K.C. Aggarwal, J.
1. These two connected appeals have been filed Under Section 110-D of the Motor Vehicles Act, against the judgment and award of the Tribunal, dated 9-1-1978, partly allowing the claims petition Nos. 8 and 18 of 1976.
2. Both of these petitions are in respect of the same accident which occurred on 12th October 1975 at about 1.20 p.m. on Bhagat Singh Marg 'X' Block. Govind Nagar, Kanpur resulting in the death of Devendra Kumar and Ram Niwas.
3. Claim petition no. 8 has been preferred by Nirmala Devi, Sunil Kumar, Pradeep Kumar, Kumari Reeti and Kumari Geeta. They filed this petition as the heirs and legal representatives of the deceased Devendra Kumar.
4. Claim petition No. 18 of 1976 has been preferred in respect of the accident resulting in the death of Ram Niwas, by his heirs and legal representatives who were as follows:
1. Smt. Bhagwan Devi, (mother).
2. Smt. Pushpa Devi (widow) since deceased,
3. Manoj (son),
4. Kumari Manjoo, and
5. Kumari Sanjoo, daughters.
5. The claim petition No. 8 was for a sum of Rs. 3,01,00/. whereas the claim petition No. 18 was for Rs. 80,000/-.
6. In claim petition No. 8, the allegations were that on 12th October, 1975 at about 1.20 p.m. when Devendra Kumar Srivastava was going on cycle with his minor son, truck no. U.T.E. 1108, which was being driven by Harbans Singh struck against his cycle. The truck was being driven negligently and rashly as a result Devendra Kumar received serious injuries and succumbed to them.
7. In claim petition No. 18 of 1976, the allegations of a similar nature were that truck No. U.T.E. 1108 was being driven rashly by its driver and that after colliding with the cycle of Devendra Kumar, the truck claimed on the foot path and killed Ram Niwas who was standing on the same.
8. The accident led to the filing of the two claim petitions, details of which have been given in the earlier paragraphs.
9. Both the claim petitions were contested by Ram Prakash, the owner of the truck. He denied that the accident resulted due to the rash and negligent driving of the truck UTE 1108 by its driver Harbans Singh. He pleaded that the accident occurred due to latent defects of brakes. His case was that the brake pipe line suddenly get busted as a result where of the driver could not stop the truck despite hid best efforts.
10. Since the claims arose out of the common accident, the two petitions were consolidated and claim petition No. 8 of 1976 was made the leading case.
11. On the pleadings of the parties, the Motor Claims Tribunal framed the following three issues:
1. Whether Devendra Kumar and Ram Niwas died due to rash and negligent driving of opposite party No. 2 of the vehicle of opposite party No. 17.
2. Whether the claimants are legal representatives of the deceased and are entitled to maintain the claims?
3. To what amount of compensation and from whom are the claimants entitled?
12. On issue no. 1, the Motor Claims Tribunal found that the accident occurred due to rash and negligent driving by the driver of truck No. UTE 1108. On issue No. 2, the findings was that claimants of each one of the two petitions were the heirs and legal representatives and, as such, were entitled to maintain the same. On issue No. 3, the Motor Claims Tribunal allowed compensation in the sum of Rs. 39,550/- in claim No. 8 of 1976 and awarded compensation amounting to Rs. 55,790/- in claim No. 18 of 1976. The Motor Claims Tribunal further bifurcated the amounts payable between Oriental General Insurance Company and the owner of the truck, Ram Prakash and its driver Harbans Singh.
13. Aggrieved by the judgment and award of the Motor Claims Tribunal, these two appeals have been preferred by Ram Prakash, the owner of the truck.
14. Before us in this appeal the first argument of the learned Counsel for the appellant was that the Tribunal committed an error in holding that the accident was due to the negligent and rash driving by Harbans Singh, the driver of truck No. UTE 1108. Counsel urged that it took place at the bursting of the brake pipe line as a result where of although the brake was applied for bringing the truck in control but the attempt failed. This failure, according to the submission of the appellant's learned Counsel, was beyond the control of the driver and contended that it was an act of the God, hence, the appellant Ram Prakash could not be held responsible.
15. For proving that the truck was being driven negligently and rashly by Harbans Singh, the claimants have produced, amongst others, Ram Lotan (PW 5) and Mata Prasad (PW 7). Both of these witnesses have been found to be truthful by the Motor Claims Tribunal. We also have gone through their statements and have nothing to doubt about the correctness of the same.
