Sultan Singh, J.
(1) Ramlal son of Narain Singh, aged 40 years resident of J. J. Colony, Tigri, Khanpur, New Delhi met with a fatal accident on the afternoon of 21st October, 1979 near Khanpur-Delhi Road Turn at Mehrauli Badarpur Road, New Delhi. Smt. Prabhati, widow respondent No. 1, Smt. Chandri Devi, mother-respondent No. 3; Shankar Lal, son and Smt. Bhori Devi, daughter from his first wife, respondents 2 and 4, Mona Devi. Manohar Devi, Ghota Devi, Prem Nath and Dina Nath, minor children-respondents 5 to 9 filed an Application under Section 110-A of the Motor Vehicles Act, 1939 claiming compensation Rs. 1,80,000 on account of fatal injury sustained by Ram Lal. The respondents in their claim petition have alleged that Ram LaL The respondents in their claim petition have alleged that Ram Lal met with fatal accident on 21st October, 1979 at about 3 P.M.; the driver of the Bus No. 2322 hit the deceased who was standing with his friend Bangru Lal at the road berm (kaccha); the deceased was hit by the bus, he was thrown ahead and thereafter was run over by the bus; the driver ran away from the site; the deceased was taken to All India Institute of Medical Sciences, New Delhi but he was declared dead. Mahipalpur Co-Operative Society Ltd., appellant No. 1 is the owner of the bus while Hari Ram, appellant No. 2 was driving the bus. Oriental Fire & General Insurance Co. Ltd., appellant No. 3 is the insurer of the said vehicle.
(2) The appellants contested the claim. Their defense was that the deceased was a passenger traveling in the bus in (question from Badarpur to Khanpur and when the bus reached near Khanpur bus stop, he jumped out without waiting for the bus to stop and thus the accident occurred due to negligence: of the deceased and the appellants ware not at ail liable for any compensation. The 'Motor Accident Claims Tribunal has that the respondents are heirs and legal representatives of the deceased Ram Lal. the accident resulting in his death took place due; to lash and negligent driving of the bus Dep 2322 by Hari Ram, Driver (R.W. 1); the deceased Ram Lal had not jumped of the bus, but was hit by the and thereafter ran over under the rear wheel. The Tribunal has further held that the minimum income of the deceased was Rs. 800 per month. By applying a multiplier of 15 the Tribunal awarded a sum of Rs. 81,700 as complementation after excluding 1/3rd salary for his personal expenses and 15 per cent deduction on account of lumpsum payment; and the maximum liability of the insurer has been held to be Rs. 50,000. The Tribunal directed the appellants to deposit the compensation amount within three months failing which it awarded [email protected] 6 percent per annum from the date of the award till realisation.
(3) The appellants have filed this appeal claiming dismissal of the compensation application and the respondents have filed cross-objections claiming enhancement of compensation as claimed in theirs application, Leased counsel for the appellants submits that the. accident was not caused on account of rash or negligent act of the driver of the bus; that the deceased jumped out of the bus as soon as it reached near .Khanpur bus stand without waiting for the bus to stop and thus the deceased himself was responsible for his death. Learned counsel for the respondents on the other hand submits that Ram Lal died due to injuries sustained by him on account of the rash and negligent driving by Hari Ram driver, that the bus first hit the deceased and then he was run over by the bus. He submits that the respondents arc entitled to compensation Rs. 1,80,000 with interest at 12 per cent per annum and there should be no deduction on account of lump sum payment; that the Tribunal erred in deducting 1/3rd amount of the salary as personal expenses. Two questions arise in this appeal :
1. Whether the accident took place on account of rash and negligent driving or the deceased Ram Lal' Jumped out of the bus and died ?
2.If Ram Lal died on account of rash and negligent driving, what is the .just compensation payable to the respondents ?
