1. The accident here took place on the Rohtak Hissar National Highway near the link road to village Bahu-Jamalpur. Tara Chand, deceased, coming on his scooter DLH-9815 from the side of Rohtak had turned to go on to the link road, when the car DLE-4174 came from the opposite direction, that is, from the side of Hissar and hit into the scooter. This happened at about 8 p.m. on Dec. 5, 1979. Tara Chand sustained multiple injuries, as a result of which he died at the Medical College, Rohtak about a fortnight later on Dec. 23, 1979.
2. It was the finding of the Tribunal that this was a case of contributory negligence with both the car driver and the deceased being equally to blame. A sum of Rs. 30,000/- was awarded as compensation to the widow Bhagwani Devi, daughter Kamla Devi and son Rajbir Singh. The claims of the three other sons namely, Ved Bir Singh, Ranbir Singh and I. S. Balhara were, however, dismissed.
3. According to the claimants, the accident had been caused entirely due to the rash and negligent driving of Krishan Kumar, the car driver. It was said that the car was being driven carelessly and at an excessive speed and that without any horn being blown it went on the Kacha path towards village Bahu-Jamalpur and hit into the scooter of the deceased. In other words, the scooter had almost entered the link road when the car struck it.
4. To establish this version, there is the testimony of A. W. 8 Shamsher Singh, who deposed that he was watering his fields about 100 yards away when the accident occurred. He testified to the fast speed of the car and that the deceased was on the kacha portion of the road after having turned towards the link road when the car hit into the scooter. He future deposed that after causing the accident, the car driver fled away.
5. The evidence of A. w. 8 Shamsher Singh called for careful scrutiny as he was a collateral of the deceased and has not been examined by the police during the investigation of the case. In the present case, however, no occasion is provided for doubting his testimony as his presence there has been satisfactorily explained and in his cross-examination there were no contradiction or discrepancies to raise any doubt regarding his credibility.
6. The other person, who had witnessed the occurrence was Zile Singh, on whose statement the First Information Report Exhibit A/4 had been recorded. This Zile Singh had a tea shop nearby. He unfortunately could not be examined as a witness as he died during the pendency of the proceedings before the Tribunal. The First Information Report, however, sets forth a version similar to the one deposed to by A. W. 8 Shamsher Singh.
7. The respondents, no doubt, took the plea that the accident had occurred due to the negligence of the deceased himself as he had suddenly turned towards the right without giving any signal and it was also said that it was the scooter that had struck against the car proceeding on its correct side, but no evidence was led by any of the respondents in support of their case. Even the car driver did not come to the witness box to explain how the accident occurred. In Maya Mukerjee v. Orissa Co-op. Insurance Society Ltd. (now new India Assurance Company Ltd.) 1978 ACJ 292: (Air 1976 Orissa 224), where a similar situation arose the Court rightly observed. 'To determine the question as to who contributed to the happening of the accident, it became relevant to ascertain who was driving his vehicle negligently and rashly and in case both were, who was more responsible for the position and who of the two had the last opportunity to avoid the incident. For a determination of these questions, as to when the respective drivers saw each other for the first time as they were heading to the inter-section; the speed of the respective vehicles, the blowing of the horn; steps taken to control the respective vehicles; care and caution exercised for avoiding the collision et cetera are material features'. These are matters which can best be explained by the drivers of the vehicles concerned and if they chose to keep away from the witness box and that too without really sound reasons, it must indeed be construed as a telling circumstance against them. When a Tribunal is confronted with the vexed controversy of apportioning blame, amongst the two vehicles involved in the accident, it is clearly the duty of both parties to place before it the best evidence available. A party may refrain from doing so, but only on peril of an adverse inference being drawn against it. Such adverse inference cannot, therefore, be avoided against the respondents in this case.
8. There is then the other aspect too that the car driver ran away after the accident, leaving the injured victim unattended and uncared for. This cannot but be taken as a pointer to the guilt of the driver of the vehicle that caused the accident, namely the car driver.
9. Further, the report of the motor mechanic A. W. 6 Devi Duet shows that it was the left front mud-guard of the car and the left mud-guard of the scooter that were damaged in the accident. Such damage is in consonance with the claimants' version that the scooter had almost crossed the road when the car struck into it.
10. This being the situation, the blame for the accident must be fastened wholly upon the car driver. No finding off contributory negligence can, thus, be justified or upheld.
11. Turning to the issue relating to compensation no exception can be taken to the Tribunal dismissing the claim of the three sons of the deceased namely Ranbir Singh, Ved Bir Singh and I.S. Balhara. None of these sons has been shown to have been dependent upon the deceased. They were all adults and employed during the lifetime of the deceased. It is well settled that occasional gifts by parents to grown up children for any special purpose or otherwise does not denote dependency justifying compensation being awarded to such children on this account.
12. As regards the amount payable to the three other claimants namely, the widow, daughter and handicapped son of the deceased, it will be seen that the Tribunal had assessed the loss at Rs. 60,000/-. The Tribunal had arrived at this figure after taking into account both the agricultural income of the deceased as also his income from the brick-klin partnership. What Mr. L. M. Suri, counsel for the claimants sought to question in this behalf was the multiplier taken by the Tribunal in arriving at this figure. The multiplier applied was 6. The contention raised being that as the deceased was 56 years of age the multiplier should have been at least 10.
13. In dealing with this aspect of the matter, however, it deserves note that the claimants did not adduce any evidence to show what happened to the share of the deceased in the brick-klin partnership after his death. It is reasonable to assume that even if the partnership came to an end on the death of the deceased, the capital invested therein must have come to his heirs. How much this was and who inherited it cannot be known from what has come on record. In the absence of these particulars regarding the assets of the deceased no occasion is provided for taking the loss to the claimants to be anything more than the figure of Rs. 60,000/- as determined by the Tribunal.
14. The compensation payable to the three claimants Smt. Bhagwani Devi, Kamla Devi and Rajbir Singh is accordingly hereby enhanced to Rs. 60,000/-. Out of the amount awarded, a sum of Rs. 10,000/- each shall be paid to Kamla Devi and Rajbir Singh and the balance to the widow Smt. Bhagwani Devi. The claimants shall be entitled to the amount awarded along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded.
15. In the result, the appeals filed by the claimants Smt. Bhagwani Devi, Kamala Devi and Rajbir Singh are accepted while those filed by the other claimants are hereby dismissed. In the circumstances there will be no order as to costs.
16. Order accordingly.