JUDGMENT N.N. Mittal, J.
1. This is an appeal by the claimant in a motor accident claim case who, having failed in the court below has come up for redress in this Court.
2. According to the case of the parties on 15.9.71 the deceased along with Nand Kishore P.W. 1 started from Jalesar on Motorcycle No. UPT 1614 for Agra. The motorcycle was being driven by the deceased and Nand Kishore was seated on the pillion. When they approached to village Naharpur on the main road truck No. UPT 564 was going ahead which he overtook after the truck-driver had duly given side to him. As soon as the motorcycle had overtaken the truck he saw a cyclist coming from the opposite direction due to which the motorcyclist fumbled and fell down throwing away the pillion rider on the left side beyond the road while the driver himself fell down on the road. The truck which at that time was about 15 to 20 paces behind came rushing and curshed the skull of the motorcyclist who had been lying on the road. The truck still went ahead and only when some persons in the truck and some from outside cried out did the truck driver stop the vehicle. A claim for Rs. 20,000/- by way of compensation on account of the death of the motorcyclist was preferred under Section 110-A of the Motor Vehicles Act. The driver of the truck Munna was earlier prosecuted under Section 304-A I.P.C. but seems to have been acquitted.
3. The defence taken by the truck-owner was that on the relevant date he had ceased to be the owner of the truck having transferred the same to Onkar Singh, a few days before the accident, he also pleaded that at the relevant time Munney Khan was not in his employment and, therefore, he was not liable for payment of any compensation. It was, however, admitted in his written statement that Munney Khan was driving the truck at the time of accident. It was also pleaded that the truck stood insured on 15.9.1971 with respondent No. 4 which has since been amalgamated with New India Insurance Co. Ltd. Kanpur. According to him no accident had taken place involving the motorcycle and the truck and only a collision between the cyclist and the motorcyclist had taken place in which neither the truck driver was at all involved nor was he guilty of any negligence. The truck being on its proper side and being at a low speed no negligence could be attributed to the driver. Lastly, it was pleaded that the deceased himself was negligent and responsible for his death as he was a minor and was driving the motorcycle without licence.
4. The alleged transferee, Onkar Singh filed a seperate written statement almost on the same lines as those taken by respondent No. 1 but in addition, he too denied ownership of the truck on the day when the accident took place.
5. Munney Khan, driver of the truck, filed his own written statement denying that the truck involved in the accident was being driven by him. He also disowned liability for payment of any compensation.
6. The Insurance Co. in its written statement also denying insured the truck in question at the relevant time although it admitted being its insured for the subsequent period i.e. 3rd May, 72 to 2nd May, 1973. It pleaded its inability to trace out the documents of insurance in respect of the vehicle in question for the period in question because of enormity of the number of policies which are taken out each year from various branches of the company.
7. On the pleadings of the parties as many as 15 issues were framed by the Claims Tribunal. The claimant filed some documentary evidence such as a copy of the F.I.R., the post mortem report and five photographs of the spot taken soon after the accident had taken place. Respondent No. 1 also filed two papers purporting to be the copies of letters sent by the Insurance Co. regarding the insurance of the truck.
8. In addition the claimant also examined two eye-witnesses P.W. 1 Nand Kishore, who was the pillion rider and Suresh Chandra P.W. 2 who was an occupant of the truck involved in the accident. The claimant himself was the third witness. He only proved some documents besides the quantum of compensation as claimed by him for self and his wife, who was made a respondent. From the side of the owner also two witnesses were examined, himself as D.W. 1 and one Staya Prakash D.W. 2 who is alleged to be an eye-witness and was sitting by the side of the road when the accident occurred.
9. The tribunal, on available evidence, held that respondent No. 1 was the owner of the truck, the deceased was a minor without any driving licence; the truck driver was not negligent, and the deceased himself was negligent. It also held that the truck was not covered by insurance but was being driven by Munney. The tribunal was of the view that the claimants would be entitled to Rs. 20,000/- by way of compensation if the claim otherwise succeeded. The other issues decided by the tribunal are not relevant for the purposes of the appeal. Some of the questions raised before the tribunal have either become redundant or have not been pressed before me. They only questions that have been urged before me relate to the negligence of the truck driver and absence of own negligence of the deceased.