(4) Bajrang Lal, who is also known as Bangru, Public Witness 6 is an eye witness in the case. He has deposed that on 21st October, 1979 at about 2.15'2.30 P.M. he was at his home; he proceeded to Khanpur market for domestic purchases at a distance of two furlong from his residence; he met the deceased Ram Lal while getting out of his gate; the deceased enquired him as to where he was going; he told him that he was going to Khanpur Market; the deceased accompanied him since he also had to buy sweets on account of Goverdhan Day: thereafter he and the deceased walked towards Khanpur market, he purchased bidis and the deceased was waiting for him at the road berm in the Katcha, and prior to this both were walking in katcha: he saw the bus coming at a reckless speed; the bus hit the deceased with its left side; the deceased was thrown ahead about 4 to 5 yards and the rear wheel of the bus then ran over him; the bus stopped after covering some distance; the people gathered around the bus; the driver ran away after abandoning the bus; the deceased had received injuries on the stomach and thigh and he was bleeding profusely; someone informed the police control room; the police arrived at the spot; in the meantime the wife and some of the deceased also arrived at the spot after being informed that the deceased was being removed to All India Institute of Medical Sciences in the police vehicle; he accompanied the deceased in the police vehicle, with the son of the deceased; Ram Lal was declared dead by the doctors at the All India Institute of Medical Sciences; the accident was caused solely due to rash and reckless driving of the driver who was driving the bus at a speed of 80 to 90 kms per hour. in cross-examination he has stated that the date of accident was a holiday and they had not gone for work; the accident took place when they were going to the market and they were on the left aide of the road. The witness denied the suggestions that the deceased was traveling in the bus that he jumped out of the bus at Deoli road turn and that he was responsible for his death. He admitted that they knew each other as they were working in the same firm but both were not intimate. He has further deposed that F.I.R. was registered on the basis of his statement.
(5) Ram Lal son of Gobind Ram Public Witness 5 has deposed that he had seen the bus Dep 2322 corning at a very fast speed, that the bus had stopped suddenly when he heard cries 'Hai. Hai'.
(6) Dr. L. Fimate, Public Witness 4 of the All India Institute of Medical Science brought the post-mortem register containing postmortem report No. 863179. He has deposed that he conducted the postmortem on the body of the deceased Ram Lal son of Shri Naraia Singh, aged 40 years, that the body was identified by Tej Ram and police constable Roop Singh. The doctor witness found the following injuries on the dead body of the deceased :
1.Laceration of scrotum on the left side with testis exposed.
2.Laceration of scrotum on the right side with testis exposed.
3.Multiple abrasion medial aspect of right knee.
4.Laceration lateral aspect of right knec.
5.Multiple contusions medial aspect of left thigh.,
6.Contusion left inguinal region.
7.Contusion right leg.
8.Fracture left femur upper l/3rd.
This witness has further deposed that the death was due to shock as a result of fracture of femur and multiple injuries the injuries were ante-mortem in nature and could be caused by a road side vehicular accident; there were no tyre marks. Ob the dead body of the deceased; the injuries could be caused by being run over by a vehicle, and in his opinion such injuries could not be caused by falling from the bus while alighting down.
(7) The appellants have produced Hari Ram Driver R.W. 1, Rajbir, Conductor R.W. 2, Daya Ram, Checker, R.W. 3. These witnesses have deposed that when the bus reached Deomor Khanpur, it was driving at a speed of 15/20 Km per hour; the deceased RamLal had boarded the bus from Badarpur flats; he was standing near the gate in the bus; he was warned not to stand at the gate and to come and sit on the vacant seat but the deceased did not agree; when the bus reach Deoli and which is at a distance of 400/500 yards from Khanpur Bus stop, the deceased opened the gate and jumped out of the bus; there was no negligence on the part of the driver. It is admitted that the driver was arrested and prosecuted by the police. 'The witness denied the suggestion that the deceased was standing along with his friend on the katcha on left side and the driver was driving the bus at a fast speed and struck against the deceased.
