JUDGMENT J.S. Trivedi, J.
1. These two appeals are directed against the order of the Motor Accidents Claims Tribunal, Meerut decreeing the claimant-respondents' claim to a sum of Rs. 25,000/-.
2. One Lachman Singh was returning on his cart on Baghpat Delhi road on 17-10-68. Truck No. UPS. 9031 came from behind and smashed the buffalo-cart with the result that Lachman Singh and the buffalo died on the spot and the cart was badly damaged. The truck belonged to Babu Singh under a hire-purchase agreement from Nice Financier and Engineering (Private) Ltd., Delhi and was insured with Jupiter General Insurance Co. Ltd. for a sum of Rs. 40,000/-. Jai Bhagwan was the driver of this truck. Sri Babu Singh was also travelling in the same truck. The truck was going from Saharanpur to Delhi. After notice to Sri Babu Singh the claimants opposite parties claimed compensation under Section 110-A of the Motor Vehicles Act amounting to Rs. 27,000/-.
3. The claim was contested by the Jupiter General Insurance Co. and Sri Babu Singh. The learned Motor Accident Claims Tribunal decreed the claim and gave its award by its order dated 9-2-71. Under the award the claim of the claimants was decreed to the extent of Rs. 20,000/- against the Jupiter General Insurance Co. and the remaining amount of Rs. 5,000/- was decreed against Sri Babu Singh. These two F. A. F. Os. have been filed against the aforesaid award of the Tribunal. F. A. F. O. No. 179 of 1971 is by Jupiter General Insurance Co. and F. A. F. O. No. 118 of 1971 is by Babu Singh.
4. Learned counsel appearing for the Jupiter General Insurance Co. has contended that:--
(1) The claim was vague and was not properly verified. He has also stated that in the absence of a claimant coming in the witness box the claim could not be deemed to have been filed by the claimants.
(2) Burden of proof of negligence lay on the claimant and no allegation of negligence was made in the claim.
(3) The award is bad without any issue on proof of negligence.
(4) The driver and the financier i.e. Nice Finance Co. were necessary parlies and th" claim, therefore, is bad on that account.
(5) The compensation award is exces-iiv" and has not been accorded in accordance with the principles of law.
5. On behalf of Sri Babu Singh, in addition to points raised by the Jupiter General Insurance Co., it has further been stated that Babu Singh was not liable to any extent when the vehicle was insured for a sum of Rs. 40,000/-. He has further stated that the notice by some of the heirs being for Rupees 21,700/- only the Tribunal was not competent to decree the claim for a sum of Rs. 25,000/-.
6. I have heard the learned counsel for the parties at some length. Form of application for payment of compensation made under Section 110-A is prescribed under the rules. After the particulars required to be filled in the claimant has to solemnly declare that the particulars given are true and correct to the best of his knowledge. Thereafter he has to put his signature or thumb impression. There is no form of verification as presented by the Civil Procedure Code. The claim presented by the claimants is in accordance with the form prescribed under the Act and the rules. The claim, therefore, could not be thrown out on the ground that the claim was vague. After the filing of the claim a reply has to be filed by the contesting parties and the appellants did file their replies. They in their written reply have not mentioned what particular portion of the claim was vague. It has been argued here that claim even though purports to bear the thumb impression of the claimants and the signature of the Advocate, the signatures and thumb impressions of the claimants could not be presumed. The claimants had given notice of their claim through the Advocate and at no point of time the appellants denied that the claim did not bear the thumb impression of the claimants. On the other hand the appellants contested the quantum of damages and merely denied that the claimants were the legal representatives of the deceased. It is too late now for the appellants to contend that the claim did not bear the signatures and thumb impressions of the persons on whose behalf the claim was filed. The claim has also been signed by an Advocate and it is, therefore, not competent for the appellants to argue that the claim was defective in so far as the claimants did not appear to prove their signatures and thumb impressions on the claim.
7. The next and most important question for determination is whether the plaintiff's claim could be decreed in the absence of any allegation of negligence and whether negligence could be proved from the proof of circumstances proved by the parties. Learned counsel for the appellant has relied on Narottam Dass v. The General Manager, Orissa Road Transport Co. Ltd., 1969 Acc CJ 327 (Orissa), wherein it was held by their Lordships of the Orissa High Court that:--
"It was essential for the claimant to prove that the accident was caused by the negligence of the driver or the owner; it could be alleged in para 22 of the prescribed form."
