JUDGMENT
Deepak Gupta, J.
1. This appeal filed by the claimants is directed against the award of the Motor Accidents Claims Tribunal, Kullu, in Claim Petition No. 39/99, decided on 1.12.2001, whereby the claim petition filed by the claimants has been dismissed.
2. The claimants, who are the parents of deceased Jitender Sharma, filed a claim petition in which it was alleged that the deceased was a pillion rider on a scooter belonging to respondent No. 4 Krishan Gopal Thakur and being driven by his son Jitender Thakur. According to the claimants, there was collision between this scooter and an HRTC bus which was going from Kullu side towards Manali. They averred that the accident had occurred due to the rash and negligent driving of both the driver of the bus as well as the driver of the scooter. As far as the owner and driver of the bus are concerned, their case was that no collision had taken place between the scooter and the bus. As far as respondents No. 4 and 5 are concerned, according to them, the scooter was being driven by the deceased himself and that respondent No. 5 was the pillion rider on the scooter. It was further stated that the accident had taken place due to the rash and negligent act of the driver of the bus in question and that the scooter involved in the accident did belong to respondent No. 4. The learned Tribunal came to the conclusion that the scooter involved in the accident belongs to respondent No, 4. He, however, held that the scooter was being driven by deceased Jitender Sharma and not by Jitender Thakur and came to the conclusion that the claimants had failed to prove that the accident occurred due to the negligence of the bus driver and, therefore, dismissed the claim petition. Hence, the present appeal.
3. I have heard Mr. Neeraj Gupta, learned Counsel appearing for the appellants-claimants, Mr. Ashok Sharma, learned Counsel appearing for the HRTC and Mr. C.B. Singh, learned Counsel appearing for the owner of the scooter and his son.
4. The main question which arises is as to who was driving the scooter at the time of the accident. PW-1 HC Khem Chand has proved FIR No. 255/98 recorded in this case. Certified copy of this FIR is Ex. PW-l/A. A perusal of this FIR shows that the same was recorded at the instance of Jitender Kumar son of Krishan Kumar i.e. respondent No. 5. In this FIR, it is mentioned that he alongwith deceased Jitender Sharma had gone to Haripur to watch a cricket match and thereafter were returning on his scooter. There was sand on the road and the scooter skidded and slipped. One HRTC bus came from the opposite side, however, the bus did not hit them and they had suffered the injuries even before the bus reached them. PW-2 Anil Sethi has proved the fact that respondent No. 4 had purchased a scooter on 15.9.1998 from the Firm where he works. PW-4 is the mother of the deceased. She was not at the spot when the accident occurred. According to her, the deceased used to earn Rs. 4,000/ to Rs. 5,000/- per month during the season by. doing pruning work. She admits that in her house also there is one scooter and this scooter is driven by her younger son Bhupinder Sharma. She states that though deceased Jitender Sharma had a driving licence, he never used to drive a scooter.
5. PW-5 Rewati Devi is the star witness. According to her, she had witnessed the accident. She states that she was taking tea in dhaha of Milap Chand. At that time she saw that the scooter was being driven by Jitender Thakur and deceased Jitender Sharma was sitting behind, and a bus was coming from the opposite side. According to her, the collision took place due to the fault of both the bus driver and the scooter driver. She further states that Jitender Sharma died as the steering of the scooter went into his stomach. Thereafter, Krishan Gopal came to the spot and removed his scooter from there. She states that the scooter did not skid at the spot. In cross-examination, she admitted that there is litigation between her and Krishan Gopal and that relationship between them is strained. She has, however, denied the fact that she is making a false statement. She could not give the number of the bus. However, she states that the bus belongs to ‘Corporation’.
6. PW-6 Milap Chand, owner of the dhaba states that he also witnessed the accident. According to him, PW-5 Rewati was also in his restaurant when the accident occurred. He did not notice who was driving the scooter. He states that the bus was being driven at a high speed and the accident occurred due to the fault of the bus driver. He further states that both the boys were taken to the hospital in a tourist vehicle.
7. RW-1 Pitamber Lal is the driver of the bus. According to him, the scooter skidded when the bus was about 15 feet away and fell into the drain. Thereafter, the injured were sent to the hospital in a private vehicle. He categorically states that there was no accident with his vehicle.
8. Respondent No. 4 Krishan Gopal also appeared in the witness box as RW-2. He states that he came to know about the accident lateron and that his scooter was not involved in the accident and that his son was not driving the scooter.
9. Respondents have also placed on record Ex.RX a certified copy of the order dated 9.6.2000 whereby the JMIC, Manali has cancelled the FIR on the ground that Jitender Sharma, driver of the scooter, died as a result of the injuries sustained in the accident.
