JUDGMENT
Dinesh Maheshwari, J.
1. This is claimants’ appeal under Section 173 of Motor Vehicles Act, 1988 against the award dated 15.5.1996 made by the Motor Accidents Claims Tribunal, Dungarpur (‘the Tribunal’) in Claim Case No. 169 of 1993 and arises on the facts and in the circumstances narrated hereinafter.
2. One Habibnur Khan, aged about 38 years, took ticket No. 49104 for travelling to Ahmedabad from Udaipur, boarded a bus of Rajasthan State Road Transport Corporation (‘the Corporation’), bearing registration No. RJ 14-P 2084 on 14.5.93 at 11 p.m. and occupied seat No. 43. In the night intervening 14/15.5.1993, the bus capsized near Khajuri at National Highway No. 8 between Bichchhiwara and Ratanpur and several persons including Habibnur Khan sustained injuries.
3. Habibnur Khan filed a claim application against Govind Singh, driver of the bus and the Corporation, its owner on 2.12.1993 before Tribunal with an application under Section 5 of the Limitation Act stating, inter alia that the injuries sustained by him were fracture of his backbone leading to paraplegia and he was condemned to bed for the whole of his life and sought compensation to the tune of Rs. 11,44,000. The claimant averred for quantification of compensation that he was 38 years of age and was engaged with Lamba Gram Seva Sahakari Samiti Ltd. as Manager, getting a salary of Rs. 1,605 per month; because of the injuries sustained in the accident, his backbone was fractured and entire lower part of his body has been paralysed. He was admitted to Himmat Nagar Hospital after the accident and then sent to Ahmedabad Civil Hospital where he was treated from 15.5.93 to 30.8.1993; he was unable to get out of the bed; has to remain confined to the bed only and he has become a liability on the family and has been reduced to a living corpse. The applicant pointed out that his family including his wife, four minor sons and a minor daughter and old parents, all were dependent on his income and he was rendered unfit to do any job. Amount for compensation was stated on different heads of the loss of salary, loss of future income, special diets, attendants, pain and suffering, loss of marital life and destruction of the amenities of life.
4. Claim application filed on 2.12.1993 was pending consideration when a prayer was made before the Tribunal on 16.4.1994 for awarding interim compensation by producing three photographs of the claimant, but on a request for adjournment made on behalf of the non-applicants, the case was adjourned to 5.5.1994.
5. Habibnur Khan died on 18.4.1994, about 11 months after the accident at Tonk.
6. The heirs and legal representatives of Habibnur Khan got substituted in the claim application as claimants and sought amendment of the claim application seeking compensation for the loss occasioned by his death; amendment sought for was allowed on 14.3.1995 and claimants were permitted to file amended claim application.
7. The amended claim application was submitted on 14.3.1995 itself and therein the claimants, present appellants, while reiterating the averments already made by the victim about his pathetic condition and suffering from paraplegia, stated their claim for compensation on account of loss of dependency and loss of consortium, love and affection and funeral expenses. It was pointed out that the deceased had to remain confined to bed ever since the date of accident and had developed bruises and sores on his hips and so also inside the intestines and the tongue; the weakness set in the body of the deceased kept on increasing and because of injuries ultimately he died on 18.4.1994. The applicants were dependent on the income of the deceased and were rendered totally supportless. A claim for compensation for Rs. 12,48,380 was made.
8. The driver of the bus, non-applicant No. 1, in his reply admitted the accident having been caused because of his falling for a nap, which he attributed to the officers of the Corporation for sending him on driving duty despite his want of proper rest.
9. The Corporation, non-applicant No. 2 submitted in its reply, inter alia, that the deceased had not received any such injury because of which he would die 11 months after the accident and the deceased must have died his natural death and the claimants were seeking to recover compensation in the name of accident. It was also stated that because of some other disease and its treatment the claimants have alleged long illness of the deceased and on that basis, this claim application was submitted. It was also averred that in the claim application filed by the deceased, it was never stated that he was on the deathbed nor he expressed any such likelihood of his dying because of the injuries nor filed any certificate from a medical officer of his imminent death. It was further stated that no medical certificate was produced that the injured had died because of the accident only and as he had died 11 months after the accident, there was no basis to believe that the death was a result of the accident. It was also alleged that the accident was caused because of sudden deflection of vehicle No. RPJ 6111, who was responsible for the accident and the persons related to that vehicle ought to be impleaded as parties to the claim application. It was also suggested that the original claim application filed by the injured was itself barred by time and, therefore, the amended claim application was also barred by time.
10. Trial of this amended claim application was consolidated with other Claim Case No. 160 of 1993 of one Shanti Lal Jain, who also sustained fracture at his right hand in the same accident.
