V.D. Misra, J.
(1) Dilbagh Rai Chopra has filed this appeal against the judgment and decree of the Subordinate Judge 1st Class, Delhi, dismissing his suit for the recovery of Rs. 25,000.00 as compensation and damages.
(2) Dilbagh Rai Chopra's family consisted of his wife, Vimla Rani aged 25 years, his daughter, Shashi Kiran, aged 7 years and his sons Sunil Kumar and Pravin Kumar aged 5 years and 1 years respectively. On 10th October, 1955, at about 11 A.M. Vimla Rani accompanied by her brother-in-law, Om Prakash Chopra, and her son Pravin Kumar alighted from a bus at Moti Nagar Bus stand, Delhi. As they were crossing the road, Krishan Lal, respondent who was driving truck No. DLC-9039 struck Vimla Rani who fell down and was run over by the truck resulting in her death. Krishan Lal ran away from the place of accident leaving the truck behind, Om Prakash Chopra removed Vimla Rani to the Hospital and thereafter reported the matter to the police. A case under section 304-A. Indian Penal Code ., was registered and after completing the investigation, Krishan Lal was challaned under section 304-A, J.P.C.. and was, later, on convicted and sentenced. The truck in question was alleged to be owned by M/s. Parma Nand & Sens, respondent. No. 2, and was insured for third party risks with the Premier Life and General Insurance Co., Ltd., respondent No. 3. Dilbagh Rai Chopra filed a suit in forma-paupris against the respondents claiming damages in the sum of Rs. 25,000.00 for the loss caused by the rash and negligent act of Krishan Lal, respondent. This claim was made for the benefit of and on behalf of Dilbagh R.ai Chopra and the other dependants of Vimla Rani deceased under the Fatal Accidents Act (Act No. Xiii of 1855). It was alleged that Vimla Rani at the time of her death was only 25 years of age in perfectly sound health and was earning about Rs. 100.00 a month by stitching clothes and doing embroidery work. Respondent No. 2 in their written statement denied that the truck in question belonged to them and also denied that Krishan Lal was their driver. It was alleged that the truck was the property of M/s Harnam Singh Bansi Lal of Delhi who were running the same on the permit of respondent No. 2 and that Krishan Lal was the driver of the said M/s Harnam Singh Bansi Lal. They also showed ignorance about the fact whether the truck was insured against third party risks with respondent No. 3 and alleged that, in any case, they did not get it insured. It was also denied that Krishan Lal, respondent was driving the truck, at the relevant time, rashly or negligently or had caused the accident as alleged by the plaintiff. They also denied that Vimla Rani was doing any tailoring or embroidery work as alleged or was earning any amount by doing that work, and finally denied their liability. Respondent No. 3 in their written statement denied their liability and the allegations of the plaintiff and further alleged that the truck in question was insured with them by one Mohan Lal Oberoi of Moti Nagar, Delhi, who transferred the same to M/s Mehta Goods Carriers Limited on 9th August, 1955 without transferring the insurance in the latter's favor. It was further alleged that on 24th August, 1955, M/s Mehta Goods Carriers Limited transferred the truck to M/s Parma Nand & Sons, respondent No. 2, and the truck was being used without the insurance being transferred to M/s Parma Nand & Sons. It was further alleged that after the accident and in order to avoid their liability, respondent No. 2 by making false representation and concealing information about the accident, got a certificate of insurance in their name from the representative of respondent No. 3 in the evening of 10th October, 1955. They denied their liability by alleging that at the time of accident, the truck was not insured in the name of respondent No. 2.
(3) Respondent No. 1 was proceeded against ex-parte as he did not come forward to contest his liability.
ONthe pleadings of the parties, the following issues were framed on 16th January, 1951 :- (i) Whether defendant No. 2 was holding a valid certificate of insurance at the time of the accident regarding the truck in question (ii) If so, did defendant. No. 2 obtain the certificate by false representation by concealing the fact of accident. If so, its effect (iii) Did defendant No. 2 contravene the terms of the alleged policy of issurance as stated in para No. 19 to the written statement of defendant No. 3 and if so, its effect (iv) Whether the truck in question belonged to defendant No. 2 (v) Is the plaintiff entitled to any damages, and if so, what amount and against whom ?