10. RW-4 Rewati Devi clearly states that the deceased was the pillion rider at the time of the accident. The scooter was being driven by Jitender Thakur. Her evidence has been disbelieved by the learned Tribunal on the ground that she is inimical to respondent No. 4, father of respondent No. 5. This, in my opinion, is not a sufficient ground for a witness to depose falsely with regard to some other matter in which he/she had nothing to gain. Further more, the conduct of the owner and driver of the scooter, leaves much to be desired. Rewati Devi in her statement had clearly stated that after the accident Krishan Gopal had taken away the scooter. This portion of her statement was not subjected to any cross-examination. Even when Krishan Gopal appeared in the witness box he did not say that he did not take away the scooter from the spot. The most important witness who could have given the correct version was Jitender Thakur. For reasons best known to the respondents he was not produced in the witness box. Mr. C.B. Singh, learned Counsel appearing for the owner and his son, argued that in fact he was not well as is apparent from the statement of RW-2 Krishan Gopal and, therefore, he could not appear in the witness box. This submission cannot be accepted at its face value. There is no material placed on record to show that Jitender Thakur could not appear in Court. In fact, a perusal of Annexure RX shows that he was present in Court alongwith father when the FIR was cancelled on 9.6.2000, If he could be present on the said date why he could not depose in the case where he himself was arrayed as a respondent. The version of these two respondents is also highly inconsistent. In the FIR, Jitender Thakur has stated that the accident occurred because the scooter skidded and there was no collision between his scooter and the bus. However, in reply to the claim petition, it was mentioned that the accident took place due to the rash and negligent act of the driver of the bus in question. Jitender Thakur then did not appear in the witness box to support either of his versions. If he had appeared in the witness box, he could have been contradicted with his statement under Section 154, Cr.P.C. and also his reply to the claim petition. The stand taken by him is obviously false.
11. Mr. C.B. Singh, learned Counsel appearing on behalf of the owner and his son, urged that there is nothing to show that the scooter belonging to Krishan Gopal was involved in the accident or the scooter was being driven by Jitender Thakur. I cannot accept this plea. The Apex Court in Pushpabai Purshottam Udeshi and Ors. v. Ranjit Ginning and Pressing Co. and Anr. 1977 ACJ 343, held as follows:
6. The normal rule is that 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. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The . general purport of the words res ipsa loquitur is that the accident “speaks for itself” or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accidents and nothing more. It will then be for the defendant.to establish that the accident happened due to some other cause than his own negligence… .
12. Even if the case of the owner and driver of the scooter is taken at its best that Rewati Devi is inimical to them and her statement should not be accepted at its face value then it was for Jitender Thakur to steps into the witness box and explain as to how the accident occurred. This he did not do so. Therefore, an adverse inference has to be drawn against him.
13. Another factor winch appears to have weighy with the learned Tribunal is that since the steering of the scooter pierced the abdomen of the deceased, therefore, in all probability it was the deceased who was driving the scooter. According to the learned Tribunal, the steering could not have penetrated the abdomen of the pillion rider. I am afraid, this finding of the learned Tribunal is not correct. Once a scooter skids and both its occupants fall down the steering can hit any one of the riders. It is not necessary that the steering can only hit the driver and not the pillion rider. Keeping in view the above facts, the statement of Rewati Devi and especially drawing an adverse inference against Jitender Thakur for not appearing in the witness box, I hold that at the time of the accident the scooter was being driven by Jitender Thakur and not by deceased Jitender Sharma.
14. The next question which arises is whether the accident occurred due to the negligence of the scooter driver or due to the negligence of the bus driver or of both. As noted above, in the FIR Jitender Thakur himself had got recorded that no accident with the bus had taken place and that he and Jitender Sharma had received injuries even before the bus reached the site of the accident. Therefore, it does not lie in his mouth to now argue that in fact the accident had occurred due to the negligence of the bus driver. The bus driver appearing in the witness box has also stated that no accident with the bus had taken place. In case the bus had been involved in the accident the police would have normally recorded an FIR showing the involvement of the bus. In view of the above circumstances, I hold that the accident had occurred due to the negligence of respondent No. 5 Jitender Thakur. All these facts show that the bus of the HRTC was not Involved in the accident and, therefore, it is only the owner and driver of the scooter i.e. respondents No. 4 and 5 who are liable to pay compensation.
15. With regard to quantum, I find that the deceased was a young man aged about 23 years. He was doing pruning work. Even if his income is taken at Rs. 100/- per day or Rs. 3,000/- per month and the dependency of the mother is taken at Rs. 1,200/- per month, the dependency works out to Rs. 14,400/- per year. The age of the mother was 40 years at the time of the accident and, in my opinion, the reasonable multiplier would be 12. By applying this multiplier, the compensation on account of dependency works out to Rs. 1,72,800/-. In addition thereto, the claimant is entitled to Rs. 7,200/- for funeral expenses and post death ceremony, and she is also entitled to Rs. 10,000/- for conventional damages and Rs. 10,000/- for the loss of love and affection of her son. The total compensation, therefore, works out to Rs. 2,00,000/-. The entire amount shall be paid to mother Sandhya Devi. The claimant is also entitled to interest on this amount @ 9% per annum with effect from 6.10.1999, the date of filing of the claim petition, till deposit of the amount.
16. The appeal is allowed in the aforesaid terms and it is held that deceased Jitender Sharma died due to the rash and negligent driving of respondent No. 5 Jitender Thakur while he was driving the scooter owned by respondent No. 4 and, as such, respondents No. 4 and 5 are held jointly and severally liable to pay compensation of Rs. 2,00,000/- alongwith interest @ 9% per annum with effect from 6.10.1999 till the deposit of the amount. Respondents No. 4 and 5 shall also pay the costs of this appeal to the appellant which are assessed at Rs. 3,000/-.