16. PW 5 Ram Lotan had a Bhujwa shop near the spot. He stated that he was sitting outside his shop when he found the truck in question coming at a High speed from the west. The truck struck the cyclist and then it turned towards right and knocked down a person standing on the foot path. The truck, thereafter, dashed against the shop and fall turtle. He stated that the front right bumper of the truck struck the cyclist. His shop was situated at a distance of 15-20 paces from the place of occurrence where the truck struck the cyclist. From his statement, the fact of the two persons dying on account of the accident with the truck on the 12th October, 1975 is fully established. He deposed that the truck was being driven at a high speed. He had seen the truck coming from the west and found it being run with a high speed. Nothing has been found in the cross-examination of this witness to shake his testimony. He had nothing to gain by the claim petition being allowed. He was also not friendly with the deceased and inimical to the defendant Ram Prakash.
17. Mata Prasad (PW 1) is equally reliable person. He was an employee of the Life Insurance Company. Explaining his presence at the spot at that house, the witness stated that he was preparing for departmental examination and for that purpose he was going on the scooter to his friend when he saw this accident. He stated that the truck was being run as a high speed. The truck sweved towards right struck the cyclist and turned towards the foot path and crushed the person standing on the foot path. His statement about the manner of accident is the same as that of Ram Lotan (PW 5). His cross-examination did not show any thing damaging or unreliable. The statements of these two witnesses establish that in the busy market, the truck was being driven rashly by its driver and that no caution of the situation or the locality had been taken into consideration by its driver. The accident could be only on account of high speed at which the truck was being driven at that time. Had it been within controlled speed, there was no difficult in stopping the truck, as a result where of the driver could save Devendra Kumar by not sticking against his cycle. The facts clearly establish that Harbans Singh had lost complete control of the truck due to the speed at which he was running it. The truck dashed against the cyclist Devendra Kumar and thereafter claimed the foot path and crushed Ram Niwas.
18. Ram Prakash appeared in the witness box himself and produced Ajai Kumar (DW 2) Ajay Kumar came out with a story that in order to save the cyclist, Harbans Singh applied the brake, but as the pipe line on the brake had already bursted, he did not succeed in stopping it. This theory of bursting of pipe line of the brake appears to be an after thought. Ram Prakash (DW 1) has said the same thing as was deposed to by Ajai Kumar (DW 2), Ram Prakash (DW 1) was not admittedly present at the time of accident. He deposed about the brake on the basis of what he found on the next date of the accident on inspection of the truck being made. Ajai Kumar (DW 2) is an unreliable witness. DW 1 Ram Prakash did not bring any convincing evidence for establishing that Ajai Kumar was employed with Ram Prakash. Neither was evidence of any independent witness brought nor any document to prove salary etc Although the evidence of repairing the brake subsequent to the accident was not of much value but even was not brought on record Ram Prakash was an interested witness and Ajai Kumar is wholly unreliable. The evidence of the appellant falls short of establishing his presence at the time of the accident.
19. From what has been said above, it is proved that the accident resulted due to the rash and negligent driving of truck no. UTE 1108 by its driver Harbans Singh, Ram Prakash (DW 1) has failed to produce the driver within whose knowledge the cause of accident was. The explanation of not producing him was that he had gone to Madhya Pradesh and was engaged in service there. Even if it was so he could be brought.
20. Next comes the question of compensation to be awarded to the claimants. The important factor which one should bear in mind is that Under Section 110-A of the Motor Vehicles Act, it is the just compensation which it required to be awarded. In the two claim petitions, the Tribunal has applied the multiplying method and found out the amounts payable to the claimants of the same. In the case of Devendra Kumar Srivastava, the finding Is that he was drawing Rs. 309/- per month when the accident occurred and was 40 years of age. But of Rs. 309/- the Tribunal found that the deceased expended Rs. 103/- for his own personal living expenses. The balance was made a bails figure which was turned into a lump sum by applying the multiplier of 20. Out of this amount, 20% was deducted on account of lump sum payment. The Tribunal arrived at the figure of Rs. 39,550/-. This liability has been bifurcated between the General Insurance Company the appellant. Learned Counsel for the appellant could not suggest any ground on the basis of which we could hold that the compensation awarded is excessive.
21. So far as the other claim petition No. 18 of 1976 is concerned, the total compensation awarded is Rs. 55,790/-. Out of this, the Tribunal has found Rs.4,250/- to be paid by the General Insurance Company and the balance by the appellant Ram Prakash and his driver Harbans Singh. In determining the compensation payable in respect of this deceased also the Tribunal found that he was 40 years of age and could be expected to remain upto the age of 60 years. As a result, the multiplier of 20 was applied to the income which the deceased must have been contributing to the family members, consisting of his mother Bhagwan Dei, wife, son and two daughters at the time of the accident Smt. Pushpa Devi, his widow died during the pendency of the claim petition. On the death of Pushpa Devi, her heirs have been found entitled to receive the same. No illegality has been shown or found in this findings as well.
22. In the result, both the appeals fail and are dismissed with costs.