JUDGMENT
Deepak Gupta, J.
1. A claim petition under Section 166 of Motor Vehicles Act was filed by Asha Rani (widow), Anjana Sharma (daughter), Rajesh Kumar and Anil Kumar (sons) of late Kamal Dev against the Managing Director and Regional Manager of H.R.T.C., Sukhdev Singh, driver of bus No. HK 2029 as also Gurdial Singh, driver of scooter No. DIG 5987. In this claim petition it was alleged that deceased Kamal Dev was sitting as a pillion rider on scooter being driven by Gurdial Singh. It was further alleged that when the scooter was over the Swan Bridge, one rehra was going towards Jhalera (Una side) and in the meantime a bus of H.R.T.C. bearing No. HIK 2029 came from the opposite side. It is alleged that the bus was at a very high speed and the driver of the bus after crossing the rehra swerved the bus to the right and hit the scooter resulting in the injuries to the persons on the scooter. Kamal Dev succumbed to his injuries and died on the spot. It was further claimed that deceased was earning a monthly salary of Rs. 7,000 and compensation of Rs. 30,50,000 was claimed.
2. Respondent Nos. 1 to 3, i.e., owner and driver of the bus in their separate replies took up the plea that the bus was not involved in the accident at all. It was stated in the reply filed by respondent No. 3 that he left Una bus stand at 6.30 p.m. and when he reached Swan Bridge at about 6.40 p.m., a dead body was already lying and many people had collected there. The respondent No. 4 took up the defence that in fact he was not driving the scooter and the scooter was being driven by Kamal Dev deceased. He otherwise supported the version of claimants to the extent that the accident had occurred due to negligence of the driver of H.R.T.C. bus.
3. The claim petition by Asha Rani was filed on 1.12.1993. Respondent No. 4 was served in the claim petition and put in appearance through his counsel on 14.1.1994. Thereafter, respondent No. 4 filed a Claim Petition No. 26 of 1994 on 19.2.94. In this claim petition, he alleged that Kamal Dev was the driver of the scooter. He neither made the heirs of Kamal Dev respondents in the claim petition nor arrayed the owner of the scooter as a party respondent. He claimed damages of Rs. 3,65,000 against the H.R.T.C. on account of injuries sustained by him. In reply to this petition also, similar replies were filed by H.R.T.C. and the driver denying the involvement of the H.R.T.C. bus in the accident.
4. Issues in the claim application filed by Asha Rani were framed on 12.4.1994 which reads as follow:
(1) Whether Kamal Dev died in a motor vehicle accident due to rash and negligent driving of vehicle No. HIK 2029 driven by respondent No. 3 belonging to respondent Nos. 1 and 2 as alleged? OPP
(2) Whether the scooter No. DIG 5987 was being driven by respondent No. 4 at the time of accident as alleged? OPP
(3) Whether the accident took place due to rash and negligent driving of the said scooter by Kamal Dev deceased as alleged? OPR-4
(4) Whether petitioners are entitled to any compensation, if so, to what amount and from whom? OPP
(5) Relief.
5. Issues in the claim petition filed by Gurdial Singh were framed on 28.9.1994 which are as follow:
(1) Whether petitioner received injuries on his person in a motor vehicle accident on 8.10.1993 due to rash and negligent driving of bus No. HIK 2029 by Sukhdev Singh, respondent No. 3, as alleged? OPP
(2) If issue No. 1 is proved, to what amount the petitioner is entitled to as compensation and from whom? OPP
(3) Relief.
6. With the consent of learned Counsel for the parties both the claim petitions were consolidated and it was ordered that the evidence led in Asha Rani’s case shall also be read as evidence in claim petition of Gurdial Singh. Gurdial Singh did not seek any opportunity to lead separate evidence in his case.
7. The learned Tribunal vide its award dated 27.3.1995 has dismissed both the claim petitions after holding that it was Gurdial Singh, respondent No. 4, who was driving the scooter and that scooter had not struck against the bus. He held that since no allegations were made against Gurdial Singh in the claim petition filed by Asha Rani, the petition was to be dismissed.