10. Having heard the learned Counsel for the parties, I find force in these submissions. Admittedly, the deceased and Nand Kishore were proceeding from Jalesar to Agra on a motorcycle which was being driven by the deceased and Nand Kishore was seated on the pillion. The truck in question was also proceeding in the same direction. The evidence clearly shows that both the vehicles were going at the speed about 40 to 45 Kmph. Near village Naharpur the motor-cyclist overtook the truck at the speed of 60-65 Kmph after first obtaining clearance from the truck driver when he suddenly faced a cycle coming from the opposite direction. There is some difference in the rival cases as to whether the motor-cyclist actually collided with the cyclist or he merely fumbled on being confronted with an on coming cyclist and fell down on the road without any collision. The fact remains that the motorcycle fell down and in the process the pillion rider was thrown away to the left and he fell clear of the road while the motorcyclist fell down on the road itself. At that moment the truck was about 15 to 20 paces behind and was coming at the speed of about 40 Kmph. There is, however, no evidence to show whether the truck driver made any effort to apply the brakes or to take any other precaution eversince the motorcyclist overtook the truck until he fell down or immediately thereafter. The driver has not come in the witness box although he would have been the best person to state the exact manner in which the accident had taken place. In his absence, therefore, the statement of Suresh Chandra P.W. 2 who was besides the truck driver assumes importance. The claims tribunal has discarded him as a get-up witness only because he was neither cited in the F.I.R. nor interrogated by the police or produced in the case under Section 300(a) I.P.C. as the prosecution witness.
11. In this connection it will be worth noticing that the F.I.R. was lodged at about 1.30 P.M. soon after the accident by Ram Prakash, father of the deceased who was not an eye-witness himself. The F.I.R. shows that it was lodged on the basis of information given to him by one Jagdish Pd. It only mention that an accident had taken place with truck No. UPT 564 driven by Munna near village Naharpur at about 12.30 P.M. which had crushed Ashok Kumar and injured Nand Kishore who had been sent to Agra for treatment. There was hardly any occasion for Ram Prakash to have mentioned any name in the F.I.R. of the persons who had witnessed the accident. He had only repeated what had been told to him by Jagdish Prasad.
12. It is also incorrect that Suresh Chandra had not been examined as a prosecution witness. He was P.W. 4 there as would be clear from the judgment of that case. There was no suggestion given to Suresh Chandra that he had not been interrogated by the police. The assumption made to the contrary by the Claims Tribunal is erroneous. His statement has also been discarded by the tribunal on minor contradictions which cannot be justified. Two such contradictions have been noticed. According to first, P.W. 2 had stated that after overtaking the truck the motorcyclist had come to the left side of the road before it collided with the cycle while P.W. 1 had stated otherwise. Another contradiction pointed out is that according to this witness the motorcycle had never crossed the truck from Jalesar to Naharpur while according to P.W. 1 motorcycle had started earlier from Jalesar and at first the truck had overtaken it and thereafter the motorcycle had overtaken the truck. Both these contradictions cannot be said to be material at all. Much depends on the power of observance of each individual. When the motorcycle and the truck were travelling in the same directions and at almost the same speed, hardly any one will notice how many times the motorcycle had overtaken the truck, if at all. These are matters on which no particular attention of an individual is normally drawn. Therefore, due to this reason alone his entire testimony cannot be discarded. This is particularly when truck driver had failed to appear in the witness box at all. He would have been the best person to state whether Suresh Chandra was travelling with him in the same truck and also about the manner in which the accident occurred. The previous statement of Suresh Chandra has not been placed on record for contradicting him as, it appears, there was no contradiction and thus no occasion arose for doing so. I, therefore, find it difficult to discard the testimony of this witness who, in my opinion, is the most crucial witness in the case.
