S.S. Sodhi, J.
1. Sadhu Singh was killed while driving his car CH-1108 when it met with an accident with the bus PNC-1766 near a canal bridge on the Malerkotia-Raikot Road. This happened on February 16, 1974.
2. A claim for campensation arising from the death of Sadhu Singh was put in by his widow Smt. Jasmel Kaur and their minor son Swaranjit Singh and by Smt. Tej Kaur, the mother of Sadhu Singh deceased as also by his sister Joginder Kaur.
3. The Tribunal came to the finding that the accident had taken place due to the rash and negligent driving of the respondent-bus driver and awarded Rs. 82,200/- as compensation to the three claimants namely the mother, widow and minor son of the deceased. The respondent-Raikot Bus Service and the bus driver were held jointly and severally liable for the amount awarded. The respondent-Insurance Company was also held liable, but only to the extent of Rs. 20,000/-.
4. The award of the Tribunal has led to the filing of two appeals one by the Raikot Bus Service, challenging both the findings of negligence recorded against the bus driver as also the amount awarded as compensation while the insurance company in the appeal filed by it sought to question its liability for payment of compensation in this case. The claimants, on the other hand, filed cross-objections in both these appeals seeking enhanced compensation.
5. Taking up the question of negligence, it is the common case of the parties that the accident between the car and the bus did indeed occur and there is also no dispute with regard to the time and place thereof The controversy raised was as to the manner in which it rook place. The claimants clamed it entirely upon the rash and negligent driving of the bus driver. The version of the respondents on the other hand was that the car had come on to the wrong side of the road and hit into the bus and the accident thus took place on account of the fault of the car driver.
6. The claimants examined PW 2 Babu Singh PW 3 Joginer Kaur, PW 4 Gurdev Singh and PW 5 Randev Singh as eye witnesses to the occurrence. PW 3 Joginder Kaur was a passenger in the car involved in the accident and had also suffered injuries. It was the consistent version of all these witnesses that the car had been coming at a slow speed ; whereas the bus came at a very fast speed and hit into the car. PW 4 Gurdev Singh stated that the bus had come on to its extreme right when it hit into the car. There was no challenge in cross examination to this statement. It is pertinent to note that no suggestion was made to any of these witnesses that the car had gone to the wrong side of the road and then the accident took place. The other significant factor to note is that soon after the accident the matter was reported to the police by PW 2 Babu Singh, It was on his statement that the Information Report was recorded on the basis of which a criminal case came to be registered against the bus driver. It is on record that the bus driver has since been convicted for the offence committed by him in causing this accident. Counsel for the respondent-Raikot Bus Service could point to no discrepancy or contradiction to create any doubt in the evidence of these witnesses nor indeed could he suggest any reasons to doubt the presence of these witnesses at the time of the accident.
7. Turning to the evidence led by the respondent the two witnesses examined by them were RW 1. Amar Singh who stated that he happened to be on the road at the time of the accident and RW 2 Gurdial Singh, who claimed that he was travelling in the bus when then accident took place. Both these witnesses no doubt stated that it was the car which bad come at a fast speed and it was on account of the negligence of the car driver that the accident took place, but it is significant to note is that it was for the first time in Court that they had come forth to narrate this version. It is on record that the police had arrived at the scene of occurrence soon after the accident had taken place. Neither of these persons appeared before the police at that time or at any time thereafter. What is more they did not appear as witnesses in the criminal case registered against the bus driver.
8. The conduct of the bus driver has its own tale to tell. It was deposed by all the witnesses examined by the claimants that the bus driver ran away after the accident. According to PW 12 ASI Sarwan Singh who investigated the case, the bus driver was arrested two days after the accident had taken place and above all the fact that needs particular note is that the bus driver was not examined in this case to depose to his version of the accident.
9. The sole reliance of Mr. L.M. Suri, counsel for the Raikot Bus Service was upon the site plan Exhibit PO which suggests that the place of accident was on the wrong side for the car. No reliance can be placed upon this piece of evidence as ASI Sarwan Singh who prepared it did not state at whose instance he had done so nor had any question been asked from any of the witnesses with regard there to.
10. For the reasons set out above, there can be no manner of doubt that the Tribunal rightly came to the finding that the accident in this case had taken place entirely due to rash and negligent driving of the bus driver.
11. Turning now to the compensation payable to the claimants, Mr. L.M. Suri, raided a serious objection to the claimants being awarded compensation for any loss that they may have suffered on account of the deceased running a taxi. He laid great stress upon the fact that in the claim application no mention was made of the deceased plying a taxi or any loss the claimants had suffered on this account. This contention does indeed merit consideration. A reference to the claim application would show that agriculture was the only occupation of the deceased mentioned therein. It was further stated that the deceased was engaged in cultivation of his own land and that he did not pay any income tax being an agriculturist. It was only during evidence that mention was made by some witnesses that the deceased had got a car which he was using as taxi and was earning income from it. It was in this situation that Mr. L.M. Suri contended that no award of compensation could be made to the claimants on this account, In the circumstances this contention must indeed be sustained. The other reason to support this conclusion is the fact that admittedly the car was not registered as a taxi and if at all it was being used as such, it was a use contrary to law and compensation for loss on this account cannot, therefore, be countenanced.