8. This judgment shall dispose of the appeals filed by the legal representatives of Kamal Dev being F.A.O. No. 221 of 1995 and the appeal preferred by Gurdial Singh being F.A.O. No. 182 of 1995 which have been disposed of by a common award of the Tribunal below.
9. Mr. H.K. Bhardwaj, learned Counsel for the appellants has submitted that the findings of the learned Tribunal that the H.R.T.C. bus was not involved in the accident is totally erroneous. He has, however, supported the findings of Tribunal that it was Gurdial Singh and not Kamal Dev who was driving the scooter. According to him, the accident had occurred due to rash and negligent driving of the bus. He, therefore, submitted that he is entitled to get compensation from H.R.T.C. In the alternative, he submitted that at best it was a case of contributory negligence on the part of the drivers of both the vehicles. Therefore, the appellants are entitled to get compensation from both H.R.T.C. as well as from the owner and the driver of the scooter. The appellants have also filed two applications under Order 6, Rule 17 and under Order 1, Rule 10 of the Civil Procedure Code for amending the claim petitions and for arraying as respondents the owner of the scooter. These applications are C.M.P. Nos. 209 and 210 of 1996.
10. Mr. Sanjeev Kuthiala, learned Counsel for Gurdial Singh has submitted that the accident has occurred due to negligence of the bus driver alone. He also submits that the deceased Kamal Dev was driving the scooter and the findings of the learned Tribunal that it was Gurdial Singh who was driving the scooter is totally incorrect. In the alternative he submitted that even if it is held that Gurdial Singh was driving the scooter even then, in view of the fact that there are no allegations of negligence against his client in the claim petition filed by Asha Rani, his client cannot be held guilty for rash and negligent driving. He further submitted that if this Court is prima facie of the opinion that such finding is required to be given, then an issue should be framed and case should be remanded for trial afresh.
11. Mr. Rakesh Jaswal, learned Counsel appearing for the H.R.T.C. has supported the award of the learned Tribunal and has contended that the claimants have miserably failed to show that the bus was in any way involved in the accident. He also submits that in any event no negligence of the driver of the bus has been proved on the record. Notices of the application for amendment were issued and Ms. Devyani Sharma has put in appearance for the owner of the scooter who is proposed to be added as a party. She submits that it is too late now to allow this application. She further submits that by allowing this application, the petitioner will be permitted to take a somersault and it will allow them to set up a new case which should not be allowed.
12. I have given my careful consideration to the contentions of learned Counsel for the parties and have gone through the record.
13. A lot of arguments have been raised with regard to the pleadings or rather lack of pleadings in the case of claimant Asha Rani to contend that since there are no allegations of negligence against the scooter driver, therefore, no award can be passed against him.
14. Before considering this question, a few provisions of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) need to be noted. Section 158(6) of the Motor Vehicles Act reads as follow:
As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer.
15. Claims Tribunals are constituted under Section 165 of the Act. Section 166 deals with application for grant of compensation. Section 166, Sub-section (4) prior to its amendment in 1994 was as follow:
(4) Where a police officer has filed a copy of the report regarding an accident to a Claims Tribunal under this Act, the Claims Tribunal may, if it thinks necessary so to do, treat the report as if it were an application for compensation under this Act.
After its amendment by Act 54 of 1994, the said Sub-section is as follow:
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act.
16. A perusal of the provisions of the Act thus clearly shows that it is not even necessary that a claim petition should be filed before the court. It is the duty of the police officer or the officer-in-charge of the police station to forward a report regarding the accident to the Claims Tribunal concerned. Prior to its amendment in 1994, the Tribunal, where it thought it necessary, could treat such a report as an application for grant of compensation. But after the amendment of 1994 it is mandatory for the Claims Tribunal to treat this report as an application for grant of the compensation. This clearly shows that the intention of the legislature was that the claimants are not bound by the strict rules of pleadings. Even otherwise the Tribunal has to conduct an inquiry which should not be put in the straitjacket which binds the civil courts. It is true that under the H.P. Motor Vehicles Rules, 1999, a form of claim petition has been prescribed. Thus when a claimant himself files a claim petition before Tribunal, it is expected that his claim petition should be in accordance with these rules. However, the pleadings in such matters are to be considered liberally and not strictly.
