S.K. JHA, J.

(1.) This is an appeal under Section 110-D of the Motor Vehicles Act (hereinafter to be referred to as the) against the order of the Motor Accidents Claims Tribunal, Patna, dismissing the application for compensation of the appellant. The appellant had preferred a claim under Section 110-A of thefor the award of compensation to the tune of Rs. 1,00,000 on account of the death of his son Dharamdeo Prasad aged about 19 years caused by the impact of a tempo (taxi) bearing registration No. BRP 7809. The aforesaid accident took place at about 7 p.m. on the 27th Feb., 1968 near the State Police Radio Headquarters within Gardanibagh Police Station in the town of Patna.

(2.) The appellants case was that while his son Dharamdeo Prasad was coming on a bicycle from the side of aerodrome towards his residential place in mo-halla Laljitola, the above mentioned tempo owned by Anil Kumar Gupta, respondent No. 1. and insured with the Insurance Company, respondent No. 2, dashed against him causing injuries. He was removed to the Rajendra Surgical Block of the Patna Medical College, for treatment but he died there. It was further claimed that a sum of Rs. 500 had been spent over the treatment of the deceased son of the appellant during the period of five hours between the time of the occurrence and his death. The further case of the appellant was that the deceased was a student in the local B. N. College and was also earning a sum of Rs. 200 per month from part-tune jobs. The appellant had filed the application for compensation as being the legal representative of the deceased,

(3.) Separate objection petitions were filed by each of the two respondents, namely, the owner of the tempo in ques-tion and the insurer. Respondent No. 1 challenged the maintainability of the claim case and contended that the same was barred by limitation and further that the appellant had no cause of action as he was neither the legal representative of the deceased nor any relation of his. The further case of the owner, respondent No. 1, was that the tempo in question was never involved in the alleged accident. It was, as a matter of fact, lying for repairs in the New Janta Electric Works between the 14th Feb., 1968 and the 1st of March 1968. It was further alleged that the deceased himself was guilty of double riding on the bicycle and so, if he sustained any injury resulting in his death, it was due to his own negligence and illegal double loading. The claim was alleged to be highly exaggerated and false--merely to extort money.

3-A. Respondent No. 2, the insurer, in its objection put forth a plea that the mother of the deceased, who was his sole heir and legal representative, was still alive and that the appellant had no right to claim any compensation on account of the death of his son. The Insurance Company also denied its knowledge regarding the earning of Rs. 200 a month by the deceased by doing any part-time job on the date of the alleged accident. It was admitted that the vehicle (tempo in question) was insured with it and that respondent No. 1, Anil Kumar Gupta, was its owner. But it was denied that the tempo in question was ever involved in the alleged accident. Like respondent No. 1, respondent No. 2 also came forward with a plea that the tempo in question was not on the road on the alleged date of accident since it remained inside the garage as its owner was busy in connection with the marriage ceremony of his brother. Liability was disowned in respect of the alleged accident.

(4.) The Tribunal framed the following five issues :

"1. Is the claim petition maintainable 2. Is the claim barred by limitation 3. Has the applicant right to sue as the legal representative of the deceased Dharamdeo Pd. 4. Did the accident occur by impact of rash and negligent driving of the tempo bearing No. BEP 7809

(5.) Is the applicant entitled to any relief as claimed by him and if so to what relief and against whom "

5. With regard to issue No. 2 it was held that the application had been filed well within the prescribed time and was not barred by limitation. Apropos issue No. 3, it was held that the appellant had proved that he was the father of the deceased and further that even assuming that the mother of the deceased was alive and had not joined, the application could not be said to be not maintainable simply because the father of the deceased had filed it in view of the provisions of Section 110-A of the. The Tribunal further held that an accident had taken place on 27-2-68 and that Dharamdeo died on account of that accident. The appellant, therefore, was held to have a cause of action to file the application, The claim was, therefore, also held to be maintainable at the instance of the appellant as the legal representative of the deceased. Thus issue Nos. 3 and 1 were also decided in favour of the appellant. Regarding issue No. 4, it was held that it had not been proved that the accident was by the impact of the tempo in question due to its rash and negligent driving. In view of the finding adverse to the appellant on issue No. 4, the Tribunal refrained from going into the question of the quantum of the relief to which the appellant may have been entitled and against whom. With regard to issue No. 5, it was merely held that in view of the finding on issue No. 4 it was needless to probe into the matter of the quantum of just compensation.