(8) Reading the evidence of these witnesses as a whole I am of the opinion that the deceased Ram Lal and Bajrang Lal, P.W. 6 were on the left side of the road, when the accident took place, the bus had come at a reckless speed without blowing any horn and hit the deceased who was thrown ahead and then run over by the rear wheel' of the bus. Bajrang Lal Public Witness 6 is an eye witness. His testimony has not been shaken in the cross-examination. He is trustworthy and truthful in establishing the fact of the accident due to rash and negligent driving on the part of the driver of the bus. The doctor Public Witness 4 who conducted post-mortem has given the opinion that injuries on the body of the deceased could be caused by being run over by a vehicle and not by falling from the bus. Further according to the written statement the bus was near Khanpur bus stop when the deceased jumped out of the bus. The witnesses produced by the appellants however have deposed that there was no bus stop at Deoli mor and the Khanpur bus stop is at a distance of about 400 yards from Deoli mor, and when the bus reached Deoli mor the deceased jumped out of the bus. There is no pleading in. the written statement that the deceased jumped out of the bus near Deoli mor. It is, thereforee, apparent that the evidence on behalf of the appellants is beyond the case set up in the written statement. No amount of evidence can be looked into on a plea which has not been pleaded. All the three witnesses moreover are interested witnesses being employees of the owner of the bus. The story set up by the appellants is not believable. Admittedly there were about 50 persons in the bus at the time of accident but not a single passenger has been produced. The driver after the accident also ran away abandoning the bus.
(9) Learned counsel for the appellants submits that the opinion of Dr. L. Fimate Public Witness 4 is not reliable as he has not given his professional qualification and he was not in a position to say definitely which part of the body of the deceased was run over by the bus. He further submits that if the bus had run over the body of the deceased the following consequences would flow from it :
(A)Tyre marks must be apparent on the body of the deceased;
(B)Soft tissue .of both thighs must have been, crushed to form pulpy material;
(C)Compound or multiples fracture of pelvis bonds.
(D)Multiple fracture 'of both the thigh bones.
(E)Rupture of the intestine liver; kidney and bidder coupled with contusions and laceration of these organs.
This argument has no substance. The appellants have not produced any medical evidence. The doctor who performed the post-mortem has deposed that these injuries could be caused on account of the vehicle being run over the body. The doctor P.W. 4 vis a junior Resident doctor of the All India Institute of Medical Sciences. It cannot be assumed for a moment that he was incapable of conducting post-mortise or was not a qualified doctor. No such suggestion was put to him in cross-examination. The absence of the tyre marts on the dead body does not mean that the deceased was not run over by the bus. In the opinion of the doctor the injuries caused to the deceased could not he caused by his falling from the bus while alighting down and that the deceased could have received more injuries than those recorded he being run over by the. bus. Thus it cannot be said that the deceased was not run over by the bus. The extent of the injuries such as laceration of scrotum on both sides with testis exposed suggests that these could be caused by being run over by. a vehicle, and not by jumping from the bus.
(10) Learned counsel further submits that Bajrang Lat P. W. 6 should not be believed that he is a planted and an interested witness as he was working under the deceased; his deposition is contrary to the pleadings and the F.I.R. There is no suggestion to Bajrang Lal, Public Witness 6 that he was not present at the site of accident. R.W. 1, R.W. 2 and R.W. 3 the three witnesses of the appellants also du not suggest absence of Bajrang Lal from the site of accident. Further, Bajrang Lal is not an interested witness. . He happens only to be. one of the persons working under the supervision of the deceased Ram Lal. There is no inconsistency between the pleading and his statemeat. The pleadings of the respondents narrate about the fact of the accident as they came to know later on. They were themselves not present at the time. of accident. It was Bajrang Lal Public Witness 6 who had witnessed the accident. Bajrang L.al made the F.IR. to the police. The police constable produced the- record but the F.I.R. was not got proved on, record. I have gone through the F.I.R. I do not find any inconsistency. In any case Bajrang Lal Public Witness 6 was not cross-examined as regards his previous statement contained in the F.I.R. If the appellants had intended to contradict him with the contents of the F.I.R. they ought to have drawn his attention to those parts of the F.I.R. which were according to them Contrary to his statement as a witness. F.I.R. is not a substantive piece of evidence. Any statement made therein can only be used for the purpose of contradicting and discrediting the witness within the meaning of Section 145 of the Evidence Act, Section 4 Hasib vs . The Stare of Bihar : 1972CriLJ233 , Nanhku Singh vs . The State of Bihar : 1972CriLJ1204 and Shankar vs . State of U.P. : AIR1975SC757 . The appellants have failed to confront Bajrang Lal with any portion of the FIR.
