JUDGMENT Usha Mehra, J.
(1) Delhi Transport Corporation (hereinafter called 'DTC') has sought for the reversal of the judgment of the Motor Accidents Claims Tribunal (hereinafter called the 'Tribunal') dated 2 2/02/1980.
(2) The admitted facts on record are that on 5/02/1993 at about 3.25 p.m. the deceased Kartar Singh was traveling in private bus No.D.L.P. 3677 under Dtc operation. While the said bus was taking a turn towards the Red Fort and entered the crossing of Netaji Subhash Marg near Chhatta Rly. Pul, at that time Dtc Bus No. D.L.P. 73 came from Jamuna Bridge side and entered the crossing. In the process Dtc bus No. D.L.P. 73hit the left side of bus No. D.L.P. 3677. On account of the collision of both the buses, the deceased who was at the rear gate of bus No. D.L.P. 3677received grievous injuries. He fell on the road and became unconscious. He was removed to the hospital where he succumbed to the injuries. The deceased was 18 years old, a student of 11th class and unmarried at the time of the accident. The Tribunal came to the conclusion that it was the driver of DTC bus who struck the rear portion of the bus with the private bus coming to the Kauria Bridge side. The bus No. "D.L.P. 3677 had already crossed major portion of the crossing. That the accident occurred due to rash and negligent driving on the part of the driver of the Dtc bus No. D.L.P. 73. It is against this conclusion of the Tribunal that the present appeal has beenpreferred, challenging the said conclusion, inter alia, on the grounds that the Tribunal erroneously placed reliance on the Fir rather than the sworn testimony of Public Witness 7. The decision of the Tribunal is against claimant's own casei.e. was composite negligence. Similarly the Tribunal without discussing the evidence placed on record awarded the compensation.
(3) Admittedly, in the claim petition, the claimant had attributed the negligence to the driver of both the buses. They had pleaded that the accident was on account of the composite negligence of the driver of the bus No.D.L.P. 73 as well as bus No. D.L.P. 3677. The claimant had asserted that deceased Kartar Singh died due to the composite negligence of respondents1 to 4 and they were vicariously liable. Dtc in its written statement had denied that there was any negligence on the part of its driver. However, no written statement on behalf of its driver Sant Lal has been filed. Except DTC and the New India Assurance Co. (respondent No. 5) no other respondent filed the written statement.
(4) Adverting to the evidence the testimony of Shri Chander Bhan(P.W. 7), is very relevant. He was on duty at chowk Chhatta Rly. Pul when this accident took place. His testimony supports the version that the collision between the two buses was due to the composite negligence of both thedrivers. According to him the bus No. D.L.P. 3677 was on route No. 18.It was coming from Kauria Bridge side at a fast speed. It took turn towards right front side, at that very time the Dtc bus No. D.L.P. 73 was also coming from Shahdara side. It colluded with the other bus. He was controlling the traffic at that time. His statement was recorded at that time. According to him the Dtc bus was not driven at a fast speed. It had crossed the redlight. His testimony that the private bus was coming in a fast speed or that the Dtc bus was being driven slowly, does not prove that the negligence was that of the driver of bus No D.L.P. 3677 or of the Dtc bus. Rather it shows that the driver of both the buses were not keeping proper outlook while entering the crossing. They were negligent. They did not care nor ensured the safety of the passengers. This fact further find support from the testimony of Diwan Singh (P.W. 9). He is stated to be another eye witness of the occurrence. According to him the bus coming from Shahdara i.e. the DTC bus actually colluded with the private bus. Shri Chander Bhan (P.W.7)stated that the private bus was driven very fast whereas according to Diwan Singh (P.W. 9) it was the Dtc bus coming from Shahdara side actually colluded with the private bus. This shows that the accident happened so suddenly that Diwan Singh who was traveling in the private bus thought that it was the Dtc bus which had hit the private bus. The traffic constable onduty, on the other hand found the driver of the private bus at fault because according to him it was being driven in a very fast speed. The statement of Chander Bhan read with the statement of Diwan Singh clearly points out that the accident took place because of the composite negligence of the drivers of the Dtc bus as well as of the private bus. Unfortunately both the drivers have not appeared in the witness box. Court had no opportunity to hear their version of the accident. Hence adverse inference against both of them has to be drawn. Had they been produced, correct picture would have common record. In the absence of their version, one or the other driver alone cannot be held guilty of rash or negligent driving. Accident took place inFeb., 1973 whereas according to R1 W1 Shri Ranjit Singh, the Dtc driver left the services of the Dtc in the year 1974. By this time the claim petition had already been filed by the claimant impleading the Dtc as one of therespondent. Dtc permitting its driver to go away and leave its job without obtaining his address shows that Dtc officials were either not serious in contesting this case or were aware that its driver was equally negligent.Similarly in the absence of the private bus driver inference can be drawn that had he been produced if would have proved that he was also negligent in driving bus No. D.L.P. 3677. Infact from the evidence available .on the record it can safely be inferred that both the drivers were negligent. The Tribunal erred in coming to the conclusion that the negligence was solely that of the Dtc bus driver. The evidence of Public Witness 7 as well as Public Witness 9 does not support the conclusion of the Tribunal that it was the driver of the Dtc bus which in fact hit the bus No. D.L.P. 3677. Having held that there was a composite negligence of both the drivers, the question arises who will be liable ? Since both the joint tort feasors are before this Court therefore the liability will be joint and several.