17. Mr. S. Kuthiala has relied upon a judgment of this Court in Gayatri Devi v. Tani Ram , to contend that the application for compensation must contain the plea of negligence. In view of the amendment in the Motor Vehicles Act, 1988 and the amendment made to it in 1994, this judgment has to be read in the context of Motor Vehicles Act, 1939 alone. The provisions of law have undergone a sea-change. Under the Motor Vehicles Act of 1988, as discussed above, even a report by the police officer can be treated as a claim petition. Therefore, the strict rules of pleadings cannot be applied to proceedings under the Motor Vehicles Act, 1988.
18. No doubt it is true that in the claim petition filed by legal representatives of Kamal Dev, the allegations of negligence are totally against the driver of the bus. There are no allegations against the scooter driver. However, the scooter driver has been made a party and in the relief clause it has been prayed that compensation be awarded to the claimants from the respondents. One cannot lose sight of the fact that the claimants are the heirs of the deceased. They were not present at the site of the accident. They have no personal knowledge with regard to the accident and are not aware as to how the accident happened. They only came to know about the accident from somebody else. In all probability, they relied on the version given by Gurdial Singh who himself claims to be a friend of the deceased. One other important fact is, that in this case, Gurdial Singh is not prejudiced because no allegations were made against him. This is because he was a respondent in the claim petition. He knew the stand taken by H.R.T.C. More important is the fact that Gurdial Singh had himself filed a claim petition against the H.R.T.C. In this claim petition he pleaded and was bound to prove the negligence of H.R.T.C. Therefore, the question of contributory negligence on his part would also arise and the entire circumstances with regard to the cause of the accident had to be proved by the parties. Gurdial Singh was fully aware that it was alleged that he was driving the scooter. A conjoint reading of the issues framed in both cases clearly shows that all the parties were aware of the dispute involved. Evidence has been led by both the parties with regard to the accident. Gurdial Singh was aware of the case set up by all the parties and he cannot be said to have been prejudiced in any manner.
19. There are three persons who are alleged to be at the site of the accident when the same happened. One is Gurdial Singh, second is the driver Sukhdev of the H.R.T.C. bus and the third is Mehanga Singh, PW 4. Mehanga Singh, PW 4, can be said to be an independent witness in the case and, therefore, his evidence acquires greater relevance. He is not known to any of the parties and has no axe to grind. In his statement Mehanga Singh has stated that he had boarded bus No. HIK 2029 at Una for his village Bhadsali. When they were on the Jhalera Bridge, he saw a rehra (cart) coming from opposite side and there was a scooter behind the cart which was being driven by Sikh gentleman. According to him, the back side of the bus struck against the scooter. After the accident the bus stopped at a distance of 50 yards. He along with other passengers got down from the bus. The injured Sikh gentleman was crying in pain. He requested that he be given water. This witness states that water was given to the Sikh gentleman but the other person who was clean-shaven had expired. Thereafter this witness got on the bus and went away. In cross-examination by respondent Nos. 1 to 3, he has denied the suggestion that he was not travelling in the bus. He has clearly stated that the bus started from Una at 6.30 p.m. and crossed Jhalera barrier at 6.35 p.m. and no entry was made at Jhalera barrier. He admits that he has not seen the accident but has based his statement about the accident on the loud noise he heard and on this basis he inferred that the scooter had hit the bus. He also stated that the bus, scooter and the cart were travelling on their respective correct side. He states that he did not inform the police about the accident. However, he had talked to one Ajmer Singh, a policeman, who is his neighbourer, about the accident on the same day itself. Thereafter the police officials had come to his house after about 20 days when he made a statement to the police. He has unequivocally and clearly reiterated that the scooter was being driven by the Sikh gentleman and not by the other person.