(6.) Learned counsel for the appellant, therefore, challenged the finding of the Tribunal on issue No. 4 and advanced his arguments on the question of quantum of just compensation to be awarded to the appellant in case issue No. 4 were decided in his favour.

(7.) The main point for consideration in this appeal, therefore, is as to whe- ther it had been proved by the materials on record that an accident had taken place on 27-2-68 in the evening hours by the impact of tempo (taxi) registered as BRP 7809 on account of its being rashly and negligently driven and in course of which accident the deceased Dharamdeo died.

(8.) Before I proceed to discuss the evidence on record I want to make it clear that Anil Kumar Gupta, respondent No. 1, has admitted that he is the owner of the tempo taxi cab bearing registration No. BRP 7809 and that the said vehicle is insured with respondent No. 2. As already stated above, the liability is denied by the respondents mainly on the grounds that on the date and at the time of the accident that vehicle was lying idle in a garage and was not on the road and further that the deceased Dharamdeo Prasad met with the accident on account of his own negligence and not on account of the rash and negligent driving of the driver of the tempo concerned.

(9.) The two important witnesses examined on behalf of the applicant (appellant) on the point of the accident having taken place on account of the rash and negligent driving of the driver of the tempo bearing registration No. BRP 7809 are Sarwadanand (witness No. 4) and Shri Prakash Gupta (witness No. 7). A. W. 4 Sarwadanand has pledged his oath to say that on 27-2-68 at about 6 p.m. the accident had taken place on account of the collision between tempo bearing registration No. BRP 7809 and the cycle on which the deceased was coming. This witness was going in that tempo from Patna to Danapur. When the tempo reached near the Wireless Radio Station on the Bailey Road, the accident took place. At that time the tempo was going from east towards west and a cycle was coming from the opposite direction, i. e., from the west. The tempo was travelling neither at a very fast speed nor slowly at the time when the accident took place. The driver of the tempo did not blow any horn at the time of the occurrence. This witness has also stated that he had been examined in connection with this accident before the police officers and the Magistrate. The person coming on the cycle became injured on account of the collision between the tempo and the cycle. The tempo, however, did not stop at the place at that time. The witness claims to have known the driver of the tempo by the name of Lala, who resides in the village of this witness where the drivers sister is married. The driver did not stop the tempo after the collision in spite of his being told by this witness to stop and he fled away with the tempo. The driver himself told this witness the next day that the person driving the cycle who had been injured was dead. In his cross-examination the witness has stated that the place where the accident had taken place was metalled road. The road is sufficiently wide at that place, being 13 or 14 feet wide with two flanks of kutcha road each 8 or 9 feet wide, The tempo was going at that time on the middle of the road and the cycle driver was thrown towards the southern side of the kutcha flank by the impact of the collision. He has further stated that the cycle was hit by the tempo by the right side mudguard of it. This is his entire evidence. On a scrutiny of this evidence, it is clear that the cycle driver who was coming from the west towards east was hit with the rear mud-guard of the tempo and the impact was sufficient to have thrown the deceased to the southern flank of the road, which would go to show not only that the tempo was running, more or less, on the wrong side of the road but also that it hit the cycle causing such an impact as was sufficient to have thrown the deceased cycle driver to the opposite direction, which would be towards the left of the tempo. It is further clear that the tempo driver had neither put on the light nor had blown the horn of the tempo at the time of the accident. It is also clear that in spite of having been told by the passengers of the tempo like, A. W. 4 the driver did not deliberately stop the tempo but fled away with it. No suggestion has been thrown to this witness in cross-examination on behalf of either of the respondents as to why he should falsely pledge his oath. He was one of the passengers in the tempo. He is completely a disinterested and non-partisan witness. There does not seem to be absolutely any reason as to why his statement on oath should not be accepted. Witness No. 7 for the applicant, Shri Prakash Gupta was another co-passenger in the same tempo bearing registration No. BRP 7809. He has also deposed to the effect that the accident had occurred on the Bailey Road at the place where the Police Radio Wireless Station Is situated to be more precise, the accident had taken place a little to the east of be wireless station. At that time the tempo was going from the east to the west. A cycle was coming from the west to the east at the time. The cyclist was driving his cycle on the northern side of the road. This would show that the cyclist was on his left side of the road. The tempo on which this witness was travelling was being driven at a very high speed. The driver did not blow any horn nor was the light of the tempo put on at the time of the accident. There was a collision between the tempo and the cycle on the northern side of the road and the cyclist was thrown off. This witness also asked the tempo driver to stop. He, however, did not stop the vehicle and fled away along with the tempo. This witness has also stated that he had been examined by the police and the Magistrate in connection with the accident previously, and he had been informed by the police officer examining him that the cyclist had died as a result of that accident. In cross-examination this witness has stated that he had seen how the collision had taken place. He was sitting on the right side of the rear seat of the tempo. There were three wheels of the tempo which had also mudguards. He has asserted that even in bis statement before the Magistrate he had stated that the tempo driver had not blown the horn nor had put on the light of the tempo. He has further stated that he had noted down the number of the tempo at the time when he got down from it near his house. He has further stated to have seen the accident with his own eyes. He has frankly admitted that he was not known to the cyclist from before. In Ms cross-examination it has further been taken from him that at the time when the accident had taken place there was insufficient light. He has denied the suggestion that he had not seen any occurrence and had come to depose falsely. Nothing has been brought out of his cross-examination to discredit him. Again this witness seems to be a completely disinterested witness. Nothing has been elicited from him to show that he had any connection with the deceased Dharamdeo or his family. On the contrary, in cross-examination he has clearly denied to have had any introduction with the deceased from before. 1 do not find any valid ground for not accepting his statement on oath.

