JUDGMENT C.A. Rahim, J.
1. On 8.12.1976 an accident occurred in which a scooter No. DHU 7357 was struck by one truck No. UPS 4224 in which the driver of the scooter, Milap Chand, received injuries and died thereafter. The claimants are the wife and minor children of the deceased Milap Chand. They preferred claim petition before the Claims Tribunal and claim case No. 5 of 1977 was registered. The allegation was that the said truck hit the scooter at about 7.30 p.m. while it was being driven rashly and negligently and at a high speed. It has also been alleged that the truck was moving on the wrong side of the road and its right hand side headlight was also off.
2. The owner and the insurance company contested the claim. They contended that it was the driver of the scooter who was driving it at a high speed, rashly and negligently and dashed the truck which was moving on the right side. Their case was that the driver of the scooter was negligent and not the driver of the truck. Evidence from both the sides was tendered along with some documents. The learned Tribunal Judge held that the truck was not being driven rashly and negligently and it was the deceased who was on the scooter became negligent and since he was responsible the learned Tribunal Judge dismissed the claim.
3. Being aggrieved by the said order of the learned Tribunal Judge all the claimants preferred this appeal. It has been contended on behalf of the claimants that the learned Tribunal Judge was wrong in holding that the driver of the truck was not negligent and it was the driver of the scooter who was negligent. They have submitted that the learned Tribunal Judge has based his finding relying on the evidence of DW 1 and DW 3 (driver of the truck) and without any rhyme or reason discarded the evidence of the claimants' witnesses. It has also been submitted that the learned Tribunal Judge did not consider about the fact that right hand side headlight of the truck was not burning at the time of the accident. In this case, on behalf of the claimants nine witnesses have been tendered. Out of them PW 4 and PW 5 are the eyewitnesses. PW 4 has stated that the speed of the truck was quite fast at the time of the accident. It was being driven recklessly and negligently. Right hand side headlight of the truck was off and the said truck was coming on the wrong side of the road leaving only 3-4 steps on the right side of the road. PW 5 has also followed PW 4 and stated that right hand side headlight of the truck was not burning at the time of the accident. Both of them have claimed to be eyewitnesses of the occurrence. It appeal's that only negative suggestions were given to PW 4 and besides that, no cross-examination was done on the point whether the right hand side headlight of the truck was burning. The learned Tribunal Judge did not discuss this aspect of the matter and did not show any reason while discarding the evidence of PW 4 and PW 5 in this respect.
4. First information report was lodged by PW 8 who was not an eyewitness of the occurrence but reached there soon after, i.e., within two hours of the accident. In the first information report he has stated that the right hand side headlight of the truck was off at that time. He gathered the said information from the people assembled there. As he reached the place of the occurrence soon after the occurrence his evidence should be considered as admissible under Section 6 of the Evidence Act. This is the first report in point of time which cannot be said to have been concocted. The learned Tribunal Judge did not discuss the evidence of PW 8 and his contention in respect of the defective light of the right hand side of the truck. He has discussed the evidence of PW 3, the driver-constable who examined the vehicle and stated that he did not find any mechanical defect in the truck. In cross-examination it was elicited that the right hand side headlight was defective. The learned Tribunal Judge discarded it without discussing the evidence of PW 4 and PW 5, the eyewitnesses of the occurrence and the first information report lodged by PW 8. The Motor Vehicle Inspector's report disclosed that the right hand side light of the truck was defective.
5. The learned Tribunal Judge relied upon the evidence of DW 1 and DW 2. DW 1 is Jai Bhagwan Das. He has claimed that he was in the truck at the time of the accident. He took a lift at Gurukul Kangri Mor. To discredit this witness the claimants have examined PW 9 to prove one attendance register, Exh. 15, which disclosed that on that date he was in service in a firm at Saharanpur, 60 kms. away. The learned Tribunal Judge has elaborately discussed the evidence of PW 9 and found that the said attendance register was concocted one. He also found that DW 1 was a gained-over witness. The learned Tribunal Judge, on the one hand, distrusted DW 1, Jai Bhagwan Das and, on the other hand, relied upon his evidence along with the evidence of DW 3, the driver and came to the conclusion that the driver of the scooter (deceased) was negligent and not the driver of the truck without analysing the evidence of DW 1 and DW 3. DW 1 has stated that one conductor was sitting behind and besides him nobody else was in the truck. DW 3, driver, has stated that conductor was not there, only one person Jai Bhagwan was present. Learned counsel for claimants has submitted that the said person Jai Bhagwan was not examined. Two contradictory statements have been made by DW 1 and DW 3. Moreover, when DW 1 himself was distrusted by the learned Tribunal Judge, he did not give reason why his evidence on the point of accident was relied upon. It was safe to discard his evidence in tola when disbelieved by learned Tribunal Judge. Besides this, only the evidence of DW 3, the driver, remains. After reading the evidence of DW 3 it appears that he wanted to save himself and to shift the responsibility on the shoulder of the deceased which he in the natural course of event ought to protect his own interest. At this juncture we should not consider that the claimants' claim should be discarded on the sole negative evidence of DW 3, the driver, who is an interested witness.
6. The learned Tribunal Judge has relied upon the photographs but did not rely upon the sketch map of the P.O. From the photographs itself it appears that much space was left to the left hand side of the truck at the place of accident. The contention of the learned Counsel for the claimants is more probable that when the truck was moving at a speed of 30-40 kms. on an empty road with only one light on, i.e,, only the left hand side, it would generally cause illusion of a two-wheeler or a three-wheeler to the person coming from the opposite side and that was sufficient to cause the accident. On this point we are of the opinion that the prosecution has been able to prove that right hand side headlight was not burning at the time of the accident. Considering the evidence along with this aspect of the matter we also find that the driver of the truck was on the wheels driving rashly and negligently and at a high speed without having its right hand side headlight on for which the accident was caused. It appeal's that the respondents have taken other pleas too in the lower court which was not argued before us hence those points are not taken into consideration.
7. As regards quantum of compensation it appears from the judgment that the learned Tribunal would have awarded Rs. 68,000/- to the claimants if they could prove that the driver of the truck was negligent. In this respect he has taken into account the income tax return of the firm of the partners of the said firm and came to the finding that each of the partners had an income of Rs. 9,323 per annum (i.e., Rs. 776/- p.m.), accepting the fact that the deceased was one of the partners. So we can safely consider that his family contribution was Rs. 500/- p.m. and the loss of dependency would be worked out if multiplier of 16 is adopted. If the annual dependency was Rs. 6,000/-, we can find that total loss of dependency of the widow and her three minor daughters would be Rs. 96,000/- and we award that amount as compensation in this case.
8. With regard to the interest both sides have argued protecting the interest of their clients. After hearing both the sides we find that the interest at 10 per cent would meet the ends of justice if the said rate of interest is charged from the date of filing of appeal.
9. Since the insurer has got maximum liability to the extent of Rs. 50,000/-, it is ordered that the insurance company, respondent No. 3, will pay Rs. 50,000/- to the claimants and the rest will be paid by the owner of the truck, respondent No. 1.
10. In the result, the appeal is allowed. There shall be no order as to costs.