20. Gurdial Singh has appeared as RW 2 (both as petitioner in his claim petition and as respondent No. 4 in claim petition of Asha Rani since the matter was consolidated). He has admitted that scooter belongs to his son. He also admitted that the scooter was not insured. He states that Kamal Dev was his close friend and was driving the scooter and he (Gurdial Singh) was sitting as pillion rider. They went to Dharampur to deliver some official message to Deputy Forest Ranger from Polian. At that time Kamal Dev was driving the scooter. According to him it was the bus driver who after crossing the rehra (cart) swerved towards the right side and caused accident. He has stated that he remained in hospital at Una for one day and thereafter he shifted to P.G.I, but could not be admitted in P.G.I, and, therefore, got treatment in private hospital. He claims to have spent Rs. 85,000 on his treatment. In the cross-examination it is admitted by him that a criminal case for rash and negligent driving is pending against him in court. He also admitted that normally it is he who used to drive the scooter of his son. He has given the age of his son as 22 years at the time of making his statement in 1994. The scooter was purchased in 1984. This shows that scooter was purchased when his son was only 12 years old. Therefore, for all intents and purposes it is the father who had purchased the scooter in the name of his son.
21. The driver of the bus has appeared as RW 7. He states that he left Una bus stand at 6.30 p.m. and when he reached Jhalera Bridge a lot of people had collected there and there was one dead body lying there. He states that no accident had occurred with his bus. He also admits that his bus had been taken into possession on 30.12.1994 and he is also an accused in a criminal case arising out of the accident.
22. Gurdial Singh has also examined one witness Dhanpat Rai, RW 3, to prove that Kamal Dev was driving the scooter when they met this witness at Dharampur. H.R.T.C. has also examined Mr. Y.K. Pathak, Advocate, Una. He, in his statement has stated that he had made a report which was published in Punjab Kesari newspaper on 10.10.1993 and the report is Exh. RW 4/A. This witness is the counsel for petitioners. In the petition, the case set up is that the accident had occurred with the bus, whereas in the report made by this advocate as a newspaper correspondent, it is mentioned that the accident had taken place with a truck. No value can be attached to this report since this is not a report of an eyewitness. On what basis this report has been made, is not explained. However, the conduct of the counsel appearing as a witness to say the least is astonishing. He was counsel for the petitioner and was also summoned as a witness by the respondent. Propriety demanded that he should have withdrawn from the petition. His evidence could have harmed the claimants. He being the claimants’ counsel has appeared as a witness for the respondents. In such a situation, there was nobody who could have cross-examined him. The Bar Council of India in pursuance to the powers vested in it by the Advocates Act, 1961 has framed the Rules known as Bar Council of India Rules, 1975. Part 6 of these Rules govern advocates. Chapter II of Part 6 lays down the standard of conduct and etiquette required of advocates. Rule 13 of Section 2 of Chapter II reads as follows:
An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardizing his client’s interests.
A perusal of this rule clearly shows that even when an advocate has reason to believe that he may be summoned as a witness in a case, he should not accept the brief. In the present case, the counsel has appeared as a witness that too for the opposite side and did not think it fit to withdraw from the case. This was improper and not expected of a counsel.
23. The question as to how and in what circumstances the accident happened has to be decided on the basis of the evidence discussed above. The evidence is rather scanty. It is now well settled law that there are certain cases where it is impossible for the claimants to prove the manner and nature of the accident. The Apex Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), has held that normally it is for the plaintiff to prove negligence but as 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 plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant.
24. In this case from the statements of Mehanga Singh and Gurdial Singh, it is proved that an accident did happen. The next question which arises is whether the accident occurred with the bus of H.R.T.C. or not and whose negligence resulted in the accident. The best persons to depose with regard to this were Gurdial Singh the driver of the scooter and Sukhdev, driver of H.R.T.C. bus. Gurdial Singh has taken up the plea that he was not the driver of the scooter but in fact was the pillion rider. This statement on the face of it appears to be false. He was the owner of the scooter. He was father of the owner of the scooter and as discussed above, he himself had purchased the scooter when his son was only 12 years old. He was virtually the owner of the scooter. Normally, it is the owner who drives his vehicle. Mehanga Singh clearly states that the scooter was being driven by a Sikh gentleman. This statement has not been disproved at all. He has been categorical and unequivocal in stating this fact. Admittedly, Kamal Dev, deceased, the other occupant of the scooter, was not a Sikh. Therefore, the only conclusion is that Gurdial Singh was driving the scooter.
