JUDGMENT
Arun Madan, J.
1. These two cross appeals filed under Section 110-D of the Motor Vehicles Act, 1939 arise out of an Award dated 21.4.1988 passed by Motor Accident Claims Tribunal, Tonk in Motor Accident Claim Petition No. 8/1982; whereby an Award amounting to Rs. 60,000/- has been passed against the appellants and Performa respondent No. 5 in S.B. Civil Miscellaneous Appeal No. 147/88. Appeal No. 147/88 has been filed by State of Rajasthan and Deputy Director Agriculture (Extension) Tonk, against the claimants and the driver for setting aside the Award dated 21.4.1988 and Appeal No. 105/88 has been preferred by driver Bashir Khan against the claimants and the appellants in Appeal No. 147/ 88, for setting aside the above Award. Both these appeals are disposed of by this single judgment, since they arise out of the same Award as indicated above.
2. Brief facts giving rise to these appeals are that a motor accident took place on 3.1.1982 at about 6.15 p.m. involving Jeep No. RJX1894 which was being driven by Bashir Khan Driver, appellant in Appeal No. 105/88, who was at the relevant time in the employment of Director Agriculture, Government of Rajasthan, Jaipur. In the said accident one person Isar son of Mangilal victim of the accident, lost his life. The dependents of the deceased Isar, namely, Mst. Bhooli widow of Mangilal (mother of the deceased), Mst. Prahaladi widow of the deceased, Ramlal and Sohan both minor sons of the deceased under the guardianship of their mother Mst. Prahaladi, filed a claim petition before the Motor Accident Claims Tribunal, Tonk. The claimants claimed an amount of Rs. 1,92,600/- against the State and the driver of the Jeep Bashir Khan. The learned Tribunal after examining ocular as well as the documentary evidence led before it, passed an award on 21.4.1988 whereby a sum of Rs. 60,000/- was awarded in favour of the claimants and against the State and the driver of the Jeep. Aggrieved by the said Award both the above appeals have been filed in this Court as indicated above.
3. The case of the claimants briefly stated, is that on 3.1.1982 at about 6.15 p.m. Isar (deceased) and Ramlal (P.W. 4) were going on their cycles from Bada Kuwa towards Ghantaghar, Tonk. The driver of the jeep came suddenly from the front side driving Jeep No. RJX 1894 so rashly and negligently and by driving the said Jeep towards wrong side, he came close to the cycles driven by Isar and Ramlal and hit the cycle of Isar deceased who as a result of which fell down from the cycle and sustained injuries on his nose and ears which started profusely bleeding. Thereafter Ramlal P.W. 4 lodged a report with the Police Station. A site plan of the place of incident was also prepared by Ramsingh vide Ex. P.2. Dr. V.D. Sharma had medically examined the deceased vide injury report Ex. A.1. The Jeep in question was a Government Jeep belonging to State Agriculture Department viz- office of respondent No. 2, Deputy Director, Agriculture (Extension) Tonk. The victim Isar was rushed to hospital, Jaipur where he succumbed to his injuries. The claim was filed by the dependents of the deceased Isar before Motor Accident Claims Tribunal, Tonk wherein they claimed a sum of Rs. 1,92,600/- towards compensation.
4. The claim petition was contested by the State by denying the negligence of the driver of Jeep in question and by putting the blame on the deceased and Ramlal P.W. 4 by contending that the accident had occurred on account of negligent manner in which the deceased and Ramlal were driving their cycles and not on account of negligence of the jeep driver. It was however, admitted that at the time of accident the jeep in question was Government vehicle belonging to the agriculture Department of the Sate being driven by Bashir Khan driver, which at the time of accident was proceeding for fetching the diesel from his office towards petrol pump. On the fateful day the road was in the state of repairs and half of the road was closed to traffic and the driver of the jeep had stopped the jeep in question prior to the accident. Deceased Isar and his companion Ramlal had lost the balance of their cycles and they were coming on the wrong side and both had collided with each-other and subsequently the deceased had hit the jeep with his cycle from behind and at the time of accident the deceased was smelling of liquor. Basir Khan driver also denied his culpability by contending that the accident had occurred not on account of his negligence but on account of negligence of the deceased and Ramlal P.W. 4 and hence the claim petition deserves dismissal. On the pleadings of the parties the learned Tribunal framed the following issues:
1. Whether the deceased Isar had died as a consequence of the rash and negligent driving of the jeep RJX 1894 which was being driven by Bashir Khan driver ?