11. After framing of necessary issues, in oral evidence, the said other claimant Shanti Lal Jain was examined as PW 1 and present appellant-claimant No. 1/1 Shakila Bano was examined as PW 2. No witness was produced by the non-applicants. The claimants have also produced certain documentary evidence which shall be discussed hereafter.
12. After hearing the parties, the learned Judge of the Tribunal proceeded to deal with the questions involved in both the cases by common award dated 15.5.1996.
13. Issue Nos. 1, 3 and 4 were decided against the non-applicants and it was held that the accident was caused due to negligence of the non-applicant No. 1; that the vehicle belonged to the non-applicant No. 2 and that the persons related with vehicle No. RPJ 6111 were not necessary parties. In respect of the injury case of Shanti Lal Jain, the learned Judge considered appropriate to award a sum of Rs. 10,000 as compensation for the injuries sustained by him.
14. Taking up the case of the present appellants, the learned Judge discussed the question of quantum of compensation and arrived at a figure of Rs. 50,000 while holding that it was not proved that Habib-nur Khan died because of the accident. The entire discussion by the learned Judge in the case of the appellants could be usefully reproduced as under:
(Omitted as in vernacular)
15. The Claims Tribunal has, therefore, awarded a sum of Rs. 50,000 to claimants-appellants towards the loss arising out of the injuries sustained by Habibnur Khan like treatment expenditure and loss of salary of 11 months, etc. but denied compensation for the loss arising out of the death of Habibnur Khan on the ground that it was not proved that he died because of the injuries sustained in the accident. The claimants have questioned in this appeal the legality and validity of award made by the Tribunal.
16. Assailing the findings aforesaid, learned Counsel for the appellants vehemently contended that the learned Judge of the Tribunal was seriously in error in not considering the injury certificate, certified copy whereof was already available on the record and in not considering the facts directly prayed on record which make it clear that the death of the victim Habibnur Khan was only as a result of the horrible injuries sustained by him which led to paraplegia and the injured who took to bed after the accident, never got up. The death was directly a result of the injuries sustained in the accident and the cause for not obtaining post-mortem report has been duly explained and a reasonable compensation in this case to the dependants ought to have been allowed. Per contra, learned Counsel for the Corporation strenuously contended that it was never established that the death of Habibnur Khan was a result only of the injuries sustained in this accident and in that situation Tribunal was justified in awarding reasonable amount towards the loss arising out of the injuries and the award calls for no interference.
17. The questions calling for determination in this case are as to whether the Tribunal was right in its finding that it was not established that Habibnur Khan died because of injuries sustained in accident and as to whether the amount awarded by the Tribunal is adequate compensation?
18. Having given an anxious consideration to the rival submission and having scanned through the entire record, this court is satisfied that the learned Judge of the Tribunal was absolutely in error in taking up consideration of the questions involved in this motor accident claim case not only as a civil suit, but even to the level of the requirements of proof for removal of all doubts, as if to substantiate a charge in criminal trial. The entire approach had been from all absolutely wrong and erroneous angle. The impugned award with denial of just compensation to claimants cannot be approved and deserves to be modified.
19. Learned Tribunal formed the opinion that it was not proved that Habibnur Khan died because of the injuries sustained in the accident fundamentally for the reason that no post-mortem report was produced, nor injury report was produced, nor any other medical certificate was produced. However, at the same time, learned Judge specifically held that it could be accepted that after the accident, till his death, the deceased remained under treatment and for this reason allowed Rs. 17,700 as the loss of salary for 11 months at the rate of Rs. 1,605 per month as proved from the salary certificate Exh. 21.
20. The facts and circumstances surrounding the present claim case have been referred in detail hereinabove and it is found that late Habibnur Khan filed the claim application on 2.12.1993 with an application under Section 5 of the Limitation Act and it was given out in the application itself that he had suffered fracture of his vertebral column and has become paraplegic and was doomed to bed for the whole of his life. With the claim application filed on 2.12.1993 several documents were filed which included certified copies from Criminal Case No. 715 of 1993 and amongst others, a certified copy of his injury certificate available at page C-9/11 of the record, was also filed. For inexplicable reasons, this certified copy has not formerly been exhibited in evidence. The record shows that photographs of Habibnur Khan were filed on 16.4.1994 when a prayer was made for urgently considering the grant of interim compensation. These photographs have of course been exhibited in evidence as Exh. 75 to Exh. 78 and bills of medical expenditure have been produced as Exh. 22 to Exh. 70.
21. The respondents were not in a position to controvert the submissions made in the amended claim application filed by the dependants of Habibnur Khan and, therefore, it was suggested that the deceased might have died a natural death and even this much of audacious averments have been made in a pert manner that he did not state while filing his own claim application that he was nearly dead, nor expressed any likelihood of his dying because of these injuries. Except taking such averments, the respondent Corporation had nothing concrete to aver and prove so as to controvert the submissions of the claimants.