(5) So far as the quantum awarded by the Tribunal is concerned,claimants have also challenged the same by filing cross-objection on the ground of inadequacy. The father of the deceased proved on record that deceased was a good student and was studying in 11th class. Besides studying he was helping his father in the business of milk dairy. The factum of deceased helping his father in his business is proved by the testimony of Shri Kanhar (PW.3), Shri Ram (P.W.4), Har Lal (P.W.6), Shahjahan T.G.T.(P.W. 10) and 0m Parkash Verma (P.W. 11). Public Witness 10, Shri Shahjahan proved the date of birth of the deceased Kartar Singh as 15/01/1953.Shri Kanhar Lal Public Witness 3 proved that beside being a student of 11th class, The deceased used to look after seven buffaloes and had been assisting his father in running a milk dairy. He used to supply milk at Badar Pur to Singh Ram Dairy & Sons. That by doing this work he was getting from his father about Rs. 500.00 p.m. Similarly Singh Ram Public Witness 4 by his testimony proved that he has been running a milk dairy and that deceased used to supply him milk The father of the deceased appearing as Public Witness 11 testified that his son was helping him in the milk dairy business. Deceased was good in studies as well as in extra curricular activities. He produced certificates of merits which were issued in deceased's favor. He also proved the longevity in thefamily. After the death of Kartar Singh, his father stopped the milk dairybusiness. Deceased was rendering assistance in monetary help worthRs. 500.00 p.m. On this statement of Public Witness Ii there is no cross-examination.
(6) So taking these factors into consideration, I am of the view that the Tribunal assessed the dependency income at very low rate. Even a laborer in 1973 was not getting Rs..250.00 per month and here a boy of 18years old beside being a student of 11th class was also helping his father in his milk dairy business which fact is apparent from the testimony of Public Witness 3,4, 6 and 11. Therefore when the father testified that his son was giving the assistance of atleast Rs. 500.00 per month he had in substance talking about the service which his son was rendering in the business of his father. The father not only lost the affection and company of his eldest son but also lost the service of his son. Therefore the Tribunal ought to have considered beside the financial loss, a loss of service, affections and company. Taking into consideration the loss of service to the father in his business which business the father had to close down on the death of Kartar Singh and loss of financial help which if Kartar Singh had been alive could not have been less than Rs. 300.00 per month. The deceased was 18 years old at the time of hisdeath. His father, Om Parkash was 43 years when he appeared in the witness box on 19/09/1979. So the deceased would have also lived another30 years. Taking the dependency income to be Rs. 300.00 per month the annual income would come to Rs 3,600.00 (i.e. Rs. 300 x 12==3,600). The life expectancy is taken to be 70 years but in the family of the deceased longevity of family life has not been proved. However, taking into consideration the age of the father it can be expected that the deceased would have also lived up to atleast that age. Hence the multiplier of 25 years would meet the end of justice.
(7) From the above discussion it is apparent that the negligence wagcomposite. The question now for consideration is whether the Insurance Company of the private bus No. D.L.P. 3677 is liable to the amount awarded by this Court ? Mr. Paul appears for the Insurance Company, respondent No. 5 contended that the deceased was a passenger of a private bus operated under the Dtc operation. Though the said bus was insured with respondent No. 5 i.e. the New India Insurance Company but as per the policy the maximum liability of the Insurance Company for one passenger is Rs. 5.000.00only. The company had charged Rs. 318.00 as premium for covering 53passengers i.e. Rs. 6.00 had been charged per passenger. This Court cannot make the Insurance Company liable beyond the extent of R. 5,000.00 perpassenger. I am afraid these arguments are not born out from the record of this case. These legal submissions have to be substantiated by the evidence which has come on record and which I am going to discuss hereunder will prove that this legal submission cannot be substantiated on the basis of the record available. Ex. R. 1is the insurance policy which the respondent tried to prove through the testimony of R. 5.W.1 Shri B.R. Kapur, Assistant, New India Insurance Company. He admitted that Ex. R. I is not a carbon true copy of the original. He admitted that the original policy consisted of number of pages with endorsement and those endorsements are not there on the office copy produced by him as Ex. R. 1. He also could not tell what were the terms and conditions of the original policy. He had to admit that R. 1is not the exact true copy of the office copy because with the Ex. R. 1endorsement had not been attached. He had also to admit that in the office copy additional premium for covering risk to the passenger was also charged and that it was a comprehensive policy also, because of charging additional premium. But in Ex. R. I this is not so reflected and other endorsements which were there in the original had also not been incorporated inR. 1. Hence the contention of Mr. S.K. Paul, Counsel for respondent/Insurance Company that the liability of the Insurance Company is limited to Rs.5,000.00 is belied from this admission of R.5.W.1 Shri B.R. Kapur when he admitted that under this policy additional premium for covering risk to the passenger was also charged, and therefore, this policy became a comprehensive policy, shows that there was no limit to the liability of the passenger on account of any accident. Having admitted that the additional premium was charged the question of limited liability comes to an end and this could have been found in the endorsement attached with the original policy which has been deliberately withheld from this Court when Ex. R. 1 was produced.Had those endorsements been brought on record it would have been amply proved how much additional premium was charged with the result that covering the risk of passengers to an unlimited extent. In view of this specific admission of Mr. B.R. Kapur, R.5.W.I the argument of the Counsel for the Insurance Company has no force and I am accordingly hold that the liability of the Insurance Company in this case was unlimited because it had charged additional premium to cover the risk of the passenger to an unlimitedextent.
(8) In view of my above discussion I set aside the award of the Tribunal and hold that the negligence was composite of both the Dtc bus as well as of private bus and they are both jointly and severally liable and that the liability of the Insurance Company is unlimited and that will be liable to pay to the petitioner a sum of Rs. 90,000.00. On this amount of compensation the amount already received will be adjusted against this amount on the enhanced amount also the petitioner will be entitled to interest at the rate of6% from the date of petition till realisation.