(11) Learned counsel for the appellants next submits that the Investigation Officer has not been produced, and the appellants had no opportunity to cross-examine him and as such adverse inference should be drawn against the respondents. From the record it is apparent that summons was served upon the Investigating Officer for 16th September, 1981 but be was absent and thereafter he had gone to Phillaur on account of his training. He was not expected to come to Delhi in the near future. The trial court thereforee did not wait for him. Absence . of the investigating officer cannot prejudice the case of the respondents.
(12) It is also submitted by the learned counsel for the appellants that Ram Chander was mentioned as one of the witnesses in the F.I.R. recorded at the instance of Bajrang Lal, Public Witness 6 bat he has not been produced. He further submits that the shopkeepers in the .area have also not been produced and thereforee adverse inference should be drawn against the respondents. His submission is devoid of any force. The shopkeepers in the area are busy in their own affairs. It is well known that persons from the public are not inclined to appear as witnesses, they are busy in their own affairs. Public Witness 5 and Public Witness 6 eye witnesses have been produced. The doctor who conducted the post-mortem has been produced, ft is not necessary that all the witnesses should be produced. If the statements of the witnesses Public Witness 4 and Public Witness 5 and P. W. 6 are believable there is no reason to draw any adverse- inference against the respondents for non-production of any other witness such as Ram Chander, any shopkeeper of the area or the Investigating Officer. It is also well known that if there are a large number of witnesses who witnessed the accident a selection may be made by the claimants.
(13) It is also submitted by the learned counsel that the accident took place at 3 P.M. and F.I.R. was recorded at 5.25 P.M. suggesting that the story contained in the F.I.R. was a concocted one. I do not agree. Bajrang Lal Public Witness 6 was with the deceased before the accident on the left side of the road. The deceased was hit by the bus and then run over by the bus. People collected there, the driver ran away, police came at the spot and Bajrang Lal Public Witness 6 along with the police took the deceased in the police vehicle to the All India Institute of Medical Sciences where he was declared dead. It is only thereafter that Bajrang Lal went to the police station and made a report. The period of 2-1)2 hours between the accident and the recording of the F.I.R. is not unreasonable and no adverse inference can be drawn against the respondents.
(14) In N.K.V. Bros. (P) Ltd. vs. M. Karumal Ammal and others, 1980 A.C.J. 435(4) the Supreme Court has made the following observations :
'ACCIDENTS Claims Tribunal must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving'.
In view of the above observations of the Supreme Court the evidence of the doctor who conducted the post-mortem and the eye witnesses Public Witness 5 and Public Witness 6 it is held that the accident resulting in death of Ram Lal deceased took place due to rush and negligent driving of the bus in question on the part of the driver Hari Ram, and that the deceased had not jumped out of the bus as pleaded by the appellants. On the contrary he was hit by the bus and run over under the rear wheel of the bus.