22. The defence of the respondents proceeded only on the basis that no medical certification was available on record to show that death was caused by the injuries sustained in the accident and the learned Judge has also proceeded on the same considerations in a mechanical manner. The learned Judge has further proceeded as if considering strict proof of a fact in a criminal trial where the prosecution is required to substantiate the charge beyond all reasonable doubts. The standard of proof required in a motor accident claim case cannot be taken to such a level and, it being essentially a matter dealing with the civil liability of damages under a welfare legislation, ought to be approached in a different manner and reasonable preponderance of probabilities are required to be looked at.
23. Learned Judge has failed to appreciate that for such Tribunals, while dealing with a motor accident claim case, the law requires observance of the rules of natural justice in the conduct of the inquiry and the strict rules of evidence are not insisted upon. It is true that in the present claim case, for a sheer negligence, which could be attributed anywhere else but not to the claimants, who have been shown to be poor and illiterate persons, a certified copy of the injury report available on case file was not got exhibited in evidence. However, that is not and that cannot be the end of the matter.
24. There remains on record uncontroverted testimony of the claimant Shakila Bano and learned Judge has acted wholly illegally in not examining her statement and the facts proved therefrom. Shakila Bano has stated that due to the accident, backbone of her husband was broken; he was taken to Himmat Nagar and then to Ahmedabad where he was treated for four months and the doctors ultimately declared him incurable and then he was taken to their house at Tonk. She has also pointed out that condition of her husband deteriorated from bad to worse, he was totally confined to bed and had to do everything on the bed only; because of regular lying on a cot, sores developed on his body and a special water bed was purchased for Rs. 900 but there was no improvement and after fighting for life for about a year, he died; and till he lived, his treatment continued. The claimant has also stated about the extensive expenditure incurred for the treatment, transportation, diets and attendant and that her husband continued to suffer pain and would only moan and could do nothing else.
25. It appears that it being a consolidated trial, on the day of her statement as PW 2 on 19.3.1996, prior to her, the other claimant Shanti Lal Jain was examined as PW 1 and he had exhibited in evidence F.T.R., charge-sheet, driving licence, site plan, drivers’ duty chart, drivers’ appointment order, in that sequence, as Exh. 2 to Exh. 7 and in the statement of Shakila Bano, PW 2, it has been stated that the papers relating to the police proceedings were Exh. 2 to Exh. 7. In this trial, Exh. 8 to Exh. 19 have all been produced relating to the said other claimant Shanti Lal Jain like his travelling ticket, X-ray reports, salary certificate, etc. Therefore, in the statement of Shakila Bano, straightaway the death certificate of her husband has been exhibited as Exh. 20, his salary certificate as Exh. 21, his medical bills Exh. 22 to Exh. 70 and travelling ticket and reservation slip Exh. 71 and Exh. 72. Thereafter, Exh. 73 and Exh. 74 have been produced which are some newspaper cuttings. In Exh. 73 it has been stated about Habibnur Khan, resident of Uniyara that after having become paraplegic, he was fighting for life in Ahmedabad Civil Hospital and despite repeated requests to the Corporation authorities, he has neither been taken care of nor any relief amount has been given and a prayer had been made to the Governor of the State for intervention and for providing of relief. Exh. 75 is the bust photographs of Habibnur Khan and Exh. 76 to Exh. 78 are his photographs while laying on the bed and the bruises and sores on his back and hip have been marked ‘X’.
26. PW 2 has stated that whatever bills were available have been produced and she could not retain all the bills and that her husband had died only because of the injuries sustained in the accident. She has also stated that two-three days before the death of her husband, she had been in a miserable financial condition and could not take him to hospital and, therefore, he died in the house only and, therefore, no post-mortem could be got conducted. She has stated that she was an illiterate and a poor person and was not aware of the requirement of getting the post-mortem report. The very same statement she has repeated in her cross-examination and has admitted that post-mortem report of the body was not obtained because they were illiterate, unaware and poor persons. She has also admitted that no certificate from any medical officer was obtained that her husband died because of these injuries only. She has also pointed out that immediately after his death, the community performed the last rites and that in their community, the dead body belongs to the community and not the family.
27. Having examined the claim averments as made by Habibnur Khan in his original claim application, the averments made by his dependants in the amended claim application, the entire material available on record including the medical bills and the photographs of the victim, this court is satisfied that the statement of the claimant Shakila Bano inspires absolute confidence and cannot be disbelieved. Although newspaper reports are hardly any substitute for a positive evidence but in view of the status of record as noticed above, and the said reports having been permitted to be exhibited in evidence, at least this much could be seen from the same that there was a cry made for relief to the family for Habibnur Khan having been rendered paraplegic because of the injuries sustained in the accident and that he was fighting for life. The claimants have not put forward any made up evidence nor any stagy grounds and it has been admitted that no medical certificate was procured for the cause of death.
