JUDGMENT
Swamikkannu, J.
1. The decision in 1970 A.C.J. 44 Pandian Roadtwys Corporation, Madurai v. Kafunanithi 94 L. W. 786 and the decision in 94 L. W. 786 (Pandian Roadways Corporation, Madurai v. Karunanithi 94 L. W. 786) are relied on by the learned Counsel for the appellants in support of their contention that the Tribunal has not properly appreciated the evidence available on record, and it had wrongly come to the conclusion that the evidence emanating from the witnesses: PW 1 Cbinnaponnu, PW 2 Royappaa and PW 4 Irudayaraj were unreliable. It is also pointed out by the learned Counsel for the appellants herein that nothing material has been brought in the cross examination of PW 1, PW 2 and PW 4, the witnesses examined on the side of the appellants herein so as to reject their claim for compensation. It is further submitted that the ingredients of the offence of rashness and negligence on the part of the driver of the vehicle involved in the accident have been proved in the instant case before us. Since it is in evidence that the driver had fled from the scene of accident, it is a case of hit and run. It is relevant in this connection to note that the Tribunal came to the conclusion that the claimants have not proved rashness and negligence on the part of the driver of the vehicle involved in the accident. The Tribunal came to the conclusion that:
in the event of an Award, a flat sum of Rs. 5000/- will be just and adequate compensation for the death.
2. The only point that arises for consideration in this appeal is:
Whether the Tribunal had properly appreciated the evidence that had been let in through PW 1, PW 2, PW 4 and PW 5 ?
3. It is needless to say that RW 1 Padmanabhan who is no other than the investigating officer has been examined on the side of the respondents herein before the Tribunal. The driver of the vehicle involved in the accident has not been examined as a witness in the instant case before us. Respondents 1 and 2 remained exparte. The third respondent-Insurance Company filed a counter denying rashness on the part of the lorry driver and stated that the vehicle was not insured with them. That the vehicle has been insured with the third respondent is proved beyond all reasonable doubt because of the non-production of any evidence on the part of the Insurance Company. So, the irresistible conclusion is that the Insurance Company is the one which had insured the insurable interest in the instant case before us with respect to the vehicle in question, Having come to this conclusion, let us now decide the question as regards rashness and negligence. The Tribunal has discarded the evidence of PW 1, PW 2 and PW 4, since they all stated parrot like that the deceased boy got into Kuppam Road to avoid a sand heap on the pavement and at that time the lorry hit him straight resulting in grievous injuries and consequent death. Is it because their version is one and the same regarding the actual occurrence or is that they resemble as it they got by heart their depositions and deposed the same before the Tribunal ? No convincing and plausible reason has been by the Tribunal as to why the evidence emanating from PW 1, PW 2, and PW 4 is a parrot like. So, to discard the evidence emanating from the three witness by the Tribunal is very serious, and unless acceptable reasons are given, the rejection of their evidence and discarding tbeir evidence by the Tribunal is an irresponsible statement. There is an element of utter neglect and disregard of the principle that govern sifting of the evidence emanating from the witnesses by the Tribunal, especially when they were before the Tribunal with flesh and blood at the time of deposing before it. Merely on the ground that PW 1 and PW 4 were not examined during investigation by the police regarding the occurrence, it does not mean that their evidence has to be rejected in toto. A court can always assess the evidence of the witness, whether it is true or otherwise. Of course, tangible reason has to be offered by the Court for rejecting of the evidence emanating from the witness. There is every possibility of truth from the evidence of a witness ; and because of his incapacity to express properly and exhibit as if he was telling something which is far away from the truth. But it is for the court to scrutinise the evidence emanating from the witness and to decide at that juncture whether truth is coming out of the deposition of the witness or falsehood is coming out of his countenance. Is the word emanating from the tip of the tongue or as a result of the calculated plan that had been indulged by the witness, either by means or at the instigation of somebody ? And these aspects can well be discussed by a court of law when once there are suggestions in the cross-examination regarding those features The