JUDGMENT
A.M. Ahmadi, J.
1. On the afternoon of 27th January 1980 on the Tarapur-Galiyana State Highway, a head on collision took place between a Fiat Car GJP 1403 and a motor truck GTG 3375 resulting in the death of Ashumal Nathumal Virlani, on inmate of the car. The widow and minor daughters of the said deceased filed a Claim Petition No. 320 of 1980 against the drivers and owners of the two vehicles involved in the accident as well as the Insurance Company with which the motor truck was insured seeking compensation in the sum of Rs. 2,00,000/-. At the trial the claimants examined the widow of the deceased and one Babubhai Chhaganlal who claimed to be travelling in the Fiat Car with the deceased at the time of the accident. The driver and the owner of the Fiat Car did not choose to enter the witness-box. The driver of the truck, Manilal Prabaudas, gave evidence on behalf of the opponents in relation to that vehicle. The Claims Tribunal rejected the claim of witness Babubhai Chhaganlal as an eye witness to the accident taking the view that his presence as a co-traveller with the deceased in the Fiat Car was doubtful. Relying on the evidence of the truck driver, the Claims Tribunal came to the conclusion that the driver of the Fiat Car was solely responsible for the accident. The Claims Tribunal, therefore, made an award against the driver and owner of the Fiat Car and rejected the Claim Application in so far as the driver and owner of the truck were concerned and consequently against the Insurance Company also. Relying on the evidence of the widow Khushaliben and the income tax assessment order, Exhibit 39, the Claims Tribunal estimated the income of the deceased at Rs. 15,000/- and on that basis made an award in the sum of Rs. 1,55,000/- with proportionate costs and interest at six per cent per annum from the date of the application till realisation.
2. The claimants feeling aggrieved by the award, particularly because the Claims Tribunal did not hold the driver and owner of the truck responsible for the accident, have preferred this appeal. By this appeal a two-fold contention is sought to be urged, namely (i) that the Claims Tribunal fell in error in exonerating the driver of the truck from the charge of negligence and in holding the driver of the Fiat Car solely responsible for the same and (ii) it adopted a conservative approach in estimating the income of the deceased and awarding Rs. 1,55,000/- only by way of compensation. On the other hand, the driver and owner of the Fiat Car have filed Cross Objections contending that the Claims Tribunal ought to have held the driver of the truck solely responsible for the accident and the amount awarded by the Claims Tribunal by way of compensation was very much on the higher side. The driver, owner and Insurance Company of the motor truck have also filed Cross Objections contending that the claim preferred by the claimants and the amount awarded by the Claims Tribunal was on the higher side. These Cross Objections have been preferred by way of abundant caution should this Court come to the conclusion that the driver of the motor truck was in any manner responsible for the accident To put it briefly, while the claimants contend that the driver of the motor truck was also responsible for the accident and the compensation awarded by the Claims Tribunal was on the lower side, the respondents contend that the compensation awarded by the Claims Tribunal was on the higher side and ought to be properly, reduced. The driver and the owner of the Fiat Car further contend that the Claims Tribunal erred in holding the driver of the Fiat Car solely responsible for the accident. It was contended by Mr. Amin, their learned advocate, that in any event this was a case of composite liability and the entire burden for the accident cannot fall on the driver and owner of the Piat Car. In view of the above, we are required to consider (i) whether the driver of the motor truck in question was in any manner responsible for the accident and (ii) whether the amount of compensation awarded by the Claims Tribunal was on the higher side as contended by the respondents or inadequate as contended by the appellants.
3. We will first consider the question regarding negligence. In this connection, besides the ocular evidence of Babubhai, Exhibit 40, and the truck driver, Manilal, Exhibit 42, we have on record the panchnama prepared by the police pursuant to the report filed by the truck driver regarding the accident. This panchnama has been taken on record by consent. This panchnama, Exhibit 31, was drawn up on the next morning between 7.45 and 9.00 A.M. This panchnama shows that the accident occurred on the Tarapur-Galiyana State Highway near Mile-stone No. 21. The total width of the asphalted road is shown to be 22 feet with 3 feet kutcha shoulders on either side. Tarapur is in the East and Galiyana is in the west. The road at the place of occurrence takes a slight bend. The car was proceeding from Galiyana to Tarapur whereas the motor trcuk loaded with tobacco bags was proceeding towards Galiyana. Both the vehicles were negotiating the bend at the time when this unfortunate accident occurred. The panchnama shows that there were glass splinters and colour flakes of the Flat Car lying at a distance of 12 feet from the Northern edge towards the south. These splinters and flakes were scattered in a radius of 4 or 5 feet. The southern edge of the tar road is shown to be 10 feet from the northern point of these splinters. From these primary facts it was argued that the motor truck was on the correct side of the road when the impact took place. It also transpires from the panchnama that because of the head-on collision, the front left reflectors of both the vehicles were shattered, the Fiat Car after the impact spun and its rear portion hit the rear of the truck and thereafter it took a U-turn and was found facing South-West at the time when the panchnama was pared. It was located at a distance of 31 feet from the alleged point of impact. The motor truck covered a distance of about 119 feet from the place of impact and was found facing West with its rear right wheel on the kutcha shoulder. The Fiat Car was badly damaged where as the damage to the motor truck was relatively minor. The damage to the Fiat Car was estimated to be in the vicinity of Rs. 7,000/- whereas the damage to the motor truck was estimated to be Rs. 500/- only. These primary facts have to be borne in mind while appreciating the oral evidence in regard to the accident.
