S.N. Modi, J.
1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939 against the award of the Motor Accident Claims Tribunal, Bhilwara dated May 30, 1972.
2. The respondents 1 to 6 are the legal representatives of the deceased Magan Lal. They preferred a claim of Rs. 25,000/- under Section 110A of the Motor Vehicles Act against the appellant Jagdish, the owner of the bus, respondent No. 7 Chand Khan, the driver of the bus & respondent No. 8, the Insurance Company, on account of the death of Magan Lal in an accident which took place on 20-5-' 971. At the time of the accident Maganlal was travelling in a passenger bus bearing registration No. RJR 2973 and belonging to the appellant. It was going from Bhilwara to Beawar via Mandal. It was alleged by the claiment respondent that the bus was over loaded and two passengers were sitting on the wrong side of the driver. It was also alleged that the driver of the bus namely Chand Khan was driving the bus at an excessive speed. It was said that when the bus reached at the curve of village Sirdiyas, the driver could not control the vehicle, with the result that the vehicle left the road and turned turtle at a distance of about 40' from the road. As a result of this accident several persons were injured out of whom Maganlal died on the spot & one other person Bhuralal died in the hospital. The claimants alleged gross negligence and rashness on the part of the driver. The claim was resisted by the appellant, the owner of the bus, as well as the respondents No. 7 and 8 the driver and the Insurance Company respectively. The Tribunal after framing issues and recording evidence of the parties came to the conclusion that the bus left the road and it turned turtle at a distance of 40' to 50' away from the road. The Tribunal further held that the plea of the driver that the accident happened because some spring was broken, was after thought. The Tribunal presumed negligence on the part of the driver by applying the principle of res ipsa loquitor. The Tribunal accepted the claim and awarded compensation to the tune of Rs. 20,000/- to the claimants from the appellant, the owner of the bus, respondent No. 7, the driver of the bus and respondent No. 8 the Insurance Company. The Tribunal however limited the liability of the Insurance Company to the extent of Rs. 5,000/- only. It is against this award of the Tribunal that the appellant, the owner of the bus, has preferred this appeal.
3. The learned Counsel for the appellant has urged the following points before me:
(1) Since the claim petition was presented by the Advocate of the respondent No. 1 to 6, the presentation of the claim was improper under Section 110A of the Motor Vehicles Act.
(2) That the appellant was not given adequate opportunity to produce his evidence.
(3) That there existed no reliable evidence to prove that the driver of the bus was driving the bus at an excessive speed.
4. The amount of compensation awarded by the Tribunal is excessive in as much as the Tribunal took the expectation of life at 65 Years.
5. I have heard learned Counsel for the parties and gone through the record of the case. I find no substance in any of the points urged before me.
6. Section 110A does not lay down that the claim petition must be presented by the claimants personally and not through their advocate. That apart, this plea was not raised in the written statement filed by the appellant. This point was of course raised at the time of argument before the Tribunal but it was rightly turned down. It may be mentioned here that under Section 99 CPC an error, defect or irregularity of procedure must in order to be a valid ground of appeal, be a material one i.e. it should have either affected the merits of the case or affected the jurisdiction of the court. It is not the case of the appellant that wrong presentation of the claim in any way affected the merits of the case or the jurisdiction of the court. There is thus no substance in the first point raised by the learned Counsel for the appellant.
6. Coming to the second point, the record shows that the claimants closed their evidence on April 15, 1972 and the case was adjourned to May 20, 1972 for recording evidence of the opposite party. On the hearing dated May 20, 1972 two witnesses namely Shanker Lal and Chand Khan were examined on behalf of the opposite party. Since no other witness was present, the Tribunal closed the evidence of the appellant-opposite party. The learned Counsel for the appellant was not able to point out why other witnesses were not present on the date of hearing. Moreover, neither any list of witnesses was filed within the prescribed time nor the witnesses were summoned through court. Looking to the circumstances, it cannot be said that the Tribunal was not justified in closing the evidence of the appellant-opposite, party.
7. As regards the third point suffice it to say that AW 3 Hiralal and AW 5 Bhanwarlal who were traveling in the same bus along with deceased Maganlal have clearly stated that the speed of the bus at the time of the accident was 60 to 65 miles per hour. The learned Counsel for the appellant was not able to point out any circumstance to show that the testimony of AW 3 and AW 5 is not reliable. It is therefore well proved from their testimony, that the bus was being driven at an excessive speed at the time of accident. It may also pointed out that the accident admittedly took place when the bus was negotiating a curve. It is again admitted that the bus left the road and turned turtle at a distance of 40 to 50 ft away from the road. All these facts speak for themselves and prove rashness and negligence on the part of the driver. The driver Chand Khan has appealed in the witness box as DW 1. He has no doubt denied that he was driving the bus at a speed of 80 to 90 Kms. per hour at the time of accident but that does not appear to be true in face of the evidence of the passengers travelling in the bus namely AW 3 and AW 5 In my opinion the Tribunal was fully justified in coming to the conclusion that the accident took place on account of the rash and negligent driving of the driver of the bus.
8. Coming to the last point it is urged that the Tribunal committed gross error in presuming expectancy of life of a person to be 65 years. I find no substance in the above contention. No authority or rule of law has been cited before me wherein expectancy of life of a person has been presumed less than 65 years. Under the Motor Vehicles Act the amount of compensation is to be what appears to the Tribunal to be just. It was pointed out the Supreme Court in Sheikhupura Transport Co. v. NIT Ins Co. : AIR1971SC1624 that the power given to the Tribunal in the matter of fixing compensation under that provision is wide. Their Lordships observed:
Even if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required to be done under the Fatal Accident Act 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. 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 sources come to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be as certained.
9. Bearing in mind, the above principle, the amount of compensation awarded in the present case by the Tribunal does not appear to be excessive.
10. There is no free in this appeal and it is dismissed with costs.