JUDGMENT
Verma, J.
1. This appeal has been filed by the claimants against the award passed by the Motor Accident Claims Tribunal, Karauli in Case No. 107/92 on 14.3.1995, whereby his total claim had been dismissed.
2. It was alleged in the claim application that the deceased Ram Singh was crushed by the driver Gopal Singh son of Birdha Singh on 28.2.1991 by truck No. RJD 8575. But lateron application was moved for amendment of the claim application to the effect that the parties had come to know that the truck was being driven by one Kirori Mal and not by Gopal Singh , and, therefore, Kirori Mal was also made party. The deceased was said to be of 18 years of age and his income was alleged to Rs. 3,000/-p.m. The claim was filed by the parents and the younger brother and wife aged only 12 years at the time of filing of the claim i.e. she was minor and the claim had been filed through her father in law. The defence was taken in the written statement that even according to the FIR the name of the driver had been mentioned as Kirori and not Gopal Singh. As per investigation made by the police, it is stated that Gopal Singh after taking out the key of the truck was sitting away from the, truck when Kirori sat on the driver’s seat and had asked to deceased Ram Singh to help him in starting the truck by opening the bonnet and linking the direct connection and when Ram Singh was standing in front of the truck and trying to start the truck, said Kirori made an effort to start the truck and all of a sudden truck started and not only the engine was put into motion but it also started moving with the result Ram Singh was crushed. It was stated by the respondent that the driver had no valid license and even the owner had no permit when said Kirori was on the steering seat. It was also one of the defence that Ram Singh deceased was as a matter of fact working as a labourer on the truck and, therefore, he should have filed a claim before the Workmen’s Compensation Act and not under the provisions of the Motor Vehicles Act.
3. Kirori had also filed a reply and denied the allegations and had stated that he was a poor man and was doing the work of mining. He had never driven the truck. The driver of the vehicle was Gopal and the present claim application has been filed only to harass him.
4. FIR was also recorded in the police station Karauli being FIR No. 104/91 Under Section 279, 304A 1PC by constable Ram Babu Singh. Investigations were made and it was reported that a crushed man was lying behind the truck. Panchayat Nama was done, post-mortem was done and dead-body was sent for cremation. The claimant is said to have also filed a criminal complaint Under Section 302 IPC against said Kirori son of Bhorya before the Chief Judicial Magistrate, Karauli, wherein it was stated that the real truck driver Gopal Singh after taking the keys of the truck went outside the truck and one Kirori tried to start the truck; the deceased was asked to open the bonnet to give direct current connection to the engine. The wife of the deceased had put up a complaint to the effect that because of the unauthorised act of Kirori her husband had been killed in the accident.
5. Necessary issues were framed. The issues were framed in regard to the fact whether the accident had been caused by the offending truck causing the death of Ramsingh and whether M/s. Gheesaram Nemichand were the owners of the truck and about the quantum of compensation. Statement of Niroti AWI, Halke AW2 and Mohar Bai AW3 were recorded. Copy of the FIR was got exhibited along with other documents and post mortem report, chargesheet, policy of the insurance, statements, permit of the truck, No evidence was produced by the insurance company even though permission was sought for defending the case.
6. On the basis of the statement of Niroti AW1, Halke AW 2 and Mohar Bai AW-3 it was stated that right from the very beginning of the case, the driver of the truck was Gopal Singh, but the police investigation had shown that the accident had been caused by Kirori, against whom the claimants had filed a complaint Under Section 302 IPC. The Tribunal had reached to a finding that on 28.2.1991 Ram Singh had died because of the accident of truck No. RJD 8575, but on the pleadings and evidence had come to the finding that at the lime, Gopal Singh was not the driver and Kirori was sitting on the steering of the truck. Issue Nos. 2 and 3 were decided against the claimants to the effect that Kirori was not driving the truck with the consent of the owner. It was also found on issue No.
4 that Kirori had no driving license and, therefore, whole of the claim application was rejected.