(10.) The evidence of these two wit nesses, namely, A. Ws. 4 and 7 is sufficient to show that at the time the acci- dent had taken place there was no sufficient light; the tempo bearing registration No. BRP 7809 was being driven at a rather high speed without any light on and without its horn having been blown at the time of the accident by the driver. The cyclist with whose cycle the tempo collided was coming from the west to the east and the cyclist was driving his cycle on the northern side of the road which means he was travelling on his left side. He was hit by the tempo with its right hand side mud-guard. Judicial notice can be taken of the fact that there are only three mud-guards in a tempo having three wheClauses If the cyclist was hit with the right hand side mud-guard of the tempo, it was clearly on the wrong side of the road where the tempo was being driven by its driven in spite of the cyclist having been knocked down on account of the impact of the collision between that particular tempo and the cycle, the tempo driver did not choose to stop his vehicle notwithstanding entreaties by the passengers travelling therein. Rash and negligent driv of the judgment of G. Rule Case No. 802/68/Tr. 177/72 and an order passed in Criminal Appeal No. 138 of 1972. These documents have been marked exhibits 8 and 10 respectively, Ext. 8 is the judgment of the trial Court in the criminal case started against the driver of tempo bearing registration No. BRP 7309 on account of his rash and negligent driving resulting in the accident in which Dharamdeo died. The driver of that vehicle was convicted therein. The Claims Tribunal has taken the view that the findings in Ext. 8 in the present case by the applicant was of no consequence since findings as to the guilt or otherwise of the driver In a criminal case are wholly irrelevant for the purpose of trial on merits of claims petition before a Motor Accidents Claims Tribunal. It is true that the judgment of the Criminal Court is not at all binding on the Motor Accidents Claims Tribunal and a judgment of a Criminal Court is admissible to prove only who the parties to the dispute were and what order was passed therein -- vide Kamadhar Chaudhary v. Janki Chaudhary (AIR 1956 Pat 49 ). The Judgment would merely be acceptable for the limited purpose of showing that driver of tempo bearing registration No. BRP 7809 had been prosecuted for rash and negligent driving resulting in the accident in question. The evidence of the two witnesses, as I have stated above, is sufficient for holding that tempo taxi BRP 7809 was involved in an accident on 27-2-68 in the evening and that the accident had occurred on account of the rash and negligent driving of its driver Chandrika Lal. Ext. 8 merely lends support to this oral evidence on the particular that the driver of this very tempo was criminally prosecuted for an offence of rash and negligent driving resulting in the accident in question, There can thus be no escape from the conclusion that the defence of the respondents that this tempo was lying idle in a garage and was not on the road at the time of the accident is palpably false. And, although the fact of convic- tion of the driver in that criminal case In Ext. 8 shall not be admissible in so far as the present proceedings are concerned, judging independently the evidence of the two witnesses discussed above leaves no room for doubt that it was on account of the rash and negligent driving of the driver of this particular tempo that the accident had taken place on account of which Dharamdeo died. The Claims Tribunal has rightly held that the maxim -- res ipsa loquitur -- is not a principle of liability but a rule of evidence. But as Winfield on Tort, 7th Edition, at page 196, says,