25. The statement of Mehanga Singh has a ring of truth about it. He has given the correct version of the accident. He has clearly stated that he has not actually seen the accident, since it was the rear portion of the bus which hit the scooter. He has also stated that he has presumed that the scooter hit the bus since he had heard the noise.
26. The bus driver could have been the other person who could have given the correct version with regard to the accident. He is in a mode of total denial. He has feigned ignorance about the accident. According to him the scooter never hit the bus and when he reached the bridge the accident had already occurred and a dead body was lying there. Mehanga Singh’s statement to the effect that he had boarded the bus at 6.30 p.m. and that it crossed the Jhalera barrier at 6.35 p.m. and that no entry was made at Jhalera toll tax barrier has been in fact supported by driver of the bus. These facts would have been known only to a person who was travelling in the bus. Therefore, it is held that Mehanga Singh was travelling in the bus.
27. The fact that the driver of the bus has totally denied the accident shows that he is not telling the truth. Therefore, both the scooter driver and the bus driver are not telling the truth. The accident had occurred on a straight road on a bridge. Two vehicles can admittedly cross each other on the bridge. The accident had occurred and the reasons of accident have not been truthfully explained either by the driver of the scooter or by the bus driver. A criminal case is pending against both. An adverse inference can be drawn against both of them. Keeping in view all the above facts and circumstances, I am of the considered opinion that both the scooter driver as well as the bus driver have to be held jointly liable with regard to the accident and their liability is fixed at 50:50.
28. Mr. S. Kuthiala has relied upon a judgment in Babu Singh v. Champa Devi 1974 ACJ 168 (Allahabad). Para 11 of the said judgment reads as follows:
Section 110-A of the Motor Vehicles Act lays down the procedure for an application for compensation. While there is nothing in the form which requires that the allegation of negligence should be stated but under the ordinary law of Torts the liability can only be fastened if it is proved that the person against whom compensation is claimed was negligent and under the general rule of pleading and principles of natural justice it is essential that negligence should be pleaded or facts constituting the negligence may be pleaded in order to enable the court to determine whether the facts constitute negligence or not. It is also now the well-established rule that where parties have gone to trial after understanding the whole case and have led evidence they cannot be permitted to deny the liability on the pretext that the particular fact was not pleaded.
This judgment in fact supports the other side. Where the parties are well aware of the case then in appeal they cannot say that they have been prejudiced and denied the opportunity to lead evidence. In this case, Gurdial Singh was himself claimant in one case. Both the petitions were consolidated and it was his duty to prove the negligence of the bus driver. He was well aware of the case set up by claimants in the other claim petition and by the owner and driver of the bus. No prejudice has been caused to him.
29. Now coming to the question of quantum in Asha Rani’s case. Deceased was working as S.D.O. (Civil) in the Forest Department. His salary has been proved by PW 3 who has proved on record the pay certificate, Exh. PW 3/A. His gross salary was Rs. 6,728. The Claims Tribunal even while dismissing the claim petition has assessed the quantum of compensation. It has held the dependency at Rs. 5,384 per month or Rs. 64,608 per annum. The age of the deceased was 50 and by applying the multiplier of 7, the compensation has been assessed at Rs. 4,52,256.
30. The salary taken at Rs. 6,728 is the gross salary and no income tax has been deducted out of it. Certain deductions from the salary of a government servant like house rent and advances, etc., are also required to be deducted. Therefore, the gross salary cannot be the basis for assessing compensation. The multiplier used is on the lower side, but one has to take into consideration the fact that the children of the deceased were in their final stages of college and, therefore, they would not have been dependent on him for a long time. The multiplier is on the lower side but the datum figure is taken on the higher side. The net result would remain the same. Therefore, compensation of Rs. 4,52,256 assessed is just and reasonable. Claimants are also entitled to interest at the rate of 9 per cent per annum on this amount from 30.12.1993, i.e., the date of institution of their claim petition till the deposit of the amount.