(4) The following additional issues were framed on 3rd June, 1961 :-
(I)Whether the plaintiff's wife died as a result of accident due to rash and negligent driving of defendant No. 1 as given in the plaint (ii) Whether at the time of accident in question defendant No. 1 was an employee of defendant No. 2 and the accident took place during the course of employment (iii) If issue No. 5 framed on 16-1-1951 is found infavor of the plaintiff, what are the shares of the plaintiff and the heirs of the deceased given in para 9 of the plaint
After recording the evidence of the parties and hearing them the trial Court held that Vimla Rani died as a result of accident with the truck but further held that it could not be proved that the same was driven by Krishan Lal, respondent at the time of the accident. It was, however, held that respondent No. 2 was the owner of the truck but that Krishan Lal, respondent was not their employee at that time. Respondent No. 3 were held not to be liable since they had not insured the truck in favor of respondent No. 2 at the time of the accident. It was also held that Vimla Rani was not earning any amount as alleged by the plaintiff and as such the plaintiff was not entitled to damages.
(5) The learned counsel for respondent No. 2 contended that the latter were not the owner of the truck at the time of the accident. In this connection, we have been taken through the statements of Ganeshi Lal, Public Witness 6, Surjit Singh, Sub-Inspector, Public Witness 8, and Kewal Krishan D.W. 4. Ganeshi Lal is a Clerk of the Transport Registration Authority, Delhi and had stated on the basis of records of Registration Authority that the truck in question was transferred by Mohan Lal Oberoi on 9th August, 1955 to M/s Mehta Goods Carriers Limited who had in turn transferred the same to respondent No. 2 on 24th August, 1955. It was then transferred to M/s Harnam Singh Bansi Lal on 11th August, 1956. Kewal Krishan, D.W. 4, is a representative of respondent No. 3 and he deposed in detail as to how the truck in question was insured by them in the name of various persons. This truck was insured for the first time by respondent No. 3 on 12th July, 1955, in the name of Mohan Lal Oberoi who had got a duplicate insurance certificate issued on the 1st August, 1955 since the original was lost. On 10th October, 1955, i.e., the date of accident, the certificate of insurance was changed to the name of respondent No. 2. The proposal form was filled in by one Bansi Lal who represented himself as a representative of M/s Parma Nand & Sons. This was done, according to this witness, at about 4 P.M. that day. When cross-examined, this witness stated that he had not noted the time when the certificate of insurance was issued and that he had not inspected the vehicle before issuing the certificate in spite of the fact that the rules require such inspection. There is no document on the record of this case to show that the certificate of insurance was issued at 4 P.M. as alleged by this witness. He admittedly had violated the rules by not inspecting the vehicle before issuing the certificate. He is an interested person and it is not safe to rely on his oral testimony that the certificate of insurance was issued at 4 P.M. and not earlier in the day before the accident took place.
(6) Ganeshi Lal has categorically stated that this truck had been transferred to the name of respondent No. 2 as far back as 24th August, 1955 and the defense of respondent No. 2 that they were not the owner of this truck and it had been transferred to their name by somebody with out their authority is not believable. Had this been the case, they would have cross-examined this witness with respect to the records which he had brought in Court to show that the application of transfer was not signed by Bansi Lal, representative of respondent No. 2. The evidence of Ganeshi Lal by itself is sufficient to show that respondent No. 2 were the owners of the truck. They had got the insurance transferred on 10th October, 1955, which happened to be the day when the accident took place. The learned counsel for respondent No. 2 referred to the statement of Surjit Singh, Sub-Inspector of Police who investigated the criminal case against respondent No. 1 and wanted to take advantage of his statement to the effect that the truck was handed over to one Harnam Singh s/o Sant Singh r/o E-6, Moti Nagar, on superdari. From this an attempt was made to show that in fact Harnam Singh was the owner and not respondent No. 2. His statement does not show the date on which this vehicle was handed over to Harnam Singh on superdari to whom the truck was ultimately transferred on the 11th August, 1956. Moreover, the fact of handing over the truck on superdari to a person, will not by itself prove that that person was the owner of the same. Parma Nand who appeared as D. 2 W. 3 deposed that he never purchased any truck but was in possession of a permit which he had given to Goverdhan Dass for plying the truck. Thereafter, he had given this permit to M/s Harnam Singh Bansi Lal. He neither produced that permit himself nor summoned Harnam Singh to produce the same. The permit, if produced, would have shown to whom it was granted and would have also shown the other circumstances under which trucks could be plied under that permit. A presumption is to be drawn against this respondent that this permit would not have supported him in his contention that the truck in question did not belong to him. We, thereforee, agree with the trial Court that respondent No. 2 was the owner of the truck in question.