2. Whether the claimants are entitled to compensation and if so to what extent?
3. Relief ?
5. With regard to issue No. 1 evidence was tendered on the record by proving the site plan on the basis of which a specific finding has been recorded by learned Tribunal to the effect that the driver Bashir Khan was driving the jeep so rashly and negligently by coming on the wrong side, whereas the deceased and Ramlal P.W. 4 were driving their cycles on the right side on the road and hence it was the driver Bashir Khan who is fully responsible for the said accident which had occurred solely on account of his negligence. The Tribunal has examined in detail the evidence tendered on the record with specific reference to the evidence of P.W. 4 Ramlal who was accompanying the deceased at the time of accident. According to the said witnesses, both the deceased as well as Ramlal P.W. 4 were going on their cycles when a Jeep came from the opposite side and was being driven so rashly and negligently that notwithstanding the fact that both the deceased as well as Ramlal tried to save themselves by going on their left side yet they were hit by the jeep which resulted in injuries on the right ear of the deceased Isar as a result of which his started bleeding. The driver after accident stopped the jeep and after putting Isar deceased in the jeep rushed to the hospital. Subsequently F.I.R. was lodged by Ramlal P.W. 4 with the local police on 3.1.1982, i.e., the date of occurrence itself. The accident was proved by FIR as well as site plan Ex. P.2 prepared by the Investigating Officer. It has been stated by P.W. 4 Ramlal in his cross-examination that the driver of the jeep was driving the jeep on wrong side whereas the deceased and the witness himself were going on their right side on the road and it was as a result of the negligence of the driver who hit the deceased as a consequence of which the deceased sustained injuries on his right ear and evidently it has been proved that Bashir Khan driver of the jeep was responsible for the accident which had occurred on account of his negligence. On the basis of evidence on record, the learned Tribunal recorded finding that in the site plan it is correctly mentioned that the jeep in question after coming from wrong side had hit the deceased which fact is established from the evidence of P.W. 4 Ramlal and the said evidence is plausible. Both on the evidence as well as the findings of the learned Tribunal, it has been thus established on the record that the accident had occurred not on account of the negligence of the deceased and P.W. 4 Ramlal in driving their cycles but on account of the negligence of the driver of the jeep Bashir Khan who was driving the jeep on wrong side on the road as a result of which the victim had succumbed to the injuries received in the accident. The learned Tribunal has further recorded a specific finding to the effect that merely because the deceased was drunk at the time of the accident would not absolve the accused from culpability, since the accident had taken place on account of his negligence.
6. With regard to issue No. 2 the following questions were formulated by the Tribunal for consideration:
1. What was the span of life of the deceased ?
(a) Reasonable expectancy of the life of the legal heirs of the deceased,
(b) Reasonable expectancy of the life of the deceased and his legal heirs.
2. What was the daily, weekly and monthly income of the deceased at the time of his death out of which how much the deceased was spending on himself and how much on his legal heirs and what was the financial loss to the legal heirs as a consequence of the death of the deceased and whether the deceased was spending any special sum on himself ?
7. On the above questions arising out of issue No. 2, learned Tribunal has recorded a finding that the deceased was 30 years of age and would have lived for another 35 years i.e., 65 years had he not met with untimely death. The mother of deceased was 55 years of age and would have lived for another 10 years. On the question of monthly income of the deceased the deposition of the father of the deceased Mangilal P.W. 1 is to the effect that the deceased was having annual income of approximately Rs. 12,000/- and was also doing the labourer’s job in the fields and was having no other occupation. To the same effect is the deposition of P.W. 2 Prahaladi, mother of the deceased. In the absence of any direct evidence regarding the income of the deceased, the learned Tribunal came to the conclusion that the daily earnings of unskilled labourer would be minimum Rs. 14/- and if calculated on that basis monthly income would come to Rs. 400/- approximately. The learned Tribunal has further recorded a finding that out of Rs. 400/- the deceased must be spending atleast Rs. 200/- p.m. on his family members while the remaining amount on himself. With regard to the age of the wife of the deceased, learned Tribunal has recorded a finding that Mst. Prahaladi, wife of the deceased, was 25 years of age as on the date of death of her husband and had been consequently put to a loss of Rs. 200/- per month on account of untimely death of her husband and on the principle of multiplier of age it comes to 25×2400 amounting to Rs. 60,000/- as held by the learned Tribunal. I am of the opinion that learned Tribunal has gone wrong an-applying the multiplier of 25 x 2400 because span of life of the deceased should have been taken as 65 years by calculating age of the deceased the multiplier of 35 should have been applied, since the deceased was 30 years of age on the date of his death and would have lived for another 35 years, i.e., 65 years. Therefore, the multiplier of 200 x 12 x 35 should have been applied by learned Tribunal which comes to Rs. 84,000/-. I am further of the opinion that the claim petition is exaggerated to the extent of Rs. 1,92,600/-, since there is no positive evidence on the record with regard to monthly income of the deceased and the oral evidence of the witnesses does not help the claimants to an increased amount as demanded by them in their claim petition before learned Tribunal.
