O.P. Saxena, J.
1. This is an appeal and cross objection against the award dated 29th November, 1978 made by the Motor Accidents Claims Tribunal (II) Addl. District Judge, Bulandshahar.
2. On 31-3-1977 at about 3-30 A. M. at village Tagpur, P. S. Kotwali Dehat, Chandpur, Bulandshahar and accident took place in which Talib Khan received severe injuries. The accident took place at Meerut Bulandshahar road at about 8 or 10 miles from Bulandshahar. Bags of Potatos were kept on a buffalo cart and was being taken to Secundrabad. Girdhari was holding ropes of buffalo and was driving the cart. Talib Khan was sitting on the bags kept in the buffalo cart. U. P. State Road Transport Corporation bus No. U.T.R. 469 was on its way from Hardwar to Brindavan. It was being driven by opposite party number 3 Raj Kumar. The bus struck against the buffalo cart from behind as a result of which Talib Khan fell down and received severe injuries. He was taken to Bulandshahar where he died on the same day at 9.30 A.M. The accident was seen by Alijan Khan, Inayat Ullah Khan, Girdhari, Saqi Jan and Nazir Khan.
3. On 31-3-1977 at 5.30 A.M. Alijan Khan lodged report Ext. P. S. 3 at Kotwali Dehat Chandpur regarding the occurrence.
4. On 31-3-1977 at 4.15 P. M. P. W. 1 Dr. B.U.K. Zuberi, Medical Officer, District Hospital, Bulandshahar conducted post mortem examination on the dead body Talib Khan and prepared post mortem report Ex. 1.
5. On 22-7-1977 the father, the widow and the minor sons and daughters of Talib Khan gave an application for compensation and claimed a sum of Rs. 2 lacs. It was said that the accident took place due to the rash and negligent driving of the bus by opposite [party number 3, Raj Kumar Sharma.
6. The claim petition was contested by opposite parties numbers 1 and 2. It was denied that the accident took place due to the rash and negligent driving of the bus by Raj Kumar Sharma. It was said that the buffalo cart all of a sudden came on the main road and collided with the bus. The amount of compensation claimed was also disputed.
7. The Tribunal believed the claimants' version and held that the accident took place due to the rash and negligent driving of the bus by Raj Kumar Sharma. It further held that the opposite parties were liable to pay a sum of Rs. 36,000/-as compensation. The claimants were allowed proportionate costs of the petition. Hence this appeal and cross objection.
8. Sri S.K. Sharma, learned Counsel for the appellants submitted that the Tribunal erred in holding that the accident took place due to the negligence of Raj Kumar Sharma, the driver of the bus, while there is evidence on record which shows that the accident took place on account of buffalo cart having suddenly came on the road and collided with the bus. Sri B.D. Madhyan, learned Counsel for the claimants respondents supported the finding of the Tribunal in this regard.
9. The accident took place on 31-3-1977 at 3.30 A. M. on the Meerut-Bulandshahar road. P. W. 4 Inayatullah Khan was accompanying the buffalo cart in which bags of potatos were kept. Talib Khan was sitting over the bags. Girdhari was holding the ropes of the buffalo and was driving the cart. The evidence shows that the buffalo cart was going on the left side Kachhi patri of the road. Bus No, U.T.R. 4690 driven by Raj Kumar Sharma came from behind. It was on its way from Hardwar to Brindavan. The evidence shows that a truck came from the side of Bulandshahar. The head lights of the truck were on. The driver of the bus applied the dipper, but the driver of the truck did not respond. He is said to have lighted the third light. The eyes of the driver of the bus were dazzled. The bus struck the buffalo cart from behind as a result of which Talib Khan fell down and was severelly injured. The occurrence was seen by Alijan Khan also who was working on the field of Abdul Gafoor and was getting potatos loaded in the trolley of a tractor. The field of Abdul Gafoor is at about 15 paces from the road. He rushed forward to the scene of accident. He also accompanied Talib Khan to the District Hospital, Bulandshahar and lodged a report of the accident on 31-3-1977 at 5-30 A.M. at P. S. Kotwali Dehat Chandpur. The evidence shows that Talib Khan succumbed to his injuries in the district hospital on the same day at 9.30 A.M.
10. P. W. 3 A.J. Khan and P. W. 4 Inayat Ullah Khan deposed in support of the claimants' version regarding the accident. Their evidence shows that the bus was being driven at a very high speed, that it dashed against the buffalo cart on the Kachhi patri of the road, that the buffalo cart was dragged along with the bus for about 30 paces, that the leg of the buffalo was broken and that Talib Khan fell down on the road and was severally injured P.W. 4 Inayat Ullah Khan stated that the bus was driven at a speed of 70 or 80 miles.