(15) The next question is about the assessment of compensation. Section 1108 of the Motor Vehicles Act, 1939 provides for determination of the amount which appears to be just. The word 'just' has not been defined anywhere in the Statute. In Gobald Motor Service Ltd. and another vs . R. M. K. Veluswami and others : 1SCR929 (5) which was a case under Fatal Accidents Act, 1855, if has been observed that the amount of compensation must necessarily be an estimate, or even partly a conjecture, that the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of death that is, the balance of loss and gain to a dependant by the death must be ascertained. In Mrs. Manjushri Raha and others vs. B. L. Gupta and others, 1977 A.C.J. 134 the Supreme Court determined the' compensation payable to the heirs of the deceased on the basis of the actual income lost .to the family. There are two modes of computing compensation. One is to estimate the number of years which the deceased was expected to live and then find out as to how long his legal representatives would be dependant upon him during that period. By multiplying the net annual income actual or expected of, the deceased with the number of years the legal representatives were expected to be dependant upon him, the amount of compensation .is arrived at. In other words, !hc net annual income, which the deceased was expected to earn is to be multiplied by the expectation factor. . In this mode the element of conjecture is inherent. This mode was adopted by the Motor Accident Claims Tribunal. Another mode is that the period of dependency of the heirs is multiplied by the annual income of the deceased lost to the dependants and that amount is awarded as compensation. In short these two methods are known as calculation of compensation on the basis of income lost to the family and calculation of compensation on the basis of a suitable multiplier. From the reported judgments of the Supreme Court and High Courts referred to by the counsel for the parties it is apparent that sometimes compensation has, been awarded on the basis of income lost t5 the dependant and sometimes on the basis of suitable multiplier of the annual income of the deceased. From the cases it is also apparent that a figure of 15 to 20 has generally been taken as a suitable multiplier of the net annual income of the deceased for purposes of determination of the compensation. In Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal vs. Sudhakar & others, 1977 A.C.J. (S.C.) 290 a multiplier of 20 was considered suitable. Some of the cases referred to by the learned counsel for the appellants where mode of multiplier was adopted are, Municipal Corporation of Delhi vs. Subhawanti and other, 1966 A.C.J. 57C. K; Subramania Iyer and other vs. T. .Kunhi Kuttan Nair and others, 1970 A.C.J 110 (S.C. )(9), Shaikhupura Transport Co. Ltd. vs. Northern India Transporters Insurance Co. Ltd. 1971 A.C.J. 206Hardeep Kaur and another vs. State of Punjab and another, 1974 A.C.J. 500 State of Punjab vs. Mst; Parisini and another, 1977 A.C.J. 358 and Bishan Devi and another vs. Sirbaksh Singh and others, 1979 A.C.J. 496
(16) Learned counsel for the respondents has. referred to Mohinder Kaur and others vs. Manphool Singh and others, 1981 A.C.J. (Del) 231 Municipal Corporation of Delhi and others vs. Shanti Devi Dutt and another, 1975 A.C.J. 508 and Governor General of India in Council representing the Great Indian Peninsula Railway Administration vs. Bhanwari Devi, 1958 -65 A.C.J. 114 Gobald Motor Services Ltd. (Supra), Mrs: Manjushri Raha and others (Supra) and Pushpa Thakur vs. Union of India and another, 1984 A.C.J. 559 where 'just compensation' was arrived at on the basis of income lost to the heirs dependants. In the .instant ease the age of the deceased at the time of his death was 40 as mentioned in the claim petition. The widow Smt. Parbati Public Witness I has deposed that the deceased was about 40 years at the time of his death. There.is no evidence in rebuttal. The trial court held that the deceased was 40 years at the time of death which is correct. The widow of the deceased has further deposed that the deceased was having good health and he had no ailment. He did not drink. It is further in evidence that the mother of the deceased R.W. 3 is still alive. In view of the fact that the deceased was having good health it is reasonable to expect that he would have lived at least up to the age of 70 years if not more and would have been active to work and earn up to the age of 60 years in case he had not died in the accident It is also well known that the normal span of human life in India is expected to be 70-75 years. The ages of the five minor children on the date accident were three months, 4 years, 6 years, 9 years and 11 years. The minor would have depended upon the deceased at least for 20 years, before becoming capable for earning his livlihood. Thus by adopting either mode of compensation the dependants lost income for at least 20 years. In other words by the other mode a multiplier of 20 in the instant case would be just and reasonable to determine the compensation after determining the annual income of the deceased.
