FAO No. 404 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 404 of 1986 Decided on : 04-11-2008 Smt. Reshma alias Resham Bhardwaj and others ....Appellants VERSUS Narinder Singh and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Baljinder Singh, Advocate for the appellants. Mr. Neeraj Khanna, Advocate for respondent no.2. Mr. R.M.Suri, Advocate for respondent no.3. MAHESH GROVER, J This appeal by the claimants is directed against the award of the Motor Accident Claims Tribunal dated 14.1.1986. In an accident which took place on 16.1.84 Lakhpat Rai lost his life. He was driving the scooter which collided with a bus which was coming from the opposite side. The collision was head on. The deceased was taken to the hospital in the same very bus which had collided with the scooter. The deceased lost his life on the way. The deceased was survived by his wife and two minor children who preferred a claim petition on account of the death which had been caused by rash and negligent driving of the driver of the bus. The Tribunal concluded that it was a case of contributory negligence and determined the liability of the bus driver to the extent of 75% while 25% was fastened upon the deceased. FAO No. 404 of 1986 2 While assessing the compensation, income tax returns of the deceased were taken into account. His income was assessed asRs. 1,000/- p.m and the dependency was arrived at Rs. 667/- by making a deduction of 1/3rd on account of personal expenses. Multiplier of 16 was applied considering the age of the deceased to be 40 years. The compensation in this manner was assessed as Rs. 1,28,064/-. 25% was slashed because of the negligence attributed to the deceased and an amount of Rs. 96,048/- was awarded to the claimants alongwith interest at the rate of 12% from the date of the award till the date of its realisation in case the amount of compensation is not paid within three months from the date of award. Assailing the aforesaid award, learned counsel for the appellants contended that finding on the issue of negligence is erroneous. There was no evidence that the deceased was driving the scooter negligently. It was pleaded that the driver of the offending bus did not file any written statement before the Tribunal and only testified during the course of proceedings. It was next contended that even as per his own showing half of the road was said to be blocked because of repairs. Driver of the bus had merely set up a plea without there being any evidence on record that the deceased was following the truck and was trying to over-take it and in that process collided with it. Since there is no evidence to this effect, the statement which is self-serving could not have been relied upon. That apart it was contended that deceased was assessed to income tax as he was a partner in two firms and was also filing independent income tax returns which have been ignored by the Tribunal while assessing the income tax. Specific reference was made to Annexure P-7 to P-10 which are the returns submitted by the deceased for various periods on the strength of which it FAO No. 404 of 1986 3 was pleaded that deceased was earning a handsome amount and his income could not have been taken as Rs. 1000/-. On the other hand, learned counsel for the respondent contended that finding recorded by the Tribunal is perfectly in order as there is no evidence to suggest to the contrary. I have heard learned counsel for the parties and have perused the record. Concededly, the driver did not file any written statement to the claim petition but that in itself may not be a ground to hold against him as he subsequently appeared in the witness box to plead his side of case. However, there is no other evidence except for the self-serving statement of the claimants which are produced in evidence in the form of statement of PW4 and the driver who appeared as RW1. In view of this self-serving evidence the best evidence could have been in the shape of some mechanical report of the damaged bus and scooter or the site plan which could have shown the manner in which the accident occurred. No such evidence has been produced by the respondents and, therefore, in this view of the matter, Court is left with no other option but to consider the facts as they have been determined by the Tribunal. Proceedings before the Tribunal are in the shape of an inquiry and therefore, no conclusive proofs are to be searched for as would be required in the cases where the criminal intent has to be established. Besides, it is not the case that there was no collision at all. The accident is admitted and the Tribunal inferred 75% liability upon the respondent. There being no other evidence what can be inferred from the facts is that certainly the road was closed for repairs and as this is the case as stated by the respondents themselves, and since the traffic has been reduced to a narrow lane, the FAO No. 404 of 1986 4 vehicle which was heavier was certainly cast with a greater duty of care and caution to drive in such a manner so that it did not cause any collision with other vehicles which are on the road. There is no evidence to suggest that there was any truck ahead of the scooter. In this view of the matter, I am of the considered opinion that the finding recorded by the Tribunal on this issue of negligence fastening liability of 25% upon the deceased is without any basis and the same deserves to be modified. Therefore, it is held that only the driver of the offending bus was negligent in driving. In so far as the amount of compensation is concerned, there are several income tax returns on record which are furnished by the deceased in his individual capacity as partner in two firms. The detail of the income shown in income tax returns is as follows:- Assessment Year Total Income 1979-80 (Ex. P-7) Rs.25,640/- 1980-81 (Ex. P-8) Rs. 30,950/- 1981-82 (Ex. P-9) Rs.24,860/- 1982-83 (Ex. P-10) Rs.18,920/- 1983-84 (Ex. P-6) Rs.16,890/- From above, it can be said that the deceased was earning fairly good amount and could not have been assessed in the manner as has been done by the Tribunal. Considering the income tax returns it can safely be inferred that the deceased was certainly earning at least Rs.3000/- per month. His income is, therefore, assessed as Rs. 3000/- per month. A deduction of 1/3rd is made on account of personal expenses and the dependency is assessed as Rs. 2,000/- per month. Multiplier of 16 would be just and appropriate in the given set of circumstances. Compensation in this manner comes to Rs. 3,84,000/-. An amount of Rs. 20,000/- is awarded on account of funeral FAO No. 404 of 1986 5 expenses and loss of love and estate. In this manner, total compensation comes to Rs. 4,04,000/-. The enhanced amount of compensation shall be paid alongwith interest at the rate of 9 % per annum from the date of filing of petition till the date of its realisation. The appeal is allowed in the aforesaid terms and the award of the Tribunal is modified accordingly. The liability to pay the amount shall be the same as has been determined by the Tribunal. November 04 , 2008 (Mahesh Grover) rekha Judge