8. The deceased had apart from two minor children aged 13 and 11 years respectively, wife of the deceased had also conceived a child in the womb and consequently learned Tribunal passed an Award of Rs. 60,000/- out of which I have been informed that a sum of Rs. 30,000/- has already been received by the claimants by way of compensation.
9. On behalf of respondent Nos. 1 to 4 (claimants) cross objections were filed in this Court under Order 41 Rule 22 C.P.C. read with Section 110-D of Motor Vehicles Act for enhancement of compensation of the Award amount to Rs. 1,92,600/- as against the awarded amount of Rs. 60,000/- in terms of Award passed by learned Tribunal on 21.4.1988. During the course of hearing it was contended by Shri N.K. Jain, learned Counsel for claimants, that the Tribunal had committed illegality in multiplying compensation for only 25 times. He has further contended that in the facts and circumstances of the case and also keeping in view the increase in the span of life as of today, reasonable expectancy of life should have been considered to be 65 years and if the same would have been considered by learned Tribunal, then the claimants were entitled to the compensation for 40 years and multiplier of 40 ought to have been applied since the widow of the deceased Mst. Prahaladi was only 25 years of age at the time of the death of the deceased. It has been further contended that learned Tribunal committed illegality in not accepting the income of the deceased to be Rs. 10,000/- to 12,000/- per year inasmuch as from the statement of P.W. 1 Mangilal it was clear that the income of the deceased was about Rs. 12,000/- per annum. On this basis learned Counsel contended that it was a fit case wherein minimum income of the deceased ought to have been considered at Rs. 1000/- per month as per the claim petition the calculation for compensation ought to have been done on the basis that he was infect contributing atleast Rs. 500/- per month on his family. It has been further contended that learned Tribunal has committed illegality in not awarding the interest on the award amount in view of the latest decision of the Apex Court awarding interest at the rate of Rs. 12% per annum from the date of claim petition till the date of realisation and in one of the cases this High Court has passed an order that in case the payment is not made within the stipulated period than the rate of interest will be 18% per annum. It was consequently prayed that cross-objections should be accepted and the Award of the learned Tribunal dated 21.4.1988 be modified to Rs. 1,92,600/- with interest and cost.
10. The above contentions advanced on behalf of the claimants were controverted on behalf of the driver Bashir Khan and the State by Shri K.N. Tikku learned Counsel for the driver and Shri N.L. Pareek, Dy. Government Advocate for the State.
11. In S.B. Civil Misc. Appeal No. 105/88 it has been contended on behalf of the State that the learned Tribunal has not taken note of the fact that the claimants themselves have averred in their petition that the driver Bashir Khan at the time of accident was on duty and was driving the jeep in discharge of his official duty and hence no Award should have been passed against the appellant. It was further contended that the learned Tribunal has acted illegally in treating the site-plan Ex. P.2 as substantial piece of evidence on the basis of which the conclusion was drawn that the deceased Isar was driving the cycle on his right side on the road, while the appellant went on the wrong side and hit the deceased. It was further contended that the learned Tribunal has seriously erred in disbelieving the evidence of the appellant and his witnesses without giving any cogent reasons. It was further contended that from the perusal of the evidence led by the appellant it is amply proved that the deceased Isar and P.W. 4 Ramlal were drunk and were going with speed on their cycles while half of the road was blocked as the construction work was in progress. The appellant had stopped the jeep seeing the deceased Isar and P.W. 4 Ramlal who were going with speed on their cycles and that Isar had struck against the backside of the standing jeep. It was further contended that learned Tribunal has not taken into consideration that the appellant had been acquitted of the offence under Section 304-AIPC as he was not driving the jeep rashly and negligently, and in absence of the evidence on record on Award could have been passed against the appellant. It was further contended that the entire Award was passed on conjectures and surmises and that the income of the deceased at Rs. 400/- per month was taken without any basis and, therefore, the Award deserves to be set aside.