12. The evidence on record shows that Sadhu Singh deceased, owned 100 Bighas of land which he cultivated himself along with his Siris. Conflicting estimates of his income from his land have been given by the witnesses examined in this case. According to PW 13 Jasmail Kaur, claimant, his income used to Rs. 20,000/- per annum from this land. This was also the figure given by PW 7 Surgan Singh and PW 8 Dogar Singh ; whereas PW 6 Ujagar Singh had stated that it was Rs. 10,000/- to Rs. 12,001/- per annum. All the witnesses are consistent in their deposition that as a result of the death of the deceased, the income from agricultural land fell. According to PW 6 Ujagar Singh it had corns down to Rs. 4,000/- while PW 13 Jasmel Kaur as per her testimony put it at Rs. 10,000/-. In other words, the loss of income was between Rs. 6,000/- to Rs. 10,000/- per annum.
13. In assessing agricultural income in the circumstances as exist in the present case exactitude can obviously not be expected. Such income can only be determined on a very rough basis. There can be no manner of doubt that when the deceased was working on the land himself and getting it cultivated with the help of Siris, the income must undoubtedly have been more than now when he is no longer there to cultivate it or to supervise its cultivation and the claimants now get only a share of the produce from persons to whom the land has been given for cultivation of Batai. Even as an agricultural labourer the deceased could have earned at the rate of at least Rs. 300/- per month and in this case same credit has also to be given for the additional income which was available to the claimants by his supervision. On this basis, keeping in view the extent, nature and quality of the land, a fair estimate of the loss of earning of the deceased from the land would be Rs. 600/- per month. From this figure an allowance has to be made for the amount which the deceased would have spent upon himself. In these circumstances, it would be reasonable to take Rs. 400/- per month as the loss suffered by the claimants on account of the death of the deceased. Keeping in view the principles as set out by the Full Bench of this Court in Lachhman Singh v. Gurmit Kaur 1989 PLR 116 would clearly be the appropriate multiplier to adopt in the present case. So computed, the compensation that the claimants must be held entitled to would be Rs. 76,800/-. The compensation awarded to the claimants must consequently be reduced to this extent.
14. The next question which arises for determination here is with regard to the liability of the respondent-Insurance Company. It has come on record that the bus involved in the accident was owned by Bachan Singh. The Insurance policy in the present case stands in the name of Bachan Singh. Bachan Singh had died and consequently his widow Smt. Dhan Kaur and their son Mohinder Singh were impleaded as parties as also the Motor General Financers, New Delhi, the financers of the bus. A plea was no doubt raised by the respondents (other than the respondent-Insurance Company) that the bus had been transferred to the Raikot Bus Service. There is no denial on behalf of the Raikot Bus Service regarding their ownership of the bus and of its having been driven by their employee at the time of the accident. The contention of Mr. V.P. Gandhi, counsel for the respondent-Insurance Company was that the policy of Insurance taken out in this case could ensure only to indemnify the insured namely Bachan Singh and none else. No liability in this case had been fastened upon Bachan Singh and the Insurance Company could not therefore, be held liable.
15. Mr. L.M. Suri, counsel for Raikot Bus Service, on the other hand, sought to contend that the policy of insurance not only covered the insured but also the driver and relying upon New India Assurance Co. Ltd. v. Moti Ram and Ors. 1967 ACJ 312 it was argued that the Insurance Company was liable in the present case. This is a wholly untenable contention. The Insurance Company could have been held liable if it was shown that the driver of the bus had driven it on the orders of the insured or with his permission. No such plea was raised nor indeed can arise in the present case with the insured Bachan Singh having already died and there admittedly being no policy of insurance in respect of the bus in favour of the Raikot Bus Service. The authority cited is thus of no avail in this behalf. The respondent-Insurance Company cannot, therefore, be held liable in the present case.
16. In the result, the amount awarded as compensation is reduced to Rs. 76,800/-. The claimants shall, however, be entitled to the amount awarded along with interest at the rate of 12 per cent for annum from the date of the application to the date of the payment of the amount awarded. Out of the amount awarded a sum of Rs. 15,000/- each shall be payable to the two minor sons of the deceased Rs. 10,000/- to the mother of the deceased and the balance of Smt. Jasmel Kaur the widow of the deceased. The amount payable to the minor claimants shall be paid in such manner as the Tribunal may determine as being in their best interest.
17. In the result, the appeal filed by the Raikot Bus Service is dismissed with costs; while that filed by the respondent-Insurance Company is accepted with costs. Counsel's fee Rs. 300/-. The cross-objections filed by the claimants in both the appeals are hereby dismissed.