11. D. W. 1 Raj Kumar Sharma, Driver, D. W. 2 Nepal Singh Conductor and D. W. 4 Krishna Gopal and D. W. 5 Rajendre Saxena two passengers from Hardwar to Hathras were examined in support of the version of the opposite parties that the bus was being driven at a slow speed and the accident took place on account of the buffalo cart having come suddenly on the main road itself.
12. Paper No. 45 Kha is the copy of the report lodged by Raj Kumar Sharma at P. S. Kotwali Dehat Chandpur on 31-3-1977 at 7-00 A.M. It was said that the truck was coming from the opposite direction, that in the meanwhile the buffalo cart came on the main road all of a sudden, that due to the dazzling light of the truck the buffalo cart could not be seen, that the truck dashed against the buffalo cart as a result of which the front show of the bus and both the glasses were damaged, and that the person sitting on the buffalo cart received serious injuries.
13. Paper No. 46 Kha is the report submitted by Raj Kumar Sharma to the Station Incharge, U.P. State Road Transport Corporation, Mathura on 20th April 1977. In this report it was said that the truck was coming from the opposite direction, that the driver of the bus applied dipper for giving a pass, that the driver of the truck should have also applied the dipper, but he did not do so, that in the meantime the buffalo cart came on the main road from the side of patri, that the driver of the bus could not see the buffalo cart in the dazzling light of the truck, that the left part of the bus dashed against the hind part of the buffalo cart and that the person sitting on the buffalo cart fell down and received injuries.
14. Paper No. 4 Kha is the report dated 31st March 1977 made by D. W. 2 Nepal Singh, Bus Conductor to the Station Incharge, U.P. State Road Transport Corporation, Mathura. It was said that a truck was coming from the side of Bulandshahar, that on account of the dazzling light of the truck the bus collided against the buffalo cart, that the conductor was sitting on his seat, that after the accident he saw that the buffalo cart had been upturned and a person was lying on the road and that person received severe injuries.
15. The claimants' version that the bus was being driven at a very fast speed finds support from the evidence that the buffalo cart was dragged along with the bus for about 30 paces. D. W. 1 Raj Kumar Sharma stated that after applying the brakes the bus moved about 5 or 7 yards ahead and then it stopped. D. W. 2 Nepal Singh could not refute that the buffalo cart was dragged for about 30 paces. D. W. 2 Rajendra Saxena stated that when the driver applied the brakes the passengers sitting in the bus struck against each other. The version of P. W. 4 Inayat Ullah Khan that the Bus was being driven at a speed of about 70 or 80 miles (kilometres) appears to be more probable. It is difficult to believe the version of D.W. 2 Nepal Singh that the bus was being driven at a speed of 40 or 45 kilometers. The bus had moved to the left side with a view to make room for the truck to pass safely. The bus was going on a long distance journey and it is a matter of common knowledge that long distance buses move at a faster speed. The driver of the bus could have seen the cart going on the left patri of the road. As a reasonable and prudent person he ought to have slowed the bus. He should have known that his eyes would be dazzled when the truck came near. This is what happened. He could not see the buffalo cart in the dazzling light of the truck. Had he slowed the bus, the accident could have been averted. The version given by the driver and the conductor in the reports dated 31-3-1977 appears No. 45-Kha and 44-Kha--also makes it more probable that the accident should have taken place as said above. The statement of D.W. 5 Rajendra Saxena that at the time of accident two wheels of the truck were on the puckka road and the other two wheels on the kuchcha road falsifies the version of the opposite parties that the accident took place on account of the buffalo cart having suddenly come on the road.
16. D. W. 1 Raj Kumar Sharma set up a new version before the Tribunal when he said the person sitting on the buffalo cart suddenly jumped on the road and this was responsible for the accident. He did not make any such statement earlier.
17. D. W. 2 Nepal Singh was sitting on the conductor's seat at the time of the accident and he told the departmental inquiry that after the accident he saw that a buffalo cart was lying on the road and one person had received injuries. He did not see that after the accident the buffalo cart was dragged for about 30 paces, or that the leg of the buffalo was broken or that the buffalo cart was damaged. It is more probable that he came to know about the accident when the bus was stopped.
