JUDGMENT
S. Samvatsar, J.
1. This appeal is filed by the claimant challenging the award dated 7.9.1999 passed by Eighth Member Judge, Motor Accident Claims Tribunal, Gwalior in Claim Case No. 2/96 whereby the Claims Tribunal has dismissed the claim petition filed by the present appellants on the ground that the claimants have failed to prove that the accident has taken place with the car bearing number HYK 1, which was owned by respondent No. 2, driven by respondent No. 1 and insured by respondent No. 3.
2. Brief facts of the case are that appellant No. 1 is the widow of deceased Babulal Batham and appellants 2 and 3 are his daughters. They filed a claim petition alleging that on 5.8.1995 at about 12.00 in the noon deceased Babulal Batham, a handcart-puller was taking his cart on the railway bridge near the University. In the cart, he was carrying a Fridge. At that time, respondent No. 1 who was driving the car dashed against him from the back side which caused him injuries due to which he died.
3. Respondents have filed their written statement denying the allegations made in the application.
4. The Claims Tribunal after recording evidence and appreciating the same held that the claimants have failed to prove that the accident has taken place with car No. HYK 1 and consequently dismissed the claim petition. Hence, this appeal.
5. Mr. S.S. Bansal, learned Counsel for the appellants submitted that the findings arrived at by the Claims Tribunal are perverse and deserve to be set aside while Mr. M.P. Agrawal, learned Counsel for the respondents supported the award.
6. To appreciate the arguments of the parties, it is necessary for this Court to refer to the evidence.
7. To prove the accident, claimants have examined V.D. Sharma (AW 2) who is an eye-witness. In para 1 of his statement, he has stated that on the date of the accident at about 12.30 in the afternoon, he has seen the car HYK 1 and he has seen the car dashing the cart from the back side. He further stated that he knew the injured. He was going in front of AG office on the slope of the bridge. The car was coming from the side of AG office and was going towards University. While crossing the bridge, the car dashed against the cart-puller. Fridge which was carried in the cart fell down and Babulal, cart-puller also got injuries. He became unconscious on the spot and was taken to the hospital. He died due to the injuries sustained by him. He says that he was knowing the injured. His name was Babulal. He further says in his cross-examination that he was knowing the deceased from the year 1987-88. He was distantly related to him. He further says that in para 7 that the car was Contessa car and he has noted the number in his diary. At the time of the accident, he was coming from Morar and he has seen the accident. Cart-puller was on the slope and the car dashed him from the back side. In para 8, he says that after the accident he did not stop as he has some urgent work. But he informed the fact of accident to his brother Gopal on telephone. Number of persons were collected there and he left the spot. In para 9 he admitted that he has not lodged the FIR as his child was lying. His statement was recorded by the Police in which he has stated that colour of the Contessa car was white. This witness is disbelieved by the Claims Tribunal on the ground that even if this witness was knowing the deceased he did not stop on the spot to help him, nor he went to the police station for lodging the FIR.
8. Other evidence which is on record is the statement of Aditya Shukla (NA W 1). He is the Senior Personnel Officer with respondent No. 2. In para 1 of his statement, he has denied that the accident has taken place with the car owned by respondent No. 2. He further says that the car HYK 1 was registered in the name of the Managing Director of the respondent No. 2 who was at Delhi. The car was recovered from Delhi and the car was Contessa car. He has further stated that the respondents are falsely implicated in the case. He further says that the car which was seized was bearingNo. CAH 01 7333 which is the permanent number. But he does not know the temporary number.
9. Thus from his statement-in-chief, it is clear that the car No. HYK 1 was owned by Jamuna Auto Limited, respondent No. 2. It was a Contessa car and the number of the car was changed after the accident. In para 3 of his statement, he has denied that on the date of the accident, the car was at Gwalior and in para 5 of his statement he has admitted that Ipsurance Company No. 1 possessed two cars at further admits that respondent No. 2 possessed two cars at Gwalior one is Maruty MP 07 1733 and Maruti DL 3C6155. He further admits that respondent No. 2 maintains the log book but log book is not produced. Log book is in possession of Balwant Singh. But the said Balwant Singh is also not examined. He further says that he does not know the name of the driver but he further admits that one Jaipalsingh (respondent No. 1) is the driver in ,the company. He admits that on 5.8.1995 at about 12.30 in the noon he was at Malanpur. He further says that he does not know that on 4.8.1995 at about 12.30 in the noon he was at Malanpur. He further says that he does not know that on 4.8.1995 at about 12.30 in the noon the car owned by the company caused injuries to Babulal as he was at Malanpur factory.
This witness further says that he does not known whether Jaipalsingh is facing any trial for causing the injuries by the car No. HYK 1. He has denied the suggestion that the said car was at Gwalior on the date of the accident. He further says that a Goyal Motors is at Harishankarpuram at Gwalior. He does not know the owner of the Goyal Motors. The car was parked in the house of Goyal Motors on 10.8.1995 after the accident. He admits that the car was parked at the Goyal Motors. He further says that it was parked for repairing purpose. He further says that he does not know the old number of the car CH 01 7333. He says that the registration book is with the company. But the same is not produced.
10. Another important evidence in the matter is the certified copy of the order dated 4.9.1995 passed by Judicial Magistrate, First Class, Gwalior in a Criminal case. Said order sheet is dated 4.9.1995 by which application filed by respondent No. 2 M/s. Jamuna Auto Industries for taking the vehicle car which was seized by the police in Supurdgi. Said application was moved for taking the car No. CH 01 3070 in Supurdgi. In the said order, the Court has observed that on 29.8.1995 the car was seized, On the date of the accident, number of the car was HYK 1 which was changed subsequently. Without going into the details of the said order, it is clear that the vehicle owned by respondent No. 2 was seized by the police in connection with the accident. Jaipalsingh was admittedly the driver with respondent No. 1. But he did not step in the witness box to deny the accident.
11. Thus, all these facts clearly prove that the car owned by respondent No. 2 was seized by the police in connection with the accident. Number plate of the car was changed after the accident. Driver did not step into the witness box. Log book or registration papers of the car were not produced by respondent No. 2. Thus, they have withheld the best evidence available with them. In such circumstances, we hold that the finding arrived at by the Claims Tribunal that the accident is not proved cannot be sustained and is set aside.
12. As regards quantum is concerned, it has come on record that deceased was 56 years of age. He was a handcart-puller. Income of the deceased as per the claimants is Rs. 4,000 per month. But this appears to be on very high side. A cart puller cannot earn such an amount and his income can safely be assessed at Rs. 2,500 per month. Thus, his yearly income comes to Rs. 30,000 and dependency is worked out at Rs. 20,000 per year. As his age was 56 years multiplier of 8 will be applicable and on applying the multiplier of 8, the compensation is assessed at Rs. 1,60,000. Claimants are also entitled to a sum of Rs. 20,000 over and above this amount towards loss of estate, funeral expenses, etc. and the compensation is enhanced to Rs. 1,80,000 (Rs. one lac eighty thousand). Claimants shall also be entitled to interest at the rate of six percent per annum from the date of filing of the claim petition. The respondents are jointly and severally responsible to settle the award.
13. Appeal succeeds and is allowed with costs quantified at Rs. 2,000 (Rs. two thousand).
