JUDGMENT
S. Samvatsar, J.
1. This appeal is filed by the claimants challenging award dated 30.7.1997 passed by the Fifth Motor Accident Claims Tribunal, Gwalior in Case No. 48/91, whereby the claim petition filed by the present appellants for death of Vidhyaram, who was aged between 45 to 50 years old.
2. The brief facts of the case are that Vidhyaram was travelling on a scooter bearing No. DIH 8072 along with one Babu Ram. When they reached near Lashkar, Gwalior, the scooter driven by Ram Prakash dashed against a tractor bearing No. MIH 06926, which has resulted into death of deceased Vidhyaram. The claimants, who are the wife and five children of the deceased have filed claim petition. The Claims Tribunal after recording evidence found that the accident in question is not found proved, as claimants have not examined any eye-witnesses. The witnesses examined by the claimants i.e., RW. 1 Ramwati wife of the deceased and RW. 2 Kedar Singh are not the eye-witnesses of the accident, therefore, accident is not proved. The Tribunal has also observed that though the claimants have filed a copy of FIR, but the FIR is not proved by the examining person who lodged the FIR nor by examining the Police Officer, who has recorded the FIR and therefore, dismissed the claim petition.
3. After perusing the impugned judgment and evidence, I find that while dismissing the claim petition Claims Tribunal has over looked the written statements filed by respondent Nos. 1 and 2 driver and owner of the vehicle. In para 1 of the claim petition, appellants have given description of the accident and in the reply respondent Nos. 1 and 2 have stated that accident was caused due to negligence of the scooter driver. Thus, the fact of the accident is admitted by the driver and owner of the vehicle. In such circumstances, the Claims Tribunal has committed an error in holding that accident is not found proved. Claims Tribunal in para 17 of its judgement has given a finding that the deceased was carrying business of agricultural operation and buffaloes and his yearly income was Rs. 18,000/- per year. After perusing the record, I find that this finding does not call for any interference. The age of the deceased was 45-50 years. In such circumstances, the multiply of 13 will be applicable, as the income of the deceased was Rs. 18,000/- per annum. The yearly dependency comes to Rs. 12,000/- per annum and after applying of 13, the compensation comes to Rs. 1,56,000/- plus Rs. 10,000/- towards funeral and others expenses including consortium. Thus, the appellants are entitled for compensation of Rs. 1,66,000/-.
4. The contention of learned Counsel for the respondents is that as the appellants have failed to prove the negligence of the driver, appellants are not entitled to any compensation for this purpose, learned Counsel for the respondents has relied on judgment in the case of Calcutta State Transport Corporation v. Lakshmi Rani Pal and Ors. 1977 ACJ 395 but that was the case of suicide. In the present case, defendant has raised a plea that accident has occurred due to negligence of the deceased, but from the evidence it has come on record that deceased was pillion rider. In such circumstances, question of his negligence does not arise. Moreover, it is for the respondent in the present case to prove negligence, as once the accident is admitted the principle of res ipsa loquitur will come into play and the onus of proving negligence will shift on the respondents and in the present case respondent has not led any evidence to prove the negligence of the deceased.
5. Learned Counsel for the respondent has also relied on judgment in the case of Ashok Kumar Gupta v. Kishanlal and Ors. . In that case, this Court had held that in absence of trustworthy evidence, compensation cannot be awarded, this is not a situation in the present case. He has also relied on judgment in the case Ramnath v. Prasanna Kumar Jain and Ors. . In that case, Court has held that in case the claimants fail to prove negligence, then claimants are not entitled for compensation, this is not a situation in the present case. In such circumstances, the arguments advanced by learned Counsel for the respondent are without any merit and same cannot be accepted.
6. In the result, appeal succeeds and is allowed. Impugned judgment of the Tribunal is hereby set aside. Appellants are entitled to Rs. 1,66,000/- as compensation with interest at the rate of 7% per annum from the date of application.
7. In the facts and circumstances of the case, appeal stands allowed with costs. Counsel fee at Rs. 1,000/-.