JUDGMENT
P.C. Verma, Actg. C.J. and Rajesh Tandon, J.
1. Heard Mr. Narain Singh Negi, learned counsel for the appellants, Mr. D.K. Sharma, learned counsel for respondent No. 1 and Mr. R. Dobhal, learned counsel for respondent Nos. 2, 3 and 4.
2. The present appeal from the order has been filed by the appellants against the judgment and award dated 15.5.1996 passed by District Judge/Chairman, Motor Accidents Claims Tribunal, Uttarkashi in Motor Accident Claim Petition No. 35 of 1993 whereby the Claims Tribunal has dismissed the claim petition filed by the claimants.
3. Brief facts of the case giving rise to the present appeal are that claimant No. 1 is the wife of the deceased Surbir Chand and claimant No. 2 is his minor daughter and claimant Nos. 3 and 4 are father and mother of the deceased. According to the case of claimants, on 10.11.1993, Surbir Chand, the deceased boarded the taxi No. UMX 441 at Matali for coming to Uttarkashi. The vehicle was being driven rashly and negligently by its driver due to which the vehicle met with an accident near Barethi and rolled into river Bhagirathi. The deceased received fatal injuries in the accident and succumbed to injuries instantaneously. Deceased was 32 years of age at the time of accident. He was a registered contractor in Public Works Department, Jal Nigam and Irrigation Department and was earning Rs. 6,000 per month. The claimants-appellants claimed compensation of Rs. 17,50,000 for pecuniary loss, loss of consortium, shock and injury and for funeral expenses.
4. The opposite party, i.e., New India Assurance Co. Ltd. contested the claim petition and filed written statement. The opposite party contended that at the time of accident there were eight persons travelling on the vehicle in question. The driver of the vehicle flouted terms and conditions of the insurance policy. The opposite party also alleged that the compensation claimed is excessive and exaggerated and deceased had no source of income.
5. On the pleadings of the parties, following three issues were framed by the Motor Accidents Claims Tribunal, Uttarkashi:
(1) Whether the accident took place due to rash and negligent driving by the driver of the vehicle in question?
(2) Whether the driver and owner of the vehicle in question violated the terms and conditions of the insurance policy? If so, its effect?
(3) To what amount of compensation are the petitioners entitled?
6. The Claims Tribunal while deciding the issue No. 1 has recorded a finding that the driver of the vehicle was also the owner of the vehicle and he too died in this accident and, therefore, he could not be made party and the version of the driver was not possible. However, inference may be drawn about the rash and negligent driving because the vehicle rolled down into the river directly without any obstruction.
7. From the side of the claimants one Khushal Chand Ramola, PW 2 was examined. PW 2 was the only person who came out safely from this accident without any injury. He has stated on oath that the driver of the vehicle was driving the vehicle very fast due to which it rolled down into the river.
8. Accordingly, the Claims Tribunal has decided the issue with a finding that there is nothing against this version of PW 2 and, therefore, it is proved that the accident was caused due to rash and negligent driving of the vehicle.
9. The Claims Tribunal while deciding issue Nos. 2 and 3 which are interconnected has recorded a finding that the claimants are the wife, daughter and parents of the deceased. They are natural heirs and the claimants are entirely dependent on the income of the deceased and there was no other source of earning and it was proved that the claimants are legal representatives and dependants of the deceased.
10. The opposite party New India Assurance Co. Ltd. has contended that the driver of the vehicle was also the owner of the vehicle and for the fault of driver the owner was responsible and because the owner also died and his legal heirs were not brought on record the claimants could not get compensation in this case from the owner. The insurance company has further contended that the company is not liable to pay compensation because the vehicle was insured only for four persons and the driver. In this case, the company has already paid compensation to the four persons where the cases have been decided against the company.
11. It has also been stated by the insurance company that the driver-cum-owner committed breach of the provisions of insurance policy, hence the insurance company is not responsible to pay compensation. The insurance company has filed the insurance policy to show that the vehicle was insured for four persons and the driver. The opposite party has also filed copies of judgment of M.A.C.T. cases, which were decided against it.
12. The Claims Tribunal decided this finding in favour of insurance company and against the claimants and dismissed the claim petition filed by the claimants on the above grounds.
13. We have perused the evidence on record. The accident was admitted by opposite party No. 1. The burden to prove this fact that the vehicle was overloaded was upon the insurance company. Even assuming that there were eight persons in the vehicle at the time of accident, the insurance company cannot escape its liability as there was no evidence on record that the accident took place on account of overloading.
14. The maxim res ipsa loquitur has been considered by the Supreme Court in a number of cases. Ordinarily, mere proof that an event or accident, the cause of which is unknown, has happened is no proof of negligence. The maxim applies to cases where the peculiar circumstances constituting the event or accident proclaim that the negligence of somebody is the cause of the event or accident. In the first place, the event or accident must be of a kind which does not happen in the ordinary course of things, if those who have management and control, use due care; secondly, it must also be shown that the event or thing which caused the accident was within the defendant’s control. The finding of the Claims Tribunal, therefore, can be justified.
15. So far as the amount of compensation is concerned, the claimant No. 1 is the widow of the deceased, claimant No. 2 is his minor daughter and claimant Nos. 3 and 4 are his parents. The deceased was aged about 32 years. The deceased used to earn Rs. 6,000 per month but no proof thereof was submitted in this regard. If the monthly income of the deceased be taken at Rs. 2,000, it will come to Rs. 24,000 per year. Out of this sum of Rs. 24,000, he would have spent 2/3rd on maintenance of his family, which comes to Rs. 16,000. After applying the multiplier of 15 to this amount the sum of Rs. 2,40,000 finally arrives as compensation for maintenance of the family of the deceased. A sum of Rs. 10,000 can also be awarded on account of loss of love and affection and loss of consortium.
16. Considering the entire facts and circumstances of the case, a total sum of Rs. 2,50,000 will meet the ends of justice.
17. Therefore, we allow the appeal and set aside the order dated 15.5.1996 passed by the Motor Accidents Claims Tribunal, Uttarkashi. The opposite party No. 1 is directed to pay the sum of Rs. 2,50,000 (rupees two lakh fifty thousand only) as compensation to the appellants.