evidence emanating from the witness is some-thing like a figure that comes out a curve that are stike by a painter or by an author of a portrait. As and when the words are emanating from the witness, the demeanour of the witness itself can reveal as to whether he is deposing purposely at the relevant stage of evidence or is it due to physical infirmity in him that there had been such a kind of modulation in his evidence. The evidence emanating from a witness must be coherent and should also exhibit the characteristics of true incidents and this will be decided by a court, of course, by giving sound and plausible reasons as to why the said evidence has to be rejected. When there is rejection of the evidence of a particular witness, it is incumbent on the court to give reason as to why it is rejecting his evidence. In other words, if the evidence of a witness is rejected by the Court, that tells upon his character and future status in the society, and as such the courts are bound to exhibit vigil and utmost cars and caution before rejecting the evidence emanating from a witness. Rejecting evidence of a witness is practically coming to a conclusion that that witness should not be believed. In other words, what he deposes, according to the court, is a falsehood. In the instant case before us, the award under appeal is bereft of any reason and the observation of the tribunal is sircastic and baseless as regards the rejecting of the evidence of PW 1, PW 2 and PW 4. It is not the status of an individual that counts. In other words, a witness may be an individual or a straw. In other words, a man of straw ; yet, he is a citizen so far as our country is concerned and when the comes as a witness, the respect he enjoys is as a witness of a case. Not merely on the ground of wealth or status, education or any other extraneous factors, the evidence of a witness can be weighed But the utmost responsibility vested with the court is to scrutinise the evidence of a witness and come to its own conclusion as to whether that individual is speaking the truth or not. The court is only administering justice. Dharma, according to Hindu law, is something wide in its scope. It is not as if that particular aspect of Hindu Law has to be ignored while exercising the discretion by the court. The discretion exercised by the Court should not be arbitrary or without any basis. Under the circumstances bearing in mind the above principle and taking the deposition of the witnesses as true, this Court is of the view that the observation of the Tribunal regarding the reason for the rejecting of the evidence of the witnesses–PW 1, PW 2 an J PW 4 is something very serious which this Court takes serious note of and its conclusion is not based on sound reasoning and evidence, and it is bereft of material particulars. It is also equally an irresponsible statement when the Tribunal says that these witness lose nothing by giving evidence that they were eyewitnesses. They are chance witnesses and they know PW 5 father of the deceased, who lives in the same street, no wonder, they have obliged PW 5 with their evidence, and in the opinion of the tribunal, they have obliged PW 5 with their evidence, and in its opinion they are got up witnesses. The above observation of the Tribunal, once again this Court has to hold, it without basis. Merely because one is acquainted with the other, they cannot be held as a chance witness. If any offence is committed at a brothal or in a club where cards are played, it is only persons who are accustomed to go to those places are cited as witnesses. As such, it is no wonder that it is only persons who are acquainted with the father of the deceased will come forward to give evidence regarding the occurrence in this case. The reason for rejecting the evidence of the witnesses viz., PW 1, PW 2 and PW 4 examined on the side of the appellants before the Tribunal is not at all acceptable and they are trivial in nature and not at all go to the root of the evidence. In the instant case, PW 2 gave the F.I.R. to the police immediately after the occurrence. The first information report is only an encyclopaedia. Because the P.I.R. contains some infirmity, it does not mean that the same is a false document or created for the occasion. F.I R. is only to set the law in motion, and it is not expected to contain all the particulars. The Tribunal seems to have been carried away by the F.I.R. wanting certain particulars. If the court felt that there was something which is untoward in the contents of the same, it ought to have put some questions to the witness concerned, as per the procedural law of the land, namely, Section 165 of the Indian Evidence Act. Under the circumstances, there is no justification for the observation of the Tribunal in paragraph 5 and paragraph 6 of its Award.