7. Record was called for.
8. I have gone through the record. In para 10-A of the claim application, it is mentioned that the driver of the vehicle at that time was Gopat Singh son of Birdha Singh and Owners name was M/s. Gheesaram Nemichand Mahajan and the vehicle was insured with the New India Insurance Company Ltd. It was mentioned that the death has been caused because of the negligence of the driver. But in para No. 19 in the amended claim application, it has been mentioned that because of the reply filed by the respondents, Kirori was also being made party, basing it only on the written statement of the respondents of original unamended claim application. On the original claim application, the name of the driver was given to be Gopal Singh and that of owner M/s. Gheesaram Nemi Chand.
9. It was the case in the reply filed on behalf of respondent No. 3 which is on record i.e. New India Insurance Company that the insurance company had mentioned that as per the information received by it, the accident had been caused by one Kirori son of Bhurya who had not been made party. Respondent Nos. 1 and 2 in the claim application i.e. driver and the owner have also filed the written statement wherein they have denied the liability. It was stated that Gopal Singh had been wrongly made party. It was stated in the reply that even though Gopal Singh was the driver al the relevant lime, but he had left the truck by taking the keys of the truck with him and was sitting outside near the truck and Kirori was sitting on the seat of me driver and was trying to start the truck which he could not and therefore, the deceased had put the direct line by opening the bonnet as a result of which the truck was put into motion.
10. Kirori in his written statement had totally denied the liability or his involvement.
11. AW-1 Niroti had appeared and stated that the driver of the truck was Gopal Singh and the owner was Ghasiram Nemichand. She stated that her son was earning Rs. 100-200 per day, he was married and the parents, wife and one younger brother were dependent on him. Of course she was not present at the place of the accident and clearly admits that whatever she had stated, was as she was told and had heard from others. The deceased was working in the mines. The deceased was of the age of 18 years and was married at the age of 15 years. His wife was of 12 years of age but even though the marriage had taken place, but the wife had not come to the house as yet. ‘Gauna’ had not been done, meaning thereby the wife was with her parents and had not come to her in-laws as is being done after the ‘Gauna’ ceremony and she was still living there. She admits that she had also flied a complaint against Kirori. She states that it was wrong that the truck was being driven by Kirori or Kirori was the real truck driver.
12. Similar is the statement of AW-2 Halke. He states that he was present at the spot. According to him Gopal Singh was the driver who was driving the truck negligently and rashly and that he had caused the accident, report of which was given to the Police Station Karauli. The accident had occurred at the place Chari-Ka-Har, Bahadarpur. It is stated that there were many other persons in the truck. No fare was paid and truck was loaded with stones.
13. AW-3 Mohar Bai, the wife of the deceased in naturally was not in a position to depose the facts as to how the accident had occurred as admittedly she was at that time in her own house of her parents.
14. No evidence has been produced on behalf of the respondents.
15. Copy of the FIR Ex. 1 has been produced on record which has been got recorded by one Ram Babu Singh against Kirori who had only stated that because of the accident the deceased was lying at the place of accident. Ex.2 is the post mortem
report of decease which shows hat the cause of the death is accident. Ex.1 is the FIR which only shows the factum of accident. Site plan has also been exhibited. Copies of the statements recorded Under Section 161 Cr.P.C. have also been produced before the trial court.
16. From the above narrated facts the following facts are admitted:
(1) that the deceased Ram Singh had died because of the accident; (2) the accident had been caused by the truck No. RJD 8575; (3) the owner of the truck is Gheesaram Nemichand; (4) real driver of the truck was Gopal Singh; (5) the truck was being used for carrying stones; (6) deceased was working in the mines; (7) accident is not denied.