(7) The next contention of respondent No. 2 is that Krishan Lal, respondent was not driving the truck at the time of accident. Advantage is sought to be taken of the fact that the first information report lodged immeciately after the accident by Om Prakash Chopra, Public Witness , does not mention the name of the driver, 0m Prakash has deposed that the driver had run away immediately after the accident and that he had taken part in identification parade and had correctly identified Krishan Lal, respondent as the driver of the truck at the time of accident. This identification parade was held before the Magistrate. He was not cross-examined on this aspect and no suggestion was made to him that he had not seen the driver immediately after the accident or that he had not taken part in the identification parade held by the Magistrate. He was also not cross-examined with reference to the absence of the name of the driver in the first information report lodged by him. Krishan Lal could not have possibly given the name and address of the driver since the latter had immediately run away after the accident and he was not known to the witness previously. It is to meet such a contingency that an identification parade is held by the Magistrate and this is the only method by which it can be made sure that the witness had correctly identified the person as the one referred to by him. The trial Court did not take into consideration the above-mentioned evidence while holding that respondent No. 1 was not driving the truck in question at the relevant time. Moreover, we do not see why Krishan Lal, Public Witness 14, Ram Lal, Public Witness 16, Jasbir Singh P.W. and Om Prakash, Public Witness 19, should not be believed when they deposed that Parma Nand had approached them with Krishan Lal, respondent immediately after the accident and Parma Nand had requested them that Krishan Lal was a Brahmin who was working as a driver for him and that the accident had taken place because of his mistake and they should not depose against him. The only reason why the trial Court refused to believe this part of the evidence is that this was not pleaded as such by the plaintiff in the plaint and also because Om Parkash had not deposed about it at the time of his previous statement. The additional issues were framed after Om Parkash had already been examined and it was in connection with the additional issues regarding respondent No. 1 being in the employ of respondent No. 2 that this evidence was produced. In our opinion, there is nothing to show that the witnesses were telling a lie. It is not unnatural that shortly after the accident the driver Krishan Lal and his employer Parma Nand would have tried to win over the witnesses to escape imprisonment in the criminal case. We find that Jasbir Singh, Public Witness , was not, at all, crossexamined on 7th August, 1961. Sunder Das, Public Witness , was also not cross-examined with respect to this aspect of his statement. Parma Nand when he appeared as D2 W3 on 16th August, 1961, after the plaintiff had closed his evidence, only deposed that he never met Dilbagh Rai, plaintiff. He did not depose that he had never approached Sunder Dass, Jasbir Singh and Krishan Lal, Public Witness 14, Ram Lal and Om Parkash with respondent No. 1.
(8) In view of the above discussion we are of the opinion that not only was the truck being driven by Krishan Lal, respondent at the time of the accident but also that he was in the employ of respondent No. 2. We have already held that respondent No. 2 was the owner of the truck and in case the truck was driven by somebody else, it was for him to state to whom the truck had been entrusted at about the crucial time.
(9) As regards the proof of negligence or rashness of Krishan Lal, respondent at the time of accident, statements of Jasbir Singh, Public Witness 10, Om Parkash Public Witness 9 have been referred to show that these do not show any negligence or rashness, Om Parkash, P.W. 9, was accompanying the deceased at the time of the accident and he has deposed that the truck was going at high speed and it had hit the deceased while she was crossing the road. The wheel over which the driver has his seat, was the wheel which had struck the deceased. She had been over run by the truck. Jasbir Singh, Public Witness 10, on 4th September, 1958, deposed about the details of the accident. He has a shop opposite to the bus stand across the road. He had seen the deceased getting down from the bus and being hit by the truck while crossing the road. No suggestion was made in cross-examination to discredit the statement of this witness. Surjit Singh Sub-Inspector of Police had recorded the dying declaration of Vimla Rani deceased (Ex. P.W. 5/1) she had stated therein that while she was crossing the road, she had been hit by the truck and had been run over. The truck was at a high speed and she did not hear any horn being given by it. When she started crossing the road, she had found the truck at a long distance from her. The above evidence shows that the truck was being driven at a high speed and also that the accident had taken place because of the negligence and rashness of the driver. It is the duty of a driver of a motor vehicle to be extra-cautious while passing a bus stand since it is but natural that persons would be alighting from the bus and would be crossing the road from that point. This evidence has been believed by the trial Court and we see no reason to differ from him and we hold that the accident took place because of rash and negligent driving by the respondent Krishan Lal.