4. The fact that the front left reflectors of both the vehicles were broken and the front left mudguard of the truck was bent while the front left side of the Fiat Car was smashed clearly indicates that there was a head on collision between the two vehicles Since the Fiat Car was lighter of the two, it spun on account of this head-on collision and took a turn before coming to a halt whereas the motor truck proceeded ahead and stopped at a distance of about 119 feet from the place of impact. It is necessary to bear in mind that the inmates of the car with the exception of Babubhai had suffered serious injuries and besides the deceased, the two others had become unconscious. The injuries suffered by the deceased were so serious that his condition had become critical on the spot and he soon succumbed to those injuries. It was the driver of the motor truck who reported the accident to the police and he alone was present at the time when this panchnama was drawn up. From this panchnama it becomes clear that the two vehicles were proceeding in the opposite direction, the truck was fully loaded with tobacco bags and both the vehicles were negotiating a bend at the time when the collision took place. The claimants’ witness Babubhai, Exhibit 40, has deposed that the Fiat Car was proceeding at normal speed and the driver had kept to his side but because the truck came at full speed, the accident occurred notwithstanding the effort of the car driver to apply the brakes. tie states that on account of this accident, three inmates of the car including the deceased were seriously injured and had become unconscious. The deceased survived for hardly 15-20 minutes before succumbing to the injuries. In his cross examination he has stated that he was at Khambhat where the deceased was taken till about 11-00 P.M arid, therefore, he had not filed any complaint with the police. He states that the police had not recorded his statement at any time after the accident. He also states that he was not aware why his employer, the deceased, desired to visit Baroda on the date of the accident. He was not able to state which portion of the car dashed against the truck. From these statements made in cross-examination the Claims Tribunal came to the conclusion that his presence in the car at the time of the accident was doubtful. For our purpose we will for the present discard his evidence.
5. The truck driver, Manilal, Exhibit 42, has deposed that he was proceeding alongwith the State Highway at a speed of about 25 kilometers per hour and while he was negotiating the bend, he saw the Fiat Car coming from the opposite direction at excessive speed. He estimates the speed of the Fiat Car to be 80 kilometers per hour. On seeing the Fiat Car he sounded the horn but the Fiat Car dashed against the front of his vehicle, swarved and hit his rear portion and ultimately fell in a ditch nearby. He states that after the accident he stopped his truck and went to the Tarapur-Police Station to report the accident. He was admittedly accompanied by a conductor in the truck. Under cross examination he stated that on seeing the Fiat Car five or seven feet away, he applied his brakes but could not avoid the accident. It is pertinent to note that the panchnama does not speak about brake marks on the road. He then proceeds to state that when the Fiat Car dashed against his truck, his vehicle was on the kutcha road. No such statement is found in the written statement of the Insurance Company which has been adopted by the driver and owner of the truck. He further states that Immediately after the collision, his truck was halted at the very spot and denies the fact that it had covered a distance of about 119 feet, a fact clearly established from the panchnama, Exhibit 31. It, therefore, appears from his evidence that for the first time he came out with the story that his truck was on the kutcha shoulder of the southern edge of the road when the accident occurred. This is with a view to persuading the Court to take the view that the Fiat Car was entirely on the wrong side of the road when it dashed against the truck It is not possible to accept this part of his improved version, as no such version is found in the written statement. He has also made an erroneous statement by saying that his truck had stopped at the very place of impact whereas it is clear that it had covered a distance of about 119 feet before coming to a halt. It is not difficult to imagine why he thought it necessary to depose that his truck was on the kutcha road when the impact took place. Once this part of his story is omitted and once the purpose of this improvement in the version is kept in mind, it becomes clear that he was trying to avoid his responsibility. From the physical condition Tound at the scene of occurrence, it would appear that the glass splinters and colour flakes were lying almost in the center of the road, a foot in the southern direction. From the damage caused to the left side mudguard of the truck and the reflectors of the two vehicles, it would appear that the accident occurred almost in the center of the road, may be a few inches on the southern side. It is not in the evidence of either Babubhai or the truck driver that the bend is so sharp that it is not possible to see a vehicle coming from the opposite direction. If the truck driver had seen the Fiat car and had time to sound the horn and apply the brakes, there can be no doubt that he could have avoided the accident by moving towards the left, if necessary, on the kutcha shoulder. From the above evidence which we have discussed, ignoring the evidence of Babubhai, we feel satisfied that this is a case of composite negligence and the entire fault cannot be placed at the door of the Car driver. Ordinarily the responsibility of a driver in charge of a heavy vehicle is greater than that of the driver of a light vehicle but having regard to the circumstances in which the accident occurred, we are inclined to think that the responsibility must be evenly shared. We, therefore, come to the conclusion that the driver of the truck was also responsible for the accident. To that extent we reverse the finding of the Claims Tribunal.