"it possesses no magic qualities : nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin. When used on behalf of a plaintiff it is generally a short way of saying : I submit that the facts and cir-cumstances which I have proved establish a prima facie case of negligence against the defendant. It must depend upon all the individual facts and the circumstances of the particular case whether this Is so."

As I have already shown above, the evidence of A. Ws. 4 and 7 does justify in the instant case an inference establishing a prima facie case of negligence against the driver of tempo bearing registration No. BRP 7809.

(11.) I accordingly hold that the appellant has succeeded in establishing that his son Dharamdeo died on account of the accident arising from the collision of his cycle with the tempo taxi bearing Reg. No. BRP 7809 by reason of the rash and negligent driving of its driver. There can thus be no escape from the vicarious liability of respondent No. 1 for the act of the driver who was in his regular employment nor can respondent No. 2 with which the vehicle was admittedly insured at the tune of the accident avoid such liability.

(12.) It was argued rather vehemently by Mr. S. C. Ghose, learned counsel for respondent No. 1, that the application before the Claim Tribunal was not maintainable as the driver of the tempo in question had not been a party to the case. It was submitted that if respondent No. 1 was to be saddled with the liability for the rash and negligent driving on the part of the driver who was in his employment, such liability could be fastened only when the driver concerned bad been made a party to the proceeding, who would have been at liberty to refute the case made out against him in absentia. The non-joinder of the driver Chandrika Lal, according to learned counsel for respondent No. 1, was fatal to the appellants claim application before the Tribunal, This argument proceeds, in my view, upon a misconception of the law with regard to vicarious liability or in relation to the law of joint tortfeasors. The complete answer to the point raised by Mr. Ghose can well be given in the words of Winfield on Tort, 7th Edition, Chap. 29, at page 762 -

"Thus, I am liable for the torts of my servant committed in the course of his employment, and generally I alone am sued because I alone am worth suing, but of course he is in general personally liable and he can be sued separately; or, as the law regards us as joint tortfeasors, we can be sued jointly. It is no excuse for me that 1 may have forbidden him to do the ant; so long as he does it in the course of his employment we are joint tortfeasors." And again, at page 764 it has been said-

"The liability of joint tortfeasors is joint and several, each may be sued alone, or jointly with some or all the others in one action; each is liable for the whole damage, and judgment ob- ained against all of them jointly may be executed in full against any one of them." It is thus futile to argue that in the absence of the driver Chandrika Lal, the claim application of the appellant is not maintainable.