13. According to Suresh Chandra, he was seated by the side of the driver in the truck. After the motorcycle had been given side to overtake the truck the motorcyclist came ahead of the truck and when he fell down on the road the truck was still about 15 to 20 paces away. The truck was hesitatingly proceeded and after crushing Ashok Kumar to death it stopped only after 100 yards inspite of all their yelling and crying to stop the truck. There has been no cross-examination of this witness to enquire how the driver dealt with the situation. Whether he had applied the brake or did any other thing to avoid crushing the person lying on the road. No cross-examination is directed to elicit whether there was any space available on the left half side of the road to enable the truck to pass without striking against the person who had fallen on the road. The way in which the driver proceeded nonchalantly, inspite of having seen the motorcyclist fall on the road and the fact that the truck was stopped only when insisted upon by those sitting in the same truck and that too after covering a distance of nearly 100 yards show utter callousness of the driver and his gross carelessness in taking even such necessary steps which are normally taken in such a situation. It has been argued that 15 to 20 yards is not a sufficient distance in which one can bring a truck to a stop particularly when it was laden with bags. Even if the truck could not be brought to avoid stop within this distance, yet the driver neither applied the brakes nor turned the vehicle to its left or did any thing else to show that he had any intention to avoid any possible mishap. It is amply clear from the photographs placed on record that more than half of left side of the road was clear and only a little effort on his part to slow down the vehicle and turning it to the left might have saved the life of Ashok Kumar who had fallen on the road. It is this care which is sadly lacking on the part of the truck driver. No one can prevent an imminent accident but what is expected of a driver is an effort, an attempt to avoid as far as may be possible, even a seemingly inevitable accident. Even if the motorcyclist was somewhat negligent in overtaking the truck at a speed of 60 Kmph. Yet the driver of the truck also owed certain duties. The overtaking was attempted after blowing the horn and only after the truck had given necessary side which shows that the truck driver must have ensured that there was no on coming traffic. Yet as soon as the motorcyclist had overtaken and had proceeded only a little ahead he encountered a cyclist from opposite direction causing him to collide with him or may be, fumble and in the process fell down on the road. In the situation the least one would expect of the ordinary prudence and to try his best to avoid hitting the fallen motor-cyclist. A driver with even an ordinary proficiency would immediately put his legs on the brake and attempt to slow down the vehicle within the least distance. He would also try to turn his vehicle so as to avoid hitting the fallen man. According to the evidence the truck was on its left side while the motor-cyclist had fallen on the right half of the road. He was lying in a transverse position with his head towards the middle of the road and feet to the right edge of the road. According to the postmortem report and the photographs the only injury caused to the deceased appears to be on a portion of his skull. A movement of the truck a few inches to the left would have been sufficient in saving the young life that has been cut out in this cruel fashion just on account of driver's indifference of failure to take timely action.
14. The claims tribunal seems to feel that merely because on a high-way the speed of 40 Kmph was not excessive the truck driver was not negligent. That principle cannot be applied in all eventualities. When driving on a highway, nearly the speed of 40 Kmph is not excessive but not so when he had himself given side to a motor-cyclist a little while ago and witnesses the motorcyclist falling on the road a few yards ahead of him. In this situation if he continues to drive his vehicle at the same speed his act cannot be anything but an act of negligence. What is necessary to be seen is as to whether he had an opportunity to avoid the accident and whether he negotiated the situation in a reasonably prudent manner. The tribunal has not examined the evidence in this light at all.
