IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.251 of 1993 (O&M) Date of decision:22.02.2011 Beant Kaur and others ....Appellants versus Jarnail Singh and others ..Respondents II. FAO No.331 of 1993 (O&M) Oriental Insurance Company ....Appellant versus Beant Kaur and others ..Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Arvind Mittal, Advocate, for the appellants in FAO No.251 of 1993 and for respondents 1 to 4 in FAO No.331 of 1993. Mr. Ravinder Arora, Advocate, for the appellant in FAO No.331 of 1993 and for respondent No.3 in FAO No.251 of 1993. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J.(Oral) 1. The appeal in FAO No.251 of 1993 is against an award of dismissal of the claim for compensation for death of a male, aged 34 years. He was a pedestrian on the road and he died when a tractor ran FAO No.251 of 1993 (O&M) - 2 - over him and yet another person by name Santa Singh. The defence was that Santa Singh was deaf and he was suddenly crossing the road unmindful of the tractor which was coming and in an attempt to steer out of the way of Santa Singh, the driver Jarnail Singh turned out in another direction and ran over the deceased Virinder Singh. The driver stated that the tractor was at a very low speed and the accident had taken place only on account of the fault of those persons, who were pedestrians. Contrary to the evidence, the Tribunal took a reasoning which was at variance both with the contentions of the claimant as well as the statement contained by the contesting respondents. The Tribunal held that there was entry in DDR which showed that the deceased Virinder Singh was driving the tractor and he had first dashed against Santa Singh and later fell down from the tractor and got run over by the tractor. I cannot visualize how such a situation could have taken place when it was no body's case that the tractor had capsized. A person cannot be catapulted from his seat to get under the tyre in the manner reasoned by the Tribunal. The assessment of compensation by the Tribunal on no fault basis was not justified and, on the other hand, the Tribunal ought to have held that the accident had taken place only when Jarnail Singh was driving. The fact that Jarnail Singh was a brother-in-law of Virinder Singh cannot make a difference and there was no cause for an unnecessary suspicion as entertained by the Tribunal that all the relatives joined together to fabricate a false case. Two persons died in the accident was not false nor was the involvement of the tractor itself false. The only issue was, Who was driving the tractor. The inference that the FAO No.251 of 1993 (O&M) - 3 - deceased himself must have been driving the tractor, in my view, does not accord with the pleading. 2. In the manner of a collision between a motor vehicle and a pedestrian, I would always place a greater circumspection and a care for the driver of the vehicle. I will not take that a pedestrian's negligence alone could ever cause an accident. I have had an occasion to deal with the situation in Mohindro Devi and others Versus Sukh Ram and others in FAO No.48 of 1991, dated 06.12.2010 as under:- 3. I am of the view that the approach of the Tribunal was wholly faulty. Learned counsel for the insurance company would argue that there was no negligence at all of the truck and the accident had taken place only by the negligence of the cyclist. Any driver of a motor cycle ought to know that a cyclist or a pedestrian has just as much use for the road as they have. There shall be a greater degree of circumspection for a driver on a motor vehicle, than a pedestrian or a cyclist. The reasons are obvious. A pedestrian dashing against another pedestrian does not cause death nor a cyclist could cause death to a pedestrian. It is only a faster moving vehicle with heavier mass can cause death by its impact. A person that drives a truck ought to be prepared at any time for even a careless use of the road by a pedestrian or a cyclist. I will be loath to infer an element of negligence for a cyclist or a pedestrian ever. I would, on the other hand, hold a driver of the motor cycle to be always responsible if there results on impact with the cyclist and he comes to harm and in this case, a person was crushed to death. It will be wrong to assume that a driver, who could drive the vehicle carefully, would cause death by the negligence of another. Even an issue of contributory negligence in such situations ought not to be easily inferred. FAO No.251 of 1993 (O&M) - 4 - I would, therefore, reverse the finding that the accident took place only by the negligence of the cyclist and that the driver of the truck was careful in his driving. I will, therefore, vacate the finding of the Tribunal and find the driver of the Motor Vehicle to be negligent driving of the bus. 3. As regards the quantum, the first claimant had stated that her husband was earning Rs.6,000/- per month through his agricultural operations and his avocation in dairy farming. In the cross-examination, it was elicited that the property which her husband was cultivating in the name of his father-in-law and the brothers of the deceased were cultivating the lands. Evidently, he was attending to agriculture along with his father and brothers and I would take the average income of the deceased a little above what the agricultural labourer would be got. I will assume him to be the owner of the agricultural lands with some managerial skills and take the average income at Rs.25,000/- per year. The compensation on that basis is tabulated below providing duly the conventional heads of claim:- 4. I tabulate the amount of compensation as payable as under:- Sr.No. Heads of claim Tribunal High Court Amount (Rs.) Amount (Rs.) 1. Income 25,000 2. Add, % of increase 30%/50%/nil - 3. Deduction 1/4 4. Multiplicand 18,750 5. Multiplier 16 6. Loss of dependence 3,00,000 7. Loss of consortium & love and 12,500 affection for children 8. Loss to estate 2,500 9. Funeral expenses. 10,000 10,000 _____ _______ Total 50,000 3,25,000 FAO No.251 of 1993 (O&M) - 5 - 5. The amount of compensation determined in excess shall attract interest at 6% from the date of petition till date of payment and the liability shall be joint and several on the respondents and the amount could be enforced against the insurer. 6. The Insurance Company is in appeal in FAO No.331 of 1993 challenging even the restriction of liability of Rs.25,000/- on the ground that even no fault liability could not have been fastened on the insurer when a pedestrian was at fault. I have already held that the negligence was on the part of the driver of the tractor and, therefore, the plea that the Insurance Company will not be liable cannot be countenanced. 7. It is contended by the learned counsel for the Insurance Company that there had been a restriction of liability for the Insurance Company under the terms of policy and the provisions of the Act. No provisions of the Motor Vehicles Act of 1939 contained a restriction of liability. For a claim by a third party, unless the vehicle was a goods vehicle or a passenger carrying service vehicle, a restriction of liability for an insurer shall not at all times be easily inferred. The burden of proof shall be on the insurer to contend with reference to the terms of policy that was contained in express terms or through any other provisions of the Act. I do not see any support through any provision of the Motor Vehicles Act or through any proposition of law emerging from any decided authorities that there could be restriction of a claim from liability arising out of a death or injury to a third party to a tractor. It must be remembered that the tractor by itself is not a goods vehicle. It is FAO No.251 of 1993 (O&M) - 6 - a light motor vehicle and the liability cannot therefore be restricted in the manner canvassed by the counsel for the Insurance Company. 8. The appeal in FAO No.331 of 1993 is dismissed. (K.KANNAN) JUDGE 22.02.2011 sanjeev