(13.) This then brings us to the question of quantum of damages to which the appellant can be said to be entitled. A. W. 3, Badri Narain, who is the appellant himself, has deposed that at the time when his son died as a result of the accident in question Dharamdeo was reading in B.A, final year and he was a student of the local B. N. College. Apart from prosecuting his own studies, he used to derive an income of Rs. 200 per month by doing some tuition work. He has further stated that he had to incur an expenditure of about Rs. 500 on the treatment of Dharamdeo after the accident. He has, however, stated in course of his cross-examination that he had no written proof regarding the income of Rs. 200 per month of the deceased Dharamdeo. He has further said that he had no cash memos, etc., for the expenses over the treatment and medicines of Dharamdeo after the accident. A. W. 8, who is an Assistant in the office of.B. N. College, has proved that a student named Dharamdeo Prasad was studying in B.A, Part II of the college. A. W. 10, Om Pra-kash, has pledged his oath to say that Dharamdeo Prasad used to teach his sons and daughter and he was paying him a sum of Rs, 40 per month. He has also stated that Dharamdeo used to tell him that he was doing tuition work at other places also, He has denied the suggestion in the cross-examination that he bad come to depose falsely at the instance of the applicant Badri Narain. There is nothing in his cross-examination to suggest as to what interest this particular witness had to support any false claim of the applicant. I see no reason not to accept the evidence that at the time of his death on account of the accident Dharamdeo was aged about 20 years. Here, it may be taken note of that the applicant Badri Narain Prasad was aged 47 years on the date of the acci-dent 1968 as, in course of his deposition, i.e., 1st of July, 1972 his age was 51 years. I also see no reason to disbelieve the evidence that on the date of death of his son, Badri Narain was aged about 47 years and further that at that time Dharamdeo was earning from tuition about Rs. 200 per month. Although the life expectancy of the deceased Dharamdeo, who was a healthy young man can well be taken to be 40 years since he would have normally been expected to live up to the age of 60, so far as Badri Narain is concerned, his life expectancy can be taker) to be only 13 years as he was aged 47 at that time. It can normally be expacted that out of the sum of Rs. 200 that the deceased Dharamdeo was earning, he would have been saving at least half of the sum, namely, Rs. 100 per month, so that for the 13 years of the loss on the basis of expectancy of life of Badri Narain at the rate of Rs. 1,200 per annum (i.e., Rs. 100 per month), the amount of compensation can well be calculated at Rs. 15,600/-. Giving a discount of 10 per cent, as deduction towards chances, Rs. 1,560 may well be deducted from out of the sum of Rs. 15,600. That will bring a net amount of Rs. 13,040. The quantum of damages of compensation to be awarded to the appellant can, therefore, safely be taken to be Rs. 13,040 which the appellant has shown to be a reasonable probability of pecuniary advantage that he has lost. I have taken into account the well settled mode and manner of ascertainment of damages in fatal accident cases which have been summed up by Viscount Simon in the case of Nance v. British Columbia Elec-tric Rly. Co. Ltd. (1951 AC 601). The tests which have been taken into consi-deration for the ascertainment are (i) first estimate what was the deceased mans expectation of life if he had not been killed when he was and (ii) what sums during those years he would have probably applied to the support of the dependent. And, in fixing the expecta-tion of life of the deceased regard has been had not only to his age and bodily health but also to a premature termina-tion of his life by a later accident, which has been termed by me as deduction towards chances. This is the test which has been accepted as valid by the Sup-reme Court in the case of C. K. Sub-ramonia Iyer v. T. Kunhikuttan Nair (AIR 1970 SC 376 ). I do not propose to award any compensation on account of the alleged expenses incurred over the treatment and medicines of the deceased Dharamdeo, for it is doubtful in the absence of any cash memos or papers of the hospital to show with any amount of certainty as to what amount, if at all, had been so expended by the appellant over the treatment of and medicines for his son Dharamdeo who died shortly after the accident in the Rajendra Surgical Block of the Patna Medical College Hospital.

(14.) I would accordingly allow this appeal, set aside the judgment and order of the Motor Accidents Claims Tribunal and decree the claim of the appellant (applicant) for a sum of Rs. 13,00. This liability of the owner (respondent No. 1) and the insurance company (respondent No. 2) with regard to the amount awarded in favour of the appellant will be joint and several and the appellant would be at liberty to proceed against either or both of them to realise the said amount. In the circumstances of the case, I shall, however, make no order as to costs.