18. D. W. 4 Krishna Gopal and D. W. 5. Rajendra Saxena claim to have been travelling on the bus on their way from Hardwar to Hathras. They set up a new version when they said that far from applying the dipper in response to the application of the dipper by the driver of the bus, the driver of the truck opened a third light which completely dazzled the eyes. Both these persons were going on a long distance journey and it is more probable that they should have woken up after the accident. There is no earthly reason that they should have kept awake at about 3.30 A.M. They had to go to Hathras and they were not likely to reach there shortly afterwards. D.W. 4 Krishna Gopal deposed like a partisan person when he stated that the driver of the bus applied brakes, before the bus could stop, it touched the buffalo cart. He gave the speed of the bus at 30 or 35 kilometers D. W. 5 Krishna Gopal stated that the buffalo cart struck against the rear portion of the bus. Had this been so, the front show pieces and the glasses would not have been damaged.
19. The Tribunal has considered the evidence adduced by the parties and has referred to the discrepant statements made by witnesses examined by the parties. It has given good reasons for accepting claimants' version and rejecting the version of the opposite parties. For the reasons given above, we find ourselves in agreement with the findings of the Tribunal and hold that the accident took place due to the rash and negligent driving of the bus by Raj Kumar Sharma.
20. Sri B.D. Madhyan, learned Counsel for the claimants-respondents submitted that the compensation awarded by the Tribunal is much too inadequate. Sri S.K. Sharma, learned Counsel for the appellants assailed the compensation awarded by the Tribunal.
21. The evidence of P. W. 3 Alijan Khan and P. W. 4 Inayat Ullah Khan shows that Talib Khan used to help his father Inayat Ullah Khan in his cultivation. Both these witnesses as well as Srimati Bundo, the widow deposed that Talib Khan used to live separately from his father Inayat Ullah Khan. We may refer to paragraph 2, 3 of the petition in which it was said that Talib Khan used to look after the entire affairs of Inayat Ullah Khan, who is an old and infirm person. According to the averments made in this paragraph Talib Khan actually maintained Inayat Ullah Khan and provided him food, etc. We find it difficult to believe the evidence adduced by the claimants that Talib Khan lived separately from his father. There was no cultivation in the name of Talib Khan. The entire, cultivation was recorded in the name of Inayat Ullah Khan. He deposed that he had about 56 Bighas land. The monthly income of Talib Khan was given as Rs. 500/- in paragraph 6 of the petition P. W. 3 Alijan Khan stated that Talib Khan used to carry on the business of potatos, grain and roree. P. W. 4 Inayat Ullah Khan stated that Talib Khan used to help him cultivation and also used to do business. P.W. 4 Srimati Bundo stated that her husband used to do the business of potatos, grain sarson, gitti and roree. In paragraph 23 of the petition all that was said that Talib Khan used to carry on potato business. There was no reference to any other business. There is no evidence to show that Talib Khan used to take land on rent for sowing potatos and used to sell the same. The statements of P. W. 3 Alijan Khan, P. W. 4 Inayat Ullah Khan and P. W. 5 Smt. Bundo regarding the monthly income of Talib Khan are highly exaggerated and unworthy of reliance. The claimants have failed to prove that Talib Khan had any independent income of his own besides helping his father in cultivation.
22. The evidence, however, shows that Talib Khan was on able bodied person. He was about 32 years old. He was healthy and robust. He was not literate. As enable bodied person he could have earned Rs. 200/- per mensem as a labourer. He may have spent Rs. 50/- per mensen on himself and he could have spared Rs. 150/- per mensem for his dependants. The annual dependancy of the family would come to Rs. 1,800/-. The Tribunal has accepted claimants' version regarding the longevity in the family of Talib Khan being 70 years. Talib Khan could have supported his dependants for another 38 years. The total amount of pecuniary loss to the dependants would come to Rs. 68,400/-. After making a deduction of 33% for lump sum payment, the amount will be reduced by Rs. 22,572/-. The compensation payable will come to Rs. 45,828/-.
23. The Tribunal has not assessed the compensation in a proper and legal manner. In the absence of any evidence, it could not accept claimants' version that the monthly income of Talib Khan Was; Rs. 500/- per mensem. After having determined that the lump sum payable would come to Rs. 91,560/-. it was hardly justified in awarding a sum of Rs. 36,000/- as compensation. We are of the opinion that the Tribunal should have awarded a sum of Rs. 45,828/-as compensation.
24. The appeal is dismissed. The cross objection is partly allowed.
The award passed by the Tribunal is modified. The claimants will get a sum of Rs. 45,828/-. as compensation besides interest @ 6 % per annum from the date of application till the date of payment and the costs of the Tribunal from opposite parties Nos. 1 to 3. The costs of the appeal and the cross objection shall be, however, easy.