17. The only question which arises for consideration is even in the circumstances as mentioned if Gopal Singh was admitted ‘driver who had a license as well and assuming that he had stationed the truck by taking out keys of the truck with him and was sitting outside the truck and assuming that one Kirori who was not authorised to sit in the truck had actually occupied on the driver’s seat and tried to start the truck and assuming that said Kirori had asked the deceased to open the bonnet and start the truck by making direct line for starting and also assuming to be true that while the deceased was so doing, the truck had started and moved with a jerk crushing the deceased under the wheels; can it be said that the truck driver or the owner of the truck was not responsible for such negligence and of a third party which was being committed in the presence of the truck driver himself? The truck was under the charge of Gopal Singh as driver. He had no business to allow one Kirori to sit in the truck on the driving seat specially when the keys of the truck had also been taken away by him and he was silting outside the truck, it cannot be imagined that such driver would allow a totally untrained labourer to sit on the driver’s seat and even start the truck. It has not come on record that if the keys were with Gopal Singh driver, by what method Kirori was trying to start the truck and even Kirori was sitting on the driving seat and asked the deceased to open the bonnet and make a direct line for starting the loaded truck, why Gopal Singh was waiting and observing it silently and why he did not object? These are the circumstances which throw a doubt on the defence story of the respondents being to defeat the claim of the claimants.
18. Admittedly, the claimants are the poor illiterate labourer lady who even does not know the happenings as she admits that whatever had been told to her, she had so stated. She was not al the spot, however, AW 2 was at the spot who categorically states that the accident was caused while Gopal Singh was driving. In the circumstances mentioned above, the driver of the truck cannot be held to be innocent in sequence of the occurrence which has been narrated above and the owner is liable to pay compensation. The insurance company is also liable to pay compensation. Even if said Kirori was sitting on the driving seat al the time when truck was stationed, so far the owner was concerned, he had only authorised Gopal to drive the truck or sit on the seat of the driver and if such driver had allowed even by his passive action a third party to sit on the driver’s seat; that action would amount to be without consent of the owner of the truck as such insurance company shall also be liable in the circumstances.
19. In my opinion, a clever defence was being made by the respondents to defeat the claim application and unfortunately they were successful in doing so. The Tribunal has also not applied its mind properly, nor appreciated it in a right perspective in accordance with law. Even all the facts as stated are assumed to be correct and are believed as has been held by the Tribunal, the liability of the owner and the driver of the truck and the insurance company could not be exonerated.
20. For the reasons mentioned above, I hold that the accident had been caused because of the sheer negligence of the truck driver owned by Gheesaram Nemichand and insured by the New India Insurance Company Ltd.
COMPENSATION
21. In the post-mortem report, the age of the deceased has been shown as 18 years. He was working as a labourer in the mines. The accident was caused in February 1991. Even though AW-1 had stated that the deceased was earning Rs. 100-200 per day, but taking to be the minimum wages to be Rs. 35/- per day, the total income of the deceased would not be less than Rs. 1,000/- per month in the year 1991 and after deducting one third as expenses on himself, the remaining amount of Rs. G70/- can be said to be the dependency. Even though he was married, but no NATA had been done and his wife at the time was 12 years of age, she was not sent to her in-laws as yet and for the reason that “Nata” ceremony prevailing in the community i.e. a second marriage is permissible, the wife may not be entitled to any compensation at the stage, but the mother, sisters are entitled to.
22. Counsel for the appellant submits that the Supreme Court in the case of Shanti Bai and Ors. v. Charan Singh and Ors. (1), in the case of a 18 years old boy belonging to labour class run over by truck leaving behind his destitute mother and two minor brothers had held that the compensation should not be less than Rs. 1,50,000/- in the circumstances. It was held by the Supreme Court that taking a reasonable view of the amount which the deceased would have earned, have he survived, considering the future economic prospects of the deceased it appeared fit to the award to Rs. 1,50,000/- with interest.
23. For the reasons mentioned above, 1 accept the contention of the learned counsel for the appellant and award the compensation of Rs. 1,50,000/- in addition to Rs. 2,000/- for meeting the expenses of funeral i.e. total amount of Rs. 1,52,000/- which shall bear the interest @ 10% p.a.
24. The misc. appeal is allowed as abovesaid.