12. In support of their claim, the claimants have examined Mangilal P.W. 1 (father of the deceased), Prahaladi P.W. 2 (widow of the deceased), Moti P.W. 3 (brother of the deceased), Ramlal P.W. 4 and Ramsingh P.W. 5 A.S.I. On behalf of the driver and the State, Bashir Khan D.W. 1 (driver himself), Amir Mohammed D.W. 2, Nangaram D.W. 3, Dr. V.D. Sharma D.W. 4 and Mansingh D.W. 5 were examined as witnesses.
13. Since the facts are not in dispute and it is admitted on the record that the accident had taken place, I do not think it necessary to discuss the evidence of the witnesses examined in the case, since this Court while dealing with the claim petition in first appeal, is primarily concerned with the question as to whether the compensation which has been awarded by the Tribunal in favour of the claimants was rightly awarded in accordance with the well settled principles in this regard as envisaged under the Motor Vehicles Act, 1939.
14. I have heard learned Counsel for the parties, examined the rival claims and considered the cross-objections and also the relevant evidence on the record.
15. It is not disputed that the accident had taken place between the jeep driven by Bashir Khan which belonged to State Agriculture Department and that the accident had taken place as a result of collusion of the jeep with the cyclist Isar deceased. This fact is fortified from the evidence of the witnesses of the claimants as referred to above and is also proved from the F.I.R. which was lodged with the police and the site-plan prepared by the Investigating Officer. It has been established on the record that the deceased had aged parents, his wife Prahaladi and two minor sons namely, Rampal and Sohan.
16. The factum of evidence with regard to the manner in which the accident had taken place resulting in the death of Isar is fully established from the evidence on record. I am of the opinion that the findings of the Tribunal do not call for interference in this regard. I am further of the opinion that the learned Tribunal has rightly held that the driver Bashir Khan was driving the jeep rashly and negligently by bringing the same on his wrong side and had hit the deceased Isar as a result of which he had sustained injuries which proved fatal and this fact is further fortified from the hospitalisation of the deceased by Bashir Khan driver, where the later on succumbed to his injuries. In this connection it will be relevant to refer to the evidence of Dr. V.D. Sharma D.W. 4 who had medically examined the deceased on the date of occurrence. He has in his deposition stated that if the jeep is driven rashly and consequently hits the cyclist, then the cyclist can sustain serious injuries. This Doctor has not ruled out the probability of the injuries sustained by the victim and the factum of serious injuries is fully established from the post-mortem report Ex. A.4 proved on the record. In the post-mortem report the Doctor has opined that the cause of death was as a result of intra-cronical haemorrhage due to the injury to the brain and all the injuries were antimortem in nature.
17. During the course of hearing learned Counsel for the claimants placed reliance on the following judgments:
N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal and Ors. 1980 A.C.J. 435 (SC), State of Punjab v. Har Bhajanlal Kochhar and Ors. 1980 A.C.J. 437 (HP), Pannalal v. State of Bombay and Ors. , Jagbir Singh and Ors. v. General Manager, Punjab Roadways and Ors. 1987 A.C.J. 15 (SC), Jyotsna Dey and Ors. v. State of Assam and Ors. 1987 ACJ 172 (SC) : I (1987) ACC 173 (SC), Rukmani Devi and Ors. v. Om Prakash and Ors. 1991 A.C.J. 3 (SC), Rajasthan State Road Transport Corporation, Jaipur v. Om Prakash Gupta and Ors. 1981 A.C.J. 332 (Rajasthan).
18. In N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal and Ors. (supra) the Apex Court while dealing with the initial presumption based on the doctrine of res-ipsa-loquitur in motor accident claim cases observed that the Accident Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes. It was further observed by the Apex Court that the heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour and the State must seriously consider no-fault liability by legislation.