6. Coming to the question of compensation, we have the evidence of the widow, Khushaliben, Exhibit 37. She has deposed that her husband was about 35 years of age on the date of the accident. She states that he was running a grocery shop at Surendranagar and had recently started a cycle hire and repair shop in the same township in the name of his daughter Vanita. She has deposed that her husband’s annual income from these two shops was about Rs 15,000/- and in support she has produced in income-tax assessment order, Exhibit 39. She has also deposed that out of his earnings, her husband was paying her Rs. 800/- to Rs. 900/- per month for household expenses. In cross-examination she has deposed that after the accident the shops remained closed for about fifteen days and thereafter her husband’s elder brother Wadhumal took charge of the business and conducted the same. She has deposed that Wadhumal’s son Ashok is now looking after the business under a writing executed in that behalf. She has also deposed that her husband was maintaining accounts but she was unable to state if he was debiting the amount paid to her for household expenses in the account books. No question in respect of the income of the deceased was put to Babubhai who was employed by the deceased in the course of his evidence by the other side. Therefore, except the evidence of Khushaliban, we have no other evidence to go by. Some bills collectively marked Exhibit 38 have been produced to show that the deceased had purchased cycles between January and October 1979 worth about Rs. 19,455/-. These bills would go to show that the deceased had started a cycle shop and had invested almost Rs. 20,000/- in the purchase of cycles. The income-tax assessment order, Exhibit 39, is in regard to the assessment year 1980-81. The assessment was finalised in February 1982 and, therefore, it was rightly pointed out by counsel for the respondents that the return was filed, presumably for the first time, after the death of Ashumal. No return or assessment order in regard to the prior assessment years or the subsequent assessment years is produced It was, therefore, rightly submitted by counsel for the respondents that the Claims Tribunal erred in accepting the annual income of the deceased to be in the vicinity of Rs. 15,000/-. They further pointed out that even in the claim application the income of the deceased from the two shops is stated to be Rs. 900/- to Rs. 1100/- per month. Even if we take the statement made by Khushaliben at its face value, it is clear that the deceased was giving her Rs. 800/- to Rs. 900/- per month for household expenses. Since the deceased died leaving behind a widow and three minor daughters, the family can be divided into seven units, two units for each adult and one unit for a minor. Deducting the two units of the deceased, the annual income must be worked out on the basis of five units out of the earnings of the deceased from the two shops. It must be borne in mind that the income from the two shops has not disappeared altogether since the brother’s son, Ashok, is admittedly conducting the business of the two shops under an agreement with the widow. Therefore, the widow must be getting some income from these two shops which the claims tribunal has totally overlooked. Taking all these facts into consideration we think that the annual income of the deceased can be taken at Rs. 10,000/- and if we deduct the amount spent on the deceased from this income, the detum figure would work out to Rs. 7,000/- which may be multiplied by 15 years’ purchase factor. The total amount would thus come to Rs. 1,05,000/- to which we may add Rs. 10,000/- for loss of estate and award Rs. 1,15,000/- with proportionate cost and interest at 12 per cent per annum to the claimants.
7. In the result this appeal as well as the Cross-Objections are partly allowed. The order passed by the Claims Tribunal is set aside and is replaced by the following order:
The appellants-claimants will be entitled to a sum of Rs 1,15,000/-by way of compensation from all the joint tort feasors that is, all the opponents including the Insurance Company which is liable to answer judgment. The claimants will also be entitled to interest at 12 per cent per annum from the date of the Claim Application till payment as per the decision of the Supreme Court in Jagbirsingh v. General Manager, Punjab Roadways (1986) 4 SCC 431. The claimants will be entitled to proportionate costs throughout.
Out of the amount awarded, a sum of Rs. 1,00,000/- and 50 per cent of the interest should be deposited in a long-term Fixed Deposit with a Scheduled Bank by the Tribunal so as to enable the widow to receive monthly interest on the said Fixed Deposit for the maintenance of herself and the minor daughters. No advance or loan will be permitted on this amount placed by way of Fixed Deposit without the express permission of this Court. The rest of the amount may be paid to the claimant Khushaliben. The Insurance Company should deposit the money within eight weeks from today.