7-A. Reliance has been placed on another case reported in the same volume at page 306 of Delhi High Court Jagjit Singh v. Ram Chander wherein it was laid down that:--
"Right to claim compensation arises only when it is alleged and proved that the drvier of the motor vehicle had failed to take care."
8. State of Punjab v. V. K. Kalia, 1968 Acc CJ 401 = (AIR 1969 Punj 172) is also relied on in support of the contention that the claimant had to prove that the accident was caused by the negligence of the driver or the owner of the vehicle.
9. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not a question of evidence but it is an inference to be drawn from proved facts. Negligence is not an absolute term but is relative one and is rather a comparative term. What may be negligence in one case may not be so in another.
10. Section 110-A of the Motor Vehicles Act lays down the procedure for an application for compensation. While there is nothing in the form which requires that the allegation of negligence should be stated but under the ordinary law of Torts the liability can only be fastened if it is proved that the person against whom compensation is claimed was negligent and under the general rule of pleading and principles of natural justice it is essential that negligence should be pleaded or facts constituting the negligence may be pleaded in order to enable the Court to determine whether the facts constitute negligence or not. It is also now the well-established rule that where parties have gone to trial after understanding the whole case and have led evidence they cannot be permitted to deny the liability on the pretext that the particular fact was not pleaded.
11. In Bhagwati Prasad v. Chandra-maul, AIR 1966 SC 735 at p. 738, their Lordships of the Supreme Court observed:--
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence..... What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it."
12. Examining the case in the light of the observations made by their Lordships of the Supreme Court it is clear that not only the parties knew the matter in question but they led evidence about it The notices given on behalf of the claimants clearly mentioned that death was the result of fast, rash and negligent driving of the truck. One notice was on behalf of Babu Singh through Dharam Vir Premi, Advocate and the other notice was on behalf of other claimants through the same Advocate. Against column 18 of the claim it was mentioned that notice was sent to the owner but the claim has not been met and hence the application. The claim was supposed to be read along with the notice of the claimants. The written statement filed on behalf of Babu Singh and the Jupiter Insurance Co. instead of mentioning that the plea of negligence has not been mentioned stated that the alleged incident took place due to gross negligence, want of care and want of proper control of Bhaisa Buggi by the deceased himself and he was to be blamed for the said incident. The claim, therefore, was contested on the basis of negligence by the deceased and issue No. 5 accordingly was framed to the following effect:--
"Did the accident take place due to the negligence of the deceased himself. If so, what is its effect?."
13. Four witnesses were produced on behalf of the plaintiff claimants and Babu Singh himself came in the witness box on behalf of the appellants. The witnesses for the plaintiff have deposed the manner in which the accident did take place whereas Babu Singh had tried to show that the truck driver was not at all negligent. He has as stated by the learned Tribunal changed his case and has stated that a Bus was intervening between the cart and his truck with the result that the truck driver could not see the cart. The story set up by him has rightly been disbelieved.
14. In Anchor Products Ltd. v. Hedges, 1969 Acc CJ 177 (Aus.) their Lordships of the High Court of Australia while considering the proof of negligence relied on the doctrine of Res ipsa Loquitur and remarked that:--
"If the precise cause of an occurrence be fully revealed by evidence which is accepted, the occurrence ceases to speak for itself. The question then becomes whether, having regard to the now known cause, the defendant was negligent. It matters not in such a case whether the cause be established by evidence led for the plaintiff or for the defendant. If, however, the evidence given does not establish to the satisfaction of the jury, or the judge of the fact, what was the cause of an occurrence which could speak for itself, then it can continue to do so, although if the evidence given has raised doubts it may now speak less loudly and less convincingly than before."
15. Learned counsel for the appellant has contended that the rule of Res ipsa Loquitur does not change the burden of proof. It is correct that the burden of proof is not changed, but as stated, where parties had led evidence of fact and had understood the case the burden of proof loses all importance and the duty of the Court is to find out whether the facts proved constitute negligence or not. Negligence in the instant case is to be judged whether the driver of the motor vehicle was driving the vehicle without exercising that reasonable care which was expected of him. It is expected of a driver to keep a good look of the road on the sides and on the stretch of the road in front of him. According to the evidence on record and believed by the trial Court the road was about 12 ft. wide and the Bhaisa cart was going to the left of the road in the same direction. The truck was coming from the back and there was no justification for the truck to collide with the cart if the driver was vigilant enough. The extent of damage done is also relevant and material to assess the speed of the truck. 20 or 25 kilometres per hour speed on a clear road may not be a negligent speed but it will be a negligent speed at a place where there is some traffic in front of the vehicle.