(10) The next question which arises for consideration is regarding the liability of respondent No. 3. Kewal Krishan has appeared as D.W. 4 on behalf of respondent No. 3. His evidence has already been discussed in detail by us. We have disbelieved that part of the statement wherein he deposed that the certificate of insurance was issued by the company in the name of respondent No. 2 at about 4 P.M. on 10th October, 1955, the date of the accident. We have already held that the insurance certificate had been issued earlier in the day before the time of the accident and that this witness was deposing falsely in order to save the Insurance Company of the liability. The trial Court had taken into consideration the fact that the said certificate of insurance issued to Parma Nand was entered at Seriall No. 16 on 10th October, 1955. From this fact it was concluded that some time must have elapsed in filling the proposal form and this must have been issued after the accident in question. He had also taken into consideration the fact that the proposal form filled in by Bansi Lal gives the time as 4 P.M. This proposal form doss not form part of the paper book got prepared by the respondent nor is there any document in the paper book of this case to show that the certificate issued to Parma Nand was entered at Seriall No. 16 on that day. There is nothing on record to show that time has to be mentioned in the proposal form. Even if time has been found mentioned in the proposal form when there was no need to do so, it only shows the attempt made by respondent No. 3 to disown their responsibility. We have already disbelieved the statement of Kewal Krishan on this aspect. We, thereforee, bold that the certificate of insurance was issued earlier in the day.
(11) The last question to be decided is with respect to the loss suffered by the plaintiff personally and the loss suffered by the minor children. As regards the earning capacity of the deceased the plaintiff had, in addition to his own statement, produced Bahadur Chand, Public Witness 4, and Banarsi Dass Public Witness 5. Bahadur Chand had stated that the deceased used to do sewing work and used to earn three to four rupees a day. He also stated that his wife used to get his clothes stitched by the deceased. There was no cross-examination of this witness to suggest that the deceased did not know sewing or was not doing that work. Similarly, Banarsi Dass had deposed that the plaintiff was living near his house and that the deceased used to sew clothes. He had got clothes stitched by her in the marriage of his daughter. He had also got golden thread and golden lace work done by her. The evidence of this witness has been attacked on the ground that he did not maintain any accounts and should not be believed. Simply because a person had not maintained his accounts of the money spent by him in respect of the marriage of his daughter, is no ground for disbelieving him. This witness has categorically stated that he had paid sewing charges to the deceased and we see no reason to disbelieve him. The trial Court disbelieved the statement of Bahadur Chand, Public Witness , on the ground that his wife was the proper person who should have been examined by the plaintiff and Bahadur Chand could not possibly depose about the deceased knowing sewing. We do not agree with him. The nonproduction of the wife of Bahadur Chand does not take away the weight of evidence of this witness regarding the fact that deceased knew sewing and used to do that work. No reason has been given by the trial Court for disbelieving Banarsi Dass who had paid the sewing charges himself and had got the clothes stitched by the deceased. The plaintiff himself has deposed that he had only one room and one kitchen with him and his family consisted of his wife and three minor children. In that very room the wife was carrying on her sewing and embroidery work and that the deceased was educated up to middle standard. She used to earn from Rs. 90.00 to Rs. 110.00 per month from that work. His statement has been disbelieved by the trial Court only because he did not produce the person to whom the sewing machine had been sold after the death of the deceased. This itself is no reason to disbelieve his statement. Dilbagh Rai has categorically stated that the sewing machine was purchased by him while he was in Pakistan and had brought the same to Delhi after partition of the country. The respondents produced Mala Ram, D2 W1. to show that the deceased did not know tailoring. This witness is a hawker and used to live in the neighborhood of the deceased when she was living in Karol Bagh. According to him, he had never seen her tailoring. The next witness is Jai Wanti D. 2 W. 2, who also used to live near the house of the deceased in Karol Bagh. She has deposed that the deceased had come to her for getting her clothes stitched once or twice. She has stated in her cross-examination that she never went to the house of the deceased. An effort was made to show by this evidence that the deceased did not know tailoring. Simply because Mala Ram did not see her tailoring at any time, does not mean that the deceased did not know tailoring or was not doing this work. Jai Wanti never went to the house of the deceased and simply because once or twice she got her clothes stitched from this witness, is no ground to hold that the deceased did not know tailoring. Many a time a person who knows tailoring goes to another tailor for various reasons including the fact that the other may be a better one. These witnesses have not been believed by the trial Court though for different reasons. We are of the opinion that the deceased knew tailoring and was doing tailoring and embroidery work and used to earn about Rs. 100.00 a month from that work.
