FAO No.289 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.289 of 1987 DATE OF DECISION: January 6, 2011 SMT. LUXMI DEVI AND OTHERS ...APPELLANTS VERSUS DALBIR SINGH AND ANOTHER ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement. Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. RAJAT PANJETA, ADVOCATE FOR MR. R.S. CHAHAR, ADVOCATE FOR THE APPELLANT. MR. L.M. SURI, SR.ADVOCATE WITH MR. NEERAJ KHANNA, ADVOCATE FOR THE RESPONDENT NO.1. NONE FOR RESPONDENT NO.2. K.KANNAN, J.(ORAL) 1. Both the appeals arise out of the same accident. FAO No.289 of 1987 is for enhancement of claim of compensation for the death of an Army personnel who was aged 33 years. The claimants were the widow, four minor children and aged parents. The evidence before the Tribunal was that the deceased was driving a cycle and he was followed by his own father on a yet another cycle, when the vehicle driven by the respondent No.1 before petition and owned by respondent No.2 dashed against the cyclist causing him grievous injuries to which he ultimately succumbed. The contention on behalf of the owner was that the report of the motor mechanic disclosed that the car had been dented on the right side which FAO No.289 of 1987 -2- only meant that the cyclist must have come from the right side and the accident having taken place on a National Highway the cyclist was negligent in crossing the road from right hand side without noticing the oncoming vehicle on the Highway. The contention, therefore, was that there was no negligence at all and even the award passed by the Tribunal against the owner was erroneous and which is subject of challenge in FAO No.428 of 1987. 2. I am not prepared to accede to the contention raised on behalf of the owner that the dent on the right side of the vehicle would show that the cyclist had come from right side and got dashed against the motor car. The eye witness account was that the cyclist was riding the cycle on the left side and any dent in the vehicle on the right side of the vehicle was still possible if the driver had gone to the extreme left side of the road and attempted to overtake the cyclist from the wrong side. In any event, the matter of evidence relating to negligence between the cyclist and the driver of the motor car, I would lean in favour of the cyclist to hold that the driver of the motor car which is capable of being driving at a higher speed must be more careful in using the road than a pedestrian or a cyclist. This Court has had an occasion to deal with the issue in the manner of appreciation of evidence involving collisions between motor cars and cyclist in a decision in FAO No.48 of 1991 dated 6.12.2010. I have held in the above judgement as follows:- “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. FAO No.289 of 1987 -3- Any driver of a motor cycle ought to now 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 b y a pedestrian or a cyclist. It will be loathe 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 an 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. 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.” 3. I would, therefore, sustain the finding of the Tribunal that the accident arose only on account of the negligence of the driver of the car and consequently the FAO No.428 of 1987 is dismissed. 4. As regards the quantum of compensation, the deceased was an Army personnel earning `1500/- per month. He surely had a prospect of FAO No.289 of 1987 -4- increase in salary and I would estimate at 50% of his salary which he was drawing at the time of his death and take an average salary of `2250/-. He had a larger family to support and I would make a deduction of 1/5th and take the monthly contribution of `1800/-. He was 32 years of age and therefore, I would apply a multiplier of 16 and find the loss of dependency at `3,45,600/-. I would add `5000/- towards loss of consortium and `2500/- for each one of the children. I would also provide for loss of estate at `5000/- and funeral expenses at `2500/-. The total amount of compensation that will be payable is `3,68,100/-. The amount now determined over and above of what has been awarded by the Tribunal will bear interest @ 6% from the date of petition till the date of payment. The enhanced portion of the amount of compensation shall be divided amongst the wife and the children of the deceased. The liability amongst the respondents shall be in the manner determined by the Tribunal. 5. The appeal for enhancement in FAO No.289 of 1987 is allowed to the above extent. January 6, 2011 (K.KANNAN) Gulati JUDGE