19. In the matter of Pannalal v. State of Bombay (supra) the Apex Court while dealing with the question of cross-objections filed by the claimants directly in the Court held that the Appellate Court can give relief to the claimants which the circumstances of the case may so require. It was further observed that if there was no impediment in law, the High Court in appeal could therefore, though allowing the appeal of the defendant-appellant by dismissing the plaintiffs suit against it, give the plaintiff-respondent a decree against any or all the other defendants who were parties to the appeal as respondents. Thus it was observed by the Apex Court that the scope of the powers of the Appellate Court in entertaining cross-objections under Order 41 Rule 33 CPC is couched in wide terms and the cross-objections preferred by the claimants of the deceased can be entertained directly in appeal.
20. In the matter of State of Punjabi. Harbhajan Lal Kochhar and Ors. (supra) the High Court of Himachal Pradesh while dealing with the maxim ‘Res-ipsa-loquitur’ on the question of negligence of the Driver of the Vehicle which went off the road resulting in serious injuries to some of the passengers, held that the driver was negligent and the maxim fully applies in the said case.
21. On the question of award of interest on the Award amount by the learned Tribunal, the Apex Court in the matter of Jagbir Singh and Ors. v. General Manager, Punjab Roadways and Ors. (supra) had enhanced the award of interest from 6% to 12% per annum from the date of claim petition till the date of payment.
22. Keeping in view the facts and circumstances of the case and the propositions of law, as referred to above, I am of the considered opinion that the learned Tribunal had not correctly applied the multiplier of 25 x 2400 on the basis of which an Award of Rs. 60,000/ – was passed in favour of the claimants which, in my opinion, is not the correct view since the Tribunal should have taken into consideration the age of the deceased as on the date of accident which was 30 years and would have lived for another 35 years i.e., 65 years, hence the multiplier of 200x12x35 should have been applied which comes to Rs. 84,000/- taking Rs. 200/- per month which the deceased was contributing for his family expenditure out or his total income of Rs. 400/- per month. Taking into consideration the settled proposition of law and totality of the circumstances and also the fact that where two views of evidence are possible, even then the benefit should be given to the claimant for whose welfare the Act has been enacted by the Legislature, I am of the opinion that this Court should resort to that view which is more favorable to the claimants, since the Motor Vehicle Act is a welfare legislation intended to protect the helpless claimants of the deceased and, therefore the claimants are entitled to enhancement in the amount of compensation at the rate higher than what has been awarded by the Tribunal. In this respect it will be pertinent to mention that the claim petition was filed in the year 1982 and was decided by the learned Tribunal in the year 1988 against which cross-objections were preferred in this Court in the year 1988 which have come up for final hearing in the year 1994. Thus, there has been time gap of about 12 years between the date of claim petition before the Tribunal and its final adjudication by this Court and, therefore, the Award amount deserves to be enhanced in view of higher cost of living and inflation.
23. In the result, appeal preferred by the driver Bashir Khan (S.B. C.M.A. No. 105/88) against the Award of learned Motor Accident Claims Tribunal, Tonk, dated 21.4.1988 is dismissed, while cross-objections filed on behalf of the claimants (respondent Nos. 1 to 4 in Appeal No. 147/88) for enhancement of the award amounting to Rs. 1,92,600/- are allowed only to the extent that instead of Rs. 1,92,600/- as claimed by the claimants, a sum of Rs. 84,000/- is awarded with costs which are quantified at Rs. 250.00. It is further directed that the claimants shall also be entitled to interest @ 12% per annum from the date of claim till realisation of the full amount or payment thereof. The appeal preferred by the State of Rajasthan and Deputy Director Agriculture (Extension), Tonk (S.B. C.M.A. No. 147/88) against the Award dated 21.4.1988 passed by Motor Accident Claims Tribunal, Tonk is also dismissed. It is directed that a sum of Rs. 84,000/- i.e., the amount allowed by this Court in favour of the claimants of the deceased by way of enhanced compensation by modifying the Award dated 21.4.1988 passed by learned Tribunal in Motor Accident Claim Petition No. 8/82, shall be paid by the State to the claimants of the deceased or shall be deposited with the Tribunal, Tonk within a period of eight weeks from the date of presentation of certified copy of this order to the learned Tribunal. I am informed by the learned Counsel for the claimants that a sum of Rs. 30,000/- has already been received by the claimants which shall be deducted from the amount of Rs. 84,000/- and the balance amount to which the claimants are entitled shall carry interest at the rate of 12% per annum from the date of claim till the date of actual payment. It is further directed that in the event of non-payment of the Award amount to the claimants as indicated above, the State shall be further liable to pay interest @ 18% per annum till the date of actual payment.