(12) She has been rendering service not only to Dilbagh Rai but also to her minor children. She was an educated lady and was doing the household work. Dilbagh Rai had not engaged any servant for himself or for the children because of the service rendered by the deceased to them. The learned counsel has referred to Joginder Kaur v. Punjab State 1969 PLR85, Hira Lal and another v. State of Punjab , and Dr. Ram Soran v. Smt. Shakuntali Rai A.I.R. 1961 Pun 400 in support of his argument that under the Fatal Accident Act it has to be presumed that pecuniary benefit did follow from the deceased and it was not necessary to prove that the deceased was, in fact, earning any amount and that the services rendered by the deceased can be evaluated in terms of money. In Joginder Kaur's case, the appellant's son aged nine years had been killed in an accident. Repelling the contention of the respondents that no damages can be awarded to the appellant since no pecuniary loss had been established, it was held :-
'THATthe basic rule to entitle the relations of the deceased in their own right to recover damages under the law is that the deceased must be capable of giving pecuniary advantage to such relations. It is preposterous to suggest that there can normally be a person whether a child or a grown up, from whom no reasonable expectations of any pecuniary advantage can ever be had. The law could not be so illogical or cruel as to give immunity against any damages when a child who is not school going and belongs to a humble family in society is killed as a result of a tortious act like rash and negligent driving. It may be that difficulties arise in determining the quantum of damages, but not that no damages are to be awarded at all when the child is not shown to be giving any pecuniary benefit to the designated relation or relations. There is always expectancy of pecuniary benefit for the parents of a child, whatever the status or vocation of the family be and whether the child is on way to a certain career or not. An element of speculation in assessing the amount of damages will surely creep in, but the fact remains that liability to pay damages is always there. There are large number of factors to be considered in assessing the amount of damages and immediate pecuniary benefit is just one of them'.
(13) In Hira Lal's case, appellant's son aged about twelve years died of electrocution by a live wire lying on the footpath. After exhaustively dealing with the English and Indian Law, it was observed-
'THEbasic rule to which the English statute and the Indian Act, subscribe is, that the designated beneficiaries are entitled to compensation for a pecuniary or a material loss, resulted from the death of a person, from whom there was areasonable expectation of monetary benefit, assistance or support of which the claimant has been deprived by the death'.
'IThas to be a reasonable expectation not a mere speculative possibility. Pecuniary loss is either an actual financial benefit of which the plaintiff had in fact been deprived or what may reasonably have been expected in future. Legal liability alone is not the yardstick for granting damages. The reasonable expectation in view of the relationship between the deceased and the survivors forms equally a good foundation for such a claim and if such expectations have been disappointed, the law will grant damages'.
'THEpecuniary advantage need not be in the form of cash or goods, as service rendered by the deceased, will be deemed of equal value'.
(14) Ram Saran's case also approached the question on the lines of the previous two cases.
(15) In the instant case the wife was looking after the whole family and was also doing household work for the benefit of the claimants. The claimants are entitled to compensation for monetary loss incurred by the loss of these services which were rendered gratuitously and also because there was a reasonable prospect of their being rendered freely in the future but for the death of Vimla Rani.
(16) While assessing the loss it is necessary to have regard to the age, bodily health, possibility of pre-mature determination of life, amounts usually spent for the maintenance, acceleration of interest, possibility of the claimants dying before the deceased and also the possibility of the husband remarrying. Vimla Rani was aged 25 years at the time of her death, and was said to be in good bodily health. Normally, she would have lived up to 65 years. She was earning about Rs. 100.00 per month from her sewing and embroidery work. She must have been spending at least Rs. 25.00 a month on the claimants. The services rendered gratuitously would, in terms of money value, come to about Rs. 25.00 per month. Because of this claimant's loss was Rs. 50.00 per month. We have also to keep in view the fact that the daughter, who was aged 7 years at the time of the accident, would get married in the normal circumstances by the age of 20 years. Similarly, the sons Sunil Kumar and Pravin Kumar aged 5 years and 1 years respectively at the time of the death of Vimla Rani, would not only get married by the age of 20 years but would also be earning themselves. From this point of view, the benefit to the daughter would be for 13 years whereas it would be for 15 years and 19 years respectively for the above named sons. Her contribution to the claimants from earnings would be about Rs. 8,000.00. Because of acceleration of interest, we would award Rs. 6,000.00. For services rendered to the claimants gratuitously, we would award another sum of Rs. 6,000.00. Out of these twelve thousand, two thousand would be paid to the daughter, three thousand to Sunil Kumar, four thousand to Parvin Kumar and the remaining sum of three thousand to Dilbagh Rai.
(17) In the result, the appeal is allowed and the decree of the trial Court is set aside and the plaintiff appellant's suit is decreed for Rs. 12,000.00 with costs. The court-fee payable by the plaintiff- appellant in the trial Court as well as in the High Court shall be payable by the defendants-respondents.