;Z ;g gS fd nq?kZVuk vius fo"k; esa Lo;a cksyrh gSA
Lo;a çek.k dk fl)kar lk{; dk fu;e gS tks bl lkekU; fu;e ls fopyu gS fd mis{kk oknh dks lkfcr djuk gksrh gS] fdarq dqN ekeyksa esa oknh dks fopkj.kh; dfBukbZ gksrh gS D;ksafd mls nq?kZVuk dk lgh dkj.k Kkr ugha gksrk] fdarq ;g iw.kZr% çfroknh dh] ftlus og dkfjr fd;k] tkudkjh esa gksrk gSA oknh nq?kZVuk lkfcr dj ldrk gS fdarq mis{kk LFkkfir djus ds fy, ;g lkfcr ugha dj ldrk fd ;g dSls ?kfVr gqbZA bl dfBukbZ ls Lo;a çek.k dk fl)kar ykxw djds cpuk gksxkA ‘‘kCn Lo;a çek.k dk lkekU; rkRi;Z ;g gS fd nq?kZVuk vius fo"k; esa Lo;a cksyrh gS vFkok viuk o`Ùkkar Lo;a dgrh gSA ,sls ekeys gksrs gSa ftuesa nq?kZVuk vius fo"k; esa Lo;a cksyrh gS ftlls oknh dks dsoy nq?kZVuk lkfcr djuk gksrh gS] vkSj dqN ugha vkSj çLrqr ekeyk blh çdkj dk gS fd nq?kZVuk vius fo"k; esa Lo;a cksyrh gSA , vkb vkj 1977 ,l lh 1735 rFkk 1989 ts ,y ts 541 voyafcrA ¿iSjk 7
¼2½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 173 & ds v/khu vihy & vihy U;k;ky; dks] fopkj.k U;k;ky; dks çkIr mlds le{k lk{khx.k dh mifLFkfr vkSj viuk ekSf[kd lk{; nsus dh jhfr ds çs{k.k dh vuqdwy ifjfLFkfr miyC/k ugha gksrhA , vkb vkj 1983 ,l lh 114 vuqlfjrA ¿iSjk 8
¼3½ naM çfØ;k lafgrk] 1973 & /kkjk 154 & ç-b-fj-&lkjHkwr lk{; ugha gSa & mldks fy[kus okys dh laiqf"V vFkok [kaMu ds fy, ç;qDr fd;k tk ldrk gSA ¿iSjk 10
¼4½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 166 & ds v/khu nkok ekeyk & nkafMd ekeys esa vfHkfyf[kr lk{; & nkok ekeys esa ç;qDr ugha fd;k tk ldrk & vxzká gSA , vkb vkj 1984 e-ç- 173 voyafcrA ¿iSjk 10
¼5½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 168 & e`rd dk miktZu #- 400@& çfr ekl & iRuh] rhu vo;Ld ckyd rFkk ekrk vkfJr & vkfJrrk #-300@& ls de ugha gks ldrh & xq.kd }kjk çfrdj fu;r & ,deq‘r Hkqxrku ds fy, dVkSrh ugha gks ldrhA 1989 ts ,y ts 541 voyafcrA ¿iSjk 12
¼6½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 168 & e`rd us 7 fnu rd ihM+k vkSj ekufld nq[k lgs & ;g mldh laink cu tkrh gS & vkfJr ukeek= dh Hkk¡fr U;wure #-5000@& ds gdnkj gSa & lkgp;Z dh ijaijkxr jde] vFkkZr~ #-5]000@& Hkh e`rd dh fo/kok dks vf/kfu.khZr dh tkuk pkfg,A 1993 ts ,y ts 437 voyafcrA ¿iSjk 13
S.K. Dubey, J. -- 1. This is an appeal under section 173 of the Motor Vehicles Act, 1988, by the claimants for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Shivpuri, (for short, the 'Tribunal ') in Claim Case No. 49 of 1987 vide award dated 1.4.1992.
2. On receipt of the notice, National Insurance Company has preferred cross-objections under Order XLI, Rule 22, CPC read with section 151 of the Code of Civil Procedure, whereby the Insurance Company has challenged the finding of rash and negligent driving by the driver of the vehicle -- tractor, M.P.H. 9754 and has also contested that as the deceased was the passenger in the tractor-trolley who was going with the marriage party, the Insurance Company is not liable to indemnify the owner/insured. Therefore, the award passed against the Insurance Company holding it jointly liable to pay the compensation awarded by the Tribunal be set aside.
3. The facts giving rise to this appeal are that the deceased Sitaram was 25 years of age and was carrying on his livelihood by beating of Dhapli, a musical instrument, and was also doing the job of a labourer. On 8.5.1987, a marriage party was travelling in a trolley attached to the tractor which was going to Nayabkheda (Singhpur), At the relevant time, the tractor was being driven by Kulwant, owned by Jaswant Singh which was insured with respondent No.3. At the place of occurrence on road, Sitaram was going ahead of the tractor as a padestrian and was playing the Dhapli, as the tractor was in speed, because of the slope on the road near the nallah, the tractor rolled down as the driver lost control. The tractor, after dashing Sitaram, overturned, as a result of which Sitaram received multiple severe injuries. An F.I.R. (Ex. D/2-C) was lodged at the Police Station, Bhonti, District Shivpuri by one Dayaram, son of Basanta and the injured was taken to the Government Primary Health Centre at Manpura and thereafter, to Government 'Hospital at Shivpuri, and then to J.A. Group of Hospitals, Gwalior, where the treatment was given, but he could not be survived and died on 15.5.1987.
4. The widow, appellant No.1 and the three minor children of the deceased, namely, Dayaram and Bhagirath, sons and Kumari Radha, daughter and the mother Mahila Chhitia, preferred a claim and claimed compensation of Rs. 2,95,000/- in various heads for the death of Sitaram, arising out of the use of the tractor. The owner/driver and the Insurance Company contested the claim. During trial, owner and driver absented who then were proceeded ex parte. The Tribunal, on appreciation of evidence adduced by the parties and the statement of the driver Kulwant Singh, who examined himself, recorded a categorical finding that at the time of the accident, the deceased was going on the road playing Dhapli and not travelling as a passenger. De Tribunal further found that as admittedly the tractor and the trolley overturned; the doctrine of res ipsa loquitur applies, therefore the burden was on the opposite side to prove that the accident did not occur due to the negligence of the driver and was inevitable. After holding that the driver Kulwant Singh lost control over the tractor, on the slops of the road, resulting in the accident, determined the monthly• earning of the deceased as Rs. 400/- and the dependency as Rs.. 200/- per month while salecting a multiplier of sixteen, determined the compensation of Rs. 38,400/and also Rs. 2,000/- towards medical expenses. Out of the total compensation of Rs. 40,400/-, a deduction of 10% was allowed towards lump sum payment. Thus, the Tribunal awarded total compensation of Rs. 36,360/- with 12% interest per annum from the date of the application till payment and the costs. It is this award of which the claimants by this appeal, claim enhancement and the Insurance Company, by cross-objection, claims dismissal.
5. In support of cross-objections, Shri B.N. Malhotra, learned counsel for the Insurance Company, contended
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