(17) It is in evidence that the deceased was getting Rs. 800 per month as salary plus bonus and traveling allowance. He was working as a site supervisor with M/s. Anant Raj Agencies who are building contractors. Anil Sarin one of the partners of the said firm has appeared as Public Witness 2. He has deposed that Ram Lal, deceased was employed as Site Supervisor in the year. 1975; the entire turn over of there firm was Rs. 3 crores; the firm was constructing 1200 flats for D.D.A. at Shaikh Sarai; the value of the work was about Rs. 1 crore. When the deceased joined the said firm he was getting Rs. 600 per month as emoluments besides bonus and traveling allowance. The trial court after taking into consideration all the circumstances has determined that the deceased was drawing Rs. 800 besides bonus and traveling allowance. The widow (P.W. 1) of the deceased has deposed that she used to be given by the deceased Rs. 700 per month and that sometime he used to give full amount of salary and use to keep with him the traveling allowance of Rs.80. According to her the salary of the deceased was Rs. 800 per month. Thus it can safely be held that the deceased was getting Rs. 800 as salary besides bonus and traveling allowance. He used to give at least Rs. 700 per month to his widow for the family. In other words, the personal expenses of the deceased were used to be met by him from Rs. 100 retained by him out of the salary, bonus and .traveling allowance Rs. 80 per month. In other words it must be held that the income lost to the family is Rs. 700 per month. The dependants lost his earnings for a period of 20 years. During this period the deceased would have earned and paid to the family for their expenses Rs. 1,68,000 at Rs. 84,00 per year. Had he remained alive the respondents would have received this amount at least from him during the next 20 years. Calculating the compensation from the other method of multiplier the income of the deceased as determined by the Tribunal was Rs. 300 per month and after deducting personal expenses Rs. 100 his income was Rs. 700 per month, i.e. annual income was Rs. .8400. By multiplying this figure by 20 the amount of compensation comes to Rs. 1,68,000. Counsel for the respondents submits that future prospects of increase in income of the deceased be also taken into consideration. But there is no reliable evidence to that effect.
(18) The trial court has deducted 113th of the income of the deceased as his personal expenses without any evidence on record. Considering the size of the family the deceased was not in a position to spend 1/3rd of his earning on him. The family consists of mother, widow and five children bedsides step-son and step-daughter. The Tribunal has further deducted 15 per .cent of the amount of compensation on account of lump sum payment to the respondents. In these days of inflation this deduction is not justied. On account of rise in price the benefits of lump sum become negligible. I am, thereforee, of the opinion that no deduction should be made from the compensation on account of lump sum payment. No deduction on account of lump sum payment was made in Mohinder Kaur and others vs. Manphool Singh and others, 1981 A.C.J. 231 Delhi Transport Corporation and another vs. Pushpa Chopra and others, 1981 A.C.J. 203 Municipal Corporation of Delhi and others vs. Shanti Devi Dutt and another, 1975 A.C.J: 5085
(19) The respondents claimed interest from the date of filing of the compensation applic.ation till judgment. The Tribunal has refused to grant interest on the ground that the case was adjourned for many days without any fault of the appellants. This is not a correct approach. Section 110CC reads as under :
'110CC-Award of interest, where any claim is allowed; Where any Court or Claims Tribunal allows a claim for compensation made under this Act, such Court or Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf'.
This Section confers power to award interest. The respondents- claimants were not at fault at all. The application was filed Ob 25th March, 1980 laid was decided on 7th April, 1982 by the Tribual. The amount of compensation in fact became due on the date when the accident took place. The respondents are entitled to interest at 12 per cent from the date of making the compensation application till the date of payment (See : Chameli Wall vs. M.C.T. etc : 1985- Raj. L. R 497 The Supreme Court granted 12 per cent interest in Nareinva V. Kamat and another vs. Alfredo Antonio Doe Martins and others, 1985 A.C.J: 397
(20) The appeal is dismissed with costs. The cross-objections of the respondents are accepted with costs. Counsel fee Rs. 500. The amount of compensation awarded to the respondents- claimants against the appellants is enhanced to Rs. 1,68,000 with interest at the rate of 12 per cent per annum from the date of the compensation application i.e. 28th March, 1980 till payment. The appellant Insurer's liability under Section 95 and 96 of the.Motor Vehicles Act is restricted to Rs. 50,000, costs of the. respondents against the appellants and interest on, Rs. 50,000 at the rate of 12 per cent per annum from 28th March, 1980 till payment.