The amount shall be paid to the claimants as under:
(1) Asha Rani (widow) Rs. 3,00,000
(2) Anjana Sharma
(daughter) Rs. 50,000
(3) Rajesh Kumar Rs. 50,000
(4) Swasthika
(granddaughter) Rs. 52,256
______________
Total Rs. 4,52,256
______________
Compensation for Gurdial Singh:
31. The only evidence led by Gurdial Singh is that of RW 1 Dr. Gian Inder Dev who states that he had examined Gurdial Singh on 8.10.1993 and had found certain injuries as per M.L.C., Exh. R1. Exh. R1 shows that the claimant Gurdial Singh had suffered only one grievous injury which was a fracture of a clavicle. There was also fracture of two ribs. In the statement made in the court, the doctor has stated that two injuries were grievous without mentioning which are these two injuries. There is no disability certificate proved on the record. The claimant Gurdial Singh states that he went to P.G.I, but could not get admission in P.G.I. There is no evidence in this regard and no record of P.G.I, has been produced by Gurdial Singh. Thereafter, he produced certain bills of private hospitals at Chandigarh and one bill of P.G.I, for Rs. 275. The prescription slip, Exh. RW 2/A14 shows that he has been operated on 14.10.1993 but this operation is of the urinary region and this is not relatable to the injuries received by him in the accident as mentioned in the M.L.C. The claimant is a government servant. Why he has not taken reimbursement of the medicines has not been explained by him. The injuries suffered by him were not of such a serious nature that he required hospitalization. In fact, there is not even a single document to show that he was admitted in the hospital. Various documents from Exh. RW 2/A1 to Exh. RW 2/A36 have not been directly related to the accident since no doctor has been examined to show that the treatment was for the injuries caused in the accident. Even otherwise total bills produced are for less than Rs. 10,000. There is no disability to the claimant and he continues to be in government service. Considering the fact that he has suffered some injuries including the fracture of clavicle and ribs and remained under treatment for about ten days he has to be awarded some amount for pain and agony suffered by him and loss of wages during the period he was under treatment and the cost of the treatment and attendant, etc. In this case not much evidence has been led other than the statement of claimant himself. Therefore, it would be a fit case to award a global sum which in the facts and circumstances of the case is assessed to be Rs. 30,000. Since the claimant Gurdial Singh has been held guilty of contributory negligence he is only entitled to get Rs. 15,000 from H.R.T.C. He is also entitled to interest at the rate of 9 per cent per annum on this amount from 19.2.1994 till the date of deposit/payment.
C.M.P. Nos. 209 and 210 of 1996 in F.A.O. No. 221 of 1995:
32. The applications for amendment and impleading of parties are not allowed in view of the fact that the same will unnecessarily delay the matter at this stage. In case these applications are allowed then it shall open the entire case for re-trial. Both the applications are dismissed.
33. Thus the H.R.T.C. is liable to pay Rs. 2,26,128 plus interest in the case of Asha Rani and Rs. 15,000 plus interest in case of Gurdial Singh. Gurdial Singh is also liable to pay a sum of Rs. 2,26,128 in the case of Asha Rani. Therefore, interest of justice demands that H.R.T.C. shall deposit the entire amount payable in both the cases, i.e., Rs. 2,41,128 along with interest in case of Asha Rani. H.R.T.C. is directed to deposit this amount of Rs. 2,41,128 along with interest within eight weeks from today, failing which it shall be liable to pay interest at the rate of 12 per cent per annum w.e.f. today. On deposit of this amount, the award in the case of Gurdial Singh, i.e., F.A.O. No. 182 of 1995 shall be deemed to be satisfied. Gurdial Singh is directed to deposit the balance amount of Rs. 2,11,128 along with up to date interest within eight weeks from today, failing which he shall be liable to pay interest at the rate of 12 per cent per annum w.e.f. today.
34. Appeals are allowed in the aforesaid terms. The award of the Claims Tribunal dated 3.12.1993 in M.A.C. Petition Nos. 60 of 1993 and 26 of 1994 is set aside and compensation awarded as aforesaid. No order as to costs.