15. The claims tribunal has instead built up an entirely new case. It has taken the view that the motor-cyclist probably died due to the fall from the motor-cycle as his head must have struck the metalled road causing serious brain injuries so as to result in his death. The truck had, therefore, crushed only the head of a dead body. Such a plea had not been taken in the written statement nor is it impossible for me to read any such case from the pleadings. Formal proof of the post-mortem report was dispensed with. There was thus no need to examine the doctor who conducted the post-mortem. He could possibly throw some light whether the victim had died of injuries received from the fall. The post-mortem report reveals injuries on the skull of the deceased due to which entire brain matter had come out and blood was oozing out from the orifices. This would be impossible unless the skull had been pressed very hard. In a fall blood would not have oozed out the orifices. The plea that the death had already occurred from the fall and the wheel of the truck had passed over the head subsequently can neither be raised nor such a plea be sustained on the evidence led.
16. Further the plea taken in para 7 by respondent No. 1 is that due to collision with the cycle Ashok Kumar himself fell directly under the wheel of the truck and therefore his death did not result from any negligent act of the driver. The alternative plea is that the truck driver had no occasion to avoid the accident. Thus what was pleaded was inevitability of the accident and total absence of any collision between the two vehicles. In the face of these pleadings it is not possible to permit any argument that Ashok Kumar had died of head injuries received in a fall from the motor-cycle on the road and not by the truck.
17. The tribunal has also held that truck driver had no opportunity of avoiding the accident and the motor-cyclist himself was guilty of negligence. I have already discussed the circumstances in which the accident had taken place and in my view the driver of the truck still had ample opportunity of avoiding the accident or atleast to attempt to do so. Here is a case in which the driver had made no effort at all to avoid the accident and this by itself proves his negligence.
18. Much stress has been laid on the point that there had been no collusion between the motorcycle and the truck and, therefore, the truck driver was not liable. The argument has no substance. If death had resulted due to collusion between cycle and the motorcycle the question of letters negligence in the matter would have been relevant. Here the collusion with the cycle was merely the cause of the fall of the motor-cyclist but not of his death its only significance lies in considering how the driver of the truck ought to have reacted on seeing this happen. When the truck was still about 15 to 20 paces behind the place where the motor-cyclist had fallen in my opinion the truck driver had enough time and opportunity of avoiding the accident. If this was not done, the truck driver must be held negligent. Law cases a duty on every driver of a motor vehicle while driving on a public road to be careful not only about driving of his own vehicle but also to be watchful of the traffic on the road and in that process he must be reasonably careful even for the mistakes committed by others. The only way in which the driver can escape his liability is by showing that inspite of all his prudent efforts the accident could not have been avoided.
19. Reference has also been made to Schedule X framed under Section 71 of the Motor Vehicles Act. It prescribes maximum speed limit of 50 Kmph for motorcycle and 60 Kmph for the truck. It is urged that the motorcycle was admittedly being driven at 60 Kmph at the time of overtaking the truck and this proved that the motorcyclist himself was negligent. There is, however, no evidence to show its speed when it collided with the cycle. After overtaking, the motor-cyclist was trying to regain its proper side when he was confronted with the cyclist when the motorcyclist had fallen down. As I have said earlier all this may be the cause of the accident with the cyclist but was not of the accident with the truck. The speed of the motorcycle at the time of overtaking will, therefore, be of no importance for our purpose.
20. Testimony of P.W. 1 has come in for severe criticism. He is said to have become unconsious after being overthrown from the motorcycle and he regained consciousness only for a short while whereafter he relapsed into unconsciousness only to regain it in the hospital. It is urged that this renders his evidence useless. This is not so. His evidence up to the time of his being thrown off the motorcycle is quite relevant and material. Standing by itself too much importance may not be attached to his evidence yet when it stands corroborated by statement of P.W. 2 who was another eye-witness, his statement also acquires weight. Claims Tribunal also held that Munna Khan was driving the vehicle and inspite of denial by D.W. 1, Munna Khan absence from the witness box lends credence to claimants evidence. D.W. 1 is an interested person and no evidence has been adduced to show that Munna Khan was not in his employment or was not driving the truck at the relevant time. See 1970 A.C.J. Page 40 Rajamall v. Associated Transport Co. Munna was the best person to do so. He had filed his written statement but took no further part in the proceedings. The finding of the Claims tribunal that Munna was an employee of respondent No. 1 and gas driving the truck at the relevant time must be accepted.