28. The fact remains that Habibnur Khan died on 18.4.1994 and prior to that, claim application had already been filed clearly stating the nature of his injury and of his paraplegic condition obtained because of the injuries sustained in the accident and the family was in distress as could be noticed from the order sheet dated 16.4.1994 when photographs of Habibnur Khan were filed and request was made for early grant of interim compensation. Tribunal, instead, granted an adjournment on 16.4.1999 and Habibnur Khan died on 18.4.1994.
29. Learned Judge of the Tribunal has rightly accepted the fact that the deceased Habibnur Khan remained under treatment from the date of accident till his death. However, the learned Judge was seriously in error in failing to consider the natural consequence of such finding with reference to the nature of injuries sustained by the victim. If he sustained such an injury for which he remained under treatment with total confinement to bed from the time of accident till his death, the presumption is and has to be, that his death was a result of such injuries alone. There is no other evidence on record to even remotely suggest that he died for any other reason.
30. On a comprehensive consideration of the material on record, this court has no hesitation in coming to the conclusion that Habibnur Khan died only because of the injuries sustained in the accident. Finding on the issue No. 3 in Claim Case No. 169 of 1993 as recorded by the learned Judge of the Tribunal is modified and while the finding that the deceased was travelling in the offending bus and sustained injuries in the accident and that from the time of accident till death he remained under treatment are affirmed, however, the observation that the legal representatives of the deceased be awarded only the amount towards injuries, treatment and pain and suffering of Habibnur Khan are not approved and while retaining such compensation, it is held that claimants are further entitled for reasonable compensation on account of the death of Habibnur Khan which was a result of the injuries sustained in the accident.
31. With modification of the finding on issue No. 3, claimants-appellants become entitled to just compensation. Deceased Habibnur Khan was about 38 years of age as stated in the claim application and the same appears to be the correct age of the deceased with the age of his wife having been shown at 34 years and the age of his 5 children in the range of 16 to 6 years. The claimant Nos. 7 and 8 are the parents of the deceased aged about 65-60 years. Deceased was working as a Manager in Lamba Gram Seva Sahakari Samiti Ltd. and was getting a salary of Rs. 1,605 per month (vide Exh. 21). In view of the age of the deceased and the nature of his job, even if substantial enhancement of income in future is not expected a reasonable enhancement of about 1.3 times the last drawn salary could be taken for an average income of Rs. 2,080 per month. With a larger family to support, instead of conventional 33 per cent towards the personal expenditure, it shall be appropriate to deduct 25 per cent towards the personal expenditure of the deceased which leads to an average monthly dependency of Rs. 1,560 and gives a multiplicand of Rs. 18,720 per annum (Rs. 1,560 x 12). In view of the respective age of the victim and the claimants, a multiplier of 15 could reasonably be provided which leads to the pecuniary loss figure of Rs. 2,80,800. An amount of Rs. 10,000 as loss of consortium to the wife of the deceased and an amount of Rs. 5,000 to each other claimant including the children and the parents for loss of love and affection also deserves to be allowed and, therefore, total amount of non-pecuniary loss comes to Rs. 45,000. This court is clearly of the opinion that in the facts and circumstances of the present case, a further award of Rs. 3,25,800 (Rs. 2,80,800 + Rs. 45,000) deserves to be made in favour of the claimants along with interest at the rate of 7.5 per cent per annum from the date of filing of amended claim application, i.e., 14.3.1995 with appropriate direction for apportionment of the amount.
32. As a result of the aforesaid, this appeal is allowed, the impugned award is modified and the claimants-appellants are further awarded an amount of Rs. 3,25,800 with interest at the rate of 7.5 per cent per annum from 14.3.1995 and in the facts and circumstances of this case, the appellants are also allowed the costs of this litigation quantified at Rs. 5,000. Amount payable under this award shall be deposited within 30 days by the respondent, Rajasthan State Road Transport Corporation with the Tribunal and on deposit, a sum of Rs. 20,000 be paid cash to the appellant No. 1 and the remaining amount be apportioned amongst the claimants in the manner that the wife of the deceased, appellant No. 1 be given 30 per cent of the amount and the remaining appellant Nos. 2 to 8, children and parents of the deceased, each be given 10 per cent of the amount which shall be deposited in a monthly income scheme of the post office for six years in separate accounts of the appellants who shall be entitled to periodically receive the recurring amount of interest thereupon.