4. A careful and anxious scrutiny of the entire evidence in this case, both oral and documentary, shows that the deceased had been hit and done away with only because of rash and negligent driving of the vehicle in question by its driver at the time of the accident. PW 2 has stated in his witness that three persons including the deceased boy were playing marbles on the payment adjoining Kuppam Road and that the marable rolled on the road, whereupon the deceased boy ran to pick the same and at that time the left portion of the passing lorry hit him. Merely because PW 2 would give an entirely a different version in the witness box that the boy was walking on the road and that the lorry came rashly and hit the boy, than the one what has been stated by PW 2 in the F.I.R.-Ex, P. 1, which is not a vital discrepancy or contradiction, the evidence of PW 2 cannot be discarded The fact remains that PW 2 was present at the place of occurrence during the time of occurrence. The question is whether the deceased had contributed to the accident. There is nothing on record to show that the deceased had contributed his act so as to cause the accident which involved his death, nor there is anything wrong or false in the contents of Ex. P. 1 F. I. R. The presence of PW 2 cannot also be disputed because nothing material had been elicited in the cross-examination of PW 2 to doubt his presence. Therefore, with the evidence of PW 2 alone, it can be held that only due to rash and negligent driving of the lorry in question by its driver, the accident had occurred in which the deceased sustained grievous injuries to which he succumbed Before accepting the contents of the document which is filed as an exhibit or the varacity of the oral evidence emanating from an individual while figuring as a witness in the box, the reason for rejecting the evidence of PW 2 given by the Tribunal are not at all acceptable, and they are not trivial in nature and not at all go to the root of the evidence Merely because RW 1 emphatically dented that he obtained the signature of PW 2 on a blank paper and RW 1 further reiterated that PW 2 told him that the deceased was playing marble and then suddenly ran across the road to pick up the marble, as already stated by this Court, the evidence of PW 2 cannot be rejected or discarded. RW 1 found on investigation that the occurrence was inevitable. It was ‘inevitable’ so far as RW 1 is concerned. This Court comes to the definite conclusion that only due to rash and negligent driving of the lorry by its driver in the instant case before us, the accident occurred in which the deceased died. We are not here guided by the opinion of anybody. A court has to cone to its own independent conclusion and not carried a,way by the evidence of RW 1 who is no other than the investigating officer. Merely because the road was narrow having 6.30 meters wide and there was a side-road celled Kuppam Road, it does not mean that the driver of the vehicle may be careless. In the instant case, such a kind of care which a prudent and reasonable driver, under the circumstances, ought to have been exercised, which aspect when scrutinised, clearly shows that the driver of the vehicle had failed to exercise. In other words, he had indulged in rash and negligent driving of the vehicle which resulted in the accident. This Court sets aside the finding of the Tribunal that the appellants herein have not proved rashness and negligence on the part of the lorry driver, and holds on the evidence available on the side of the appellants herein including the documentary evidence let in on their side, that they have proved beyond all reasonable doubt that it was only due to rash and negligent driving of the lorry in question the occurrence in the instant case before us had taken place in which the deceased died.
5. So far as the quantum of compensation is concerned, this Court is of the opinion that the deceased being an youngster, aged about 12, his parents the appellants herein would have dream that he would have become a great man in future, which expectation had been completely thrown to the Wind because of the rash and negligent act of the driver of the lorry dashing against the deceased and causing his death. The deceased died on the way to the hospital. At least for about few minutes, the deceased would have undergone exerutiating pain and suffering. There is nothing to show that he was unconscious when he had been taken from the place of occurrence to the hospital. Under the circumstances, this Court is of the opinion that if a sum of Rs. 2.000/- is awarded for pain and suffering, certainly it would meet the ends of justice.
6. So far as the cremating charges are concerned, this Court is inclined – to grant the sum of Rs. 500/- as claimed by the appellants herein.
7. So far as the loss of earning is concerned, it is submitted by the learned Counsel for the appellants that the deceased was reading in V standard at the time of the occurrence. But there is no evidence to prove the same. Similarly, there is no evidence to show that he was earning at the time of the accident. But it is not as if that the parents of the deceased who are the appellants herein can go without compensation for the loss of their son in the gruesome accident. It is submitted by the learned Counsel for the Insurance Company that there is no evidence that the appellants herein were evincing interest in bringing up the deceased son so as to make him an honourable citizen of this country. It is told that Sri Robert Clive was an urchin in the street during his young days; he came to India, established British Company and ruled over the country. Therefore, we do not know how a person will shine in future. In the instant case before us, this Court is of the opinion that if a sum of Rs. 10,000/- is awarded for loss of earning, certainly it would be in the interest of justice. Therefore, in all, the appellants herein would be entitled to a total compensation of Rs. 12,500/- and they will share the amount in equal proportions.
8. In the result, the award of the Tribunal is hereby set aside, the appeal is allowed and an award for a sum of Rs. 12,500/- is passed in favour of the appellants herein and against the respondents herein. The appellants herein would share the award amount in equal proportions. The Insurance Company is directed to deposit the award amount before the Tribunal within two monthe from today. In default, the award amount would carry interest at 6% per annum from the date of the claim petition till date of deposit. In the circumstances of the case, there is no order as to costs.