21. It has been held in Diwan Hari Chand v. Municipal Corporation of Delhi that:
The accident occurred in broad day light and on straight road. Admittedly the scooter was visible to the bus driver and admittedly it was also standing on the left side of the road. Even if it is assumed that the accident occurred while the scooter was started and while it had come on the road it does not absolve the driver of the Bus from his duty to avoid accident when he saw the driver of the scooter trying to start it. He must have antecipated that the scooter would be started and that too would move on to the road. He should have, therefore, slow down the speed of Bus sufficiently so as to bring it to stop in an emergency. This failure to take such precaution amounts to culpable negligence.
22. Thus on an overall view of the evidence I have no hesitation in holding that the driver of the truck was guilty of negligence and respondent No. 1 is liable for the acts of its employee and for the loss caused to the claimants.
23. In the end learned Counsel for the respondent also urged that the court below had erred in holding that neither the vehicle was duly insured on the date of the accident nor the insurance company was liable to pay any compensation. According to him, it was clearly pleaded that the vehicle had been insured with Anand Insurance Co. on 15.9.1971 and it now stands merged in New India Insurance Co. Besides, letter dated 26.4.1971 issued by the Insurance Co. had also been filed yet the Insurance Co. did not clearly plead whether or not it was insurer of the erring vehicle. In paras 19 and 20 of its written statement the Insurance Co. tried to take shelter by pleading that the petition was vague and policies being too numerous it could not possibly locate it unless better particulars were provided. Sri M.P. Singh, learned Counsel for Insurance Co. wants to repel this by urging that the letter dated 26.4.1971 had not been even proved and it could not be looked into. The claims tribunal was, therefore, right in not placing any reliance on this document for that reason. The document is only a plain copy of the letter said to have been issued to by the Insurance Co. There is nothing on record even to show that it was the true copy of the letter of the Insurance Co. or that its original had been lost. When the Insurance Co. had specifically denied the fact of insurance the owner ought to have atleast summoned the records of the Insurance Co. or the Regional Transport Officer to show that this vehicle was duly insured at the relevant time. The owner having failed to do so is not now entitled to claim reimbursement from the Insurance Co. Reliance is placed on A.I.R. 1981 Karnataka, 177 Madarsale Saheblala and Ors. v. Nagappa Dittappa and Ors. where it has been held that "strict rules of evidence are not applicable to cases before the claims tribunal." In that case the facts were quite different and the original insurance policy had been produced and bore an endorsement and seal of the Court. It was also relied upon in the award. However, a formal exhibit mark had been omitted due to inadvertance. When in appeal it was urged to exclude the policy from consideration as it was not exhibit marked the court took the view that strict rules of evidence are not applicable in these matters. The consistent view of almost all the High Courts, however, is that the Claims Tribunal is a court and Evidence Act is applicable in proceedings before it. If Evidence Act is held applicable it rules also must be followed. When the original was not filed nor summoned or proved to have been lost no party can rely upon a plain copy thereof. If such a practice was to be allowed, the result would be disastrous and all sorts of inadmissible and doubtful evidence will start appearing on record making it even more difficult for the court in finding out the truth.
24. Then lastly remains the question about quantum of compensation. On this point only a faint effort has been made to dispute the correctness of the amount determined as compensation. The Claims Tribunal has taken into account the relevant consideration and has awarded a modest compensation of Rs. 20,000 /- for the life that has been cut out in its very prime due to the negligence of the truck driver. In the circumstances of the case the amount awarded appears to be just and admits of no interference at all by the Court.
25. In the result the appeal succeeds and is hereby allowed. The claim petition is allowed and a sum of Rs. 20,000/- (Twenty thousands) is awarded to the claimant as compensation against respondent No. 1 alone. The claimants will also get interest on this amount at the rate of Rs. 6/- per cent per annum calculated from the date of the petition till the date of realisation along with costs throughout.