16. The Tribunal has discussed the evidence of the parties and I am in full agreement with the findings of the Tribunal that the accident was the result of the negligent act of the truck driver.
17. The next submission of the learned counsel for the appellant that the driver and the financier company were necessary parties and the suit is bad on that account has no substance. The first principle of pleading is that suits could not be dismissed for misjoinder and nonjoinder of parlies. At no stage the appellant contested the claim on that ground. Moreover under the Motor Vehicles Act, none of the two persons were necessary parties.
18. Owner is defined in Section 2 (19) of the Motor Vehicles Act:--
" "Owner" means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement."
19. The financier whatever his rights may have been under the general law or the agreement was not a owner within the definition of Section 2 (19) of the Motor Vehicles Act and as such was not necessary party. It is also in evidence that the financier had been paid off and on that account also the financier could not be deemed to be a necessary party now. The driver was only a servant of the owner and the owner's vicarious liability does not cease because the servant has not been made a party to the claim. The Motor Vehicles Act contemplates relief against an owner only.
20. Lastly the question whether the compensation was excessive or not has to depend upon a number of circumstances. As remarked in Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd., AIR 1971 SC 1624:--
"In fixing compensation, the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death."
It has also been laid down that:--
"The pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture."
21. According to the evidence and the findings the deceased had left four daughters and three sons and a widow out of whom one daughter had been married and a sum of Rs. 8,000/- was spent in her marriage. Out of three sons, the eldest is a student in Panthnagar University and a sum of Rs. 200/- was being sent to him. The evidence is also to the effect that since the death of the deceased cultivation is being done through the hired labourers and in spite of that there is not so much production as was in the lifetime of the deceased. Taking a very moderate estimate of the loss it cannot be said that the loss was for less than Rs. 200/- to Rs. 300/- a month.
22. Learned counsel for the respondent has contended that in the case of Shei-khupura, AIR 1971 SC 1624 (supra) the finding was that the deceased was spending Rs. 200/- per month on his family and yet the damages were computed at Rs. 36,000/-. His contention is that the damages computed in the present case should not have been less than Rs. 30,000/- on the basis of the above decision. The contention of the learned counsel for the respondent is correct. The family has to marry three daughters and educate three sons. 75 to 80 years is a normal span of life today and while considering the quantum of damages the present money value of the rupee could not be ignored. The learned Tribunal instead of being liberal has been very conservative in the instant case in awarding damages. As no counter-claim and cross appeal has been filed the amount awarded cannot be altered.
23. Lastly the objection of Babu Singh also has no force. The first objection that the vehicle being insured for Rupees 40,000/- Babu Singh was not liable to any damages is erroneous. Section 95 (2) of the Motor Vehicles Act reads as under:--
"Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:--
(a) Where the vehicle is a good vehicle, a limit of twenty thousand rupees in all..."
24. The section, therefore, clearly limits the liability of the Insurance Company to a limit of Rs. 20,000/- only. The Court below wai, therefore, right in refusing to decree the claim against the Insurance Company in excess of Rs. 20,000/-. The other objection also has no force. Two distinct notices were given by the two sets of claimants. The sons and daughters and the widow claimed Rs. 21,700/- and the father claimed Rs. 5,000/-. Therefore, it cannot be said that the decree was in excess of the amount claimed in the notice.
25. While the claim cannot be reduced it was proper for the Tribunal to have apportioned the decreed amount between the two sets of claimants and this can be done by this Court as well, I, therefore, while dismissing the appeals with costs apportion the amount of damages decreed in the following terms:--
"Out of Rs. 25,000/- decreed by the Tribunal, Rs. 21,700/- will be payable to the first set of claimants i.e. widow and the children of the deceased, Rs. 3,300/- will be payable to the father of the deceased i.e. Sri Lal Singh. The costs will be payable to both the sets of the claimants in proportion to their decree."