IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.531 of 1994(O&M) Date of decision:10.02.2011 Smt. Bimla Devi and others ....Appellants versus Balvinder Singh and another ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: None for the appellants. None for respondent No.1. Mr. Gautam Bhardwaj, Advocate, for Mr.N.K.Khosla, Advocate, for respondent No.2. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 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 is against an award of dismissal of the petition claiming compensation for death of Hukum Chand, aged 45 years. The claimants were the widow and his 8 children, ranging between 19 to 2 spaced by two years from one to other. He was a cyclist and the accident was said to have taken place when the truck belonging to the insured dashed against the cyclist. In the written statement filed and in the statement given by the owner/driver, he admitted the accident, but contended that the cyclist was negligent in suddenly crossing the main FAO No.531 of 1994(O&M) - 2- road and the accident had taken place only by the negligent conduct of the cyclist. PW2 was said to be an eyewitness, who spoke to the fact that he had seen the accident and that it took place on account of the rash and negligent driving of the truck. The Tribunal held that the evidence of PW2 did not evoke confidence and he had merely seen the deceased lying on the road and he had not clearly stated that he saw the accident when it took place. He denied a suggestion put to him that he gave a statement to the police that he noticed whether the injured person lying on the road side in an unconscious condition. If the suggestion was with reference to the earlier statement recorded by the police under Section 161, such a contradiction could have been elicited only by examining the investigating officer, who recorded the statement under Section 161. A statement under Section 161 cannot be substantive evidence unless the contradiction is elicited through a person, who was alleged to have recorded the statement contradictory to the statement given in any other judicial proceeding. This suggestion, therefore, would not help an insurer to contend that PW2 had given a different version to the police. 2. I would think the admission of the driver and owner relating to the involvement was conclusive to the fact that there had been an accident involving the respondent's vehicle and if an accident results in death of a cyclist in its collision with the motor vehicle, I will hold the driver of the motor vehicle to be responsible for the accident. It is not a case where the insurer had a defence under Section 170 when the admission of an owner or driver could become irrelevant, except in a case of collusion. The statement of a driver or owner are the most potent FAO No.531 of 1994(O&M) - 3 - instrument for a claim to rely on to secure the proof of negligence. The Tribunal was making a case of special pleading for an insurer to state that in these parts of India, one is always generous to help the family of the deceased particularly because the deceased had a large family to look after. The Tribunal also observed that in its opinion the driver must have been approached and deposed in favour of the applicants. Both these inferences have no basis. A Judge can pass an order only on the evidence brought through the witnesses and documents and cannot extrapolate his own perception of what the human behaviour could be in such like situation. 3. In this case, the deceased was said to be a Chowkidar in a rice sheller of village Samaha and the wife gave evidence to the effect that he was drawing Rs.2,000/- per month and used to contribute Rs.1,500/- to run the household. He was an ex-army employee and the evidence was that he was drawing Rs.2,000/- per month. The Tribunal took the income to be Rs.1,500/-, provided for 1/3rd deduction and took the contribution to the family at Rs.1,000/- and determined the compensation of Rs.1,92,000/-. Having regard to the large size of the family, I would take the contribution to the family as stated by the wife at Rs.1,500/- and adopt a multiplier of 14 and find the loss of dependency at Rs.2,52,000/-. I will provide for a loss of consortium to the wife and loss of love and affection for 8 children at Rs.25,000/- and provide for a further sum of Rs.5,000/- towards funeral expenses and loss to estate. The total compensation will be Rs.2,82,000/- and the liability shall be on the insurer. This amount will also bear interest at 7.5% from the date of FAO No.531 of 1994(O&M) - 4 - petition till date of payment. The amount shall be distributed equally between the widow and the children. The award of the Tribunal is set aside and the appeal is allowed to the above terms. (K.KANNAN) JUDGE 10.02.2011 sanjeev