FAO No.3393 of 2004 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3393 of 2004 Date of Decision. 15.02.2011 Mukta Chaudhary wife of Dr. Nand Chaudhary son of Gurdial Singh Chaudhary, resident of House known as Chaudhary Niwas, near BDPO Office, Ward No.13, Barara Chowk, Shahabad (M), Tehsil Shahabad, District Kurukshetra ......Appellant Versus Harpal Singh driver of Bus HR-37/1260, Haryana Roadways Chandigarh Depot and others ......Respondents Present: Mr. Anurag Goyal, Advocate and Mr. Ashish Chaudhary, Advocate for the appellant. None for respondent No.1. Mr. Kunal Garg, AAG, Haryana for respondents No.2 and 3. Mr. Inderjit Sharma, Advocate for Mr. Pardeep Bedi, Advocate and Mr. R.C. Gupta, Advocate for respondent No.4. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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. 1. The appeal is against the award of dismissal of the petition for compensation for damages resulting to a building alleged to be owned by the claimant by the act of the driver of Haryana Roadways, who dashed against the building and caused extensive damage to the building. The petition had been originally filed at the instance of Dr. Nand Chaudhary, claiming to be the owner of the building, which had been damaged in FAO No.3393 of 2004 -2- the accident that was said to have taken place on 18.4.2001. During the pendency of the proceeding, the husband had died and the wife had impleaded herself as a party and later moved an application for amendment of the pleading to state that she was herself the owner of the building; that the petition had been originally filed although the husband was owner. As regards the impleadment of the wife as a legal representative after the death of the husband, there had been no objection and therefore, the impleadment was ordered subject to all just exceptions. However, as regards the amendment sought to be made contending that she was herself the owner of the property, an additional written statement was filed by all the respondents denying that she was owner of the property. 2. The petition for compensation was dismissed, inter alia, on the ground that the claimant had not established the ownership with reference to the building. The fact that there has been an accident on 18.4.2001 and that the house in which the claimant was living had been damaged itself was not in dispute. It is in evidence that immediately after the accident, a complaint had been given with the police and the police had also registered a complaint against the driver of the bus for having caused damage to the house. The photographs had also been filed and it showed that the bus had not merely dashed against the car which had remained parked near the gate of house, it had also dashed against the front portion of the building and photograph P/12 showed that there had been a serious damage to the wall of the bathroom and the bathroom fittings had also been seem damaged. 3. The driver filed a reply contending that there had been no FAO No.3393 of 2004 -3- accident at all but in the latter part of the statement, there was an admission of the fact that there was an accident when he attempted to apply the brake, while crossing the road, the brake failed and it dashed against the car which had been parked. His statement, however, was to the effect that no part of the building had been damaged but it had stopped just at the gate of the house. The respondents No.2 and 3, who were the owner of the bus and the State Authorities, filed a written statement accepting that there had been an accident and that there had also been damage to the building. The particular portion of the written statement with reference to the accident would require to be reproduced, for that would show that it was never the contention of the respondents that the building did not belong to the claimant or there had been no accident at all. It could be seen from para 25 as follows:- “....When he reached just ahead of the Shahabad bus stand (near Barara chowk) a truck was going ahead but due to closure of road on their side (left side) the driver of the truck took the brake and crossed over to the right side of the road. However, respondent No.1 also in order to cross over the right side of the road applied the brakes but he found that brakes have failed, therefore, in order to avoid a major mishap he turned the bus towards left side of the road but due to stop there, the bus rolled down on the left side and struck against the Car No.DL-7C-6411 unauthorizedly standing in front of a kothi. Thereafter, the but hit the pillar of the main gate of the kothi and came down to stand still......” 4. The above portion of the written statement, therefore, would FAO No.3393 of 2004 -4- clearly show that there had been no denial of the accident and the fact that the bus had caused damage to the building. The insurance company, however, took up a plea that no notice of accident had been given to the insurer and therefore, there was a denial of all contentions made by the claimant. 5. It was a clear case where a damage had been caused to the building by the act of the driver of the bus and apart from such contention, there was no contention that the claimant had locus standi to file the case or the claimant was making a fictitious claim. The fact was too obvious and in a situation like this, the State Authorities who were the owners of the bus, must have owned up the responsibility and come forward to settle the claim honourably. On the other hand, the respondents were taking irresponsible pleas by allowing the driver to take a plea that there had been no accident at all, later to dilute his statement by saying that there had been an accident but no part of that building had been damaged and the State Authorities themselves filed statements as R2 and R3 conceding the fact of accident but making a plea through the insurer that there had been no claim lodged by them and therefore, the entitlement to make a claim itself was in doubt. 6. It was unfortunate that in a situation like this, the Tribunal must have got deflected to issue which is irrelevant. The question of ownership of building itself was not in dispute. That there had been an accident and that there had been a damage to the building was clearly brought out through evidence. In this case, there was weighty evidence that had been placed by the claimant to establish what she was contending for. Apart from the fact that the FIR had been filed showing FAO No.3393 of 2004 -5- that immediately after the accident, a complaint had been registered with the police, the claimant had also produced the estimation of damage to the building drawn up by an Architect and she had also produced oral and documentary evidence. PW-2 was the mason, who has stated that he had carried out the repair work by constructing the main gate, boundary wall, bathroom and also repairing floor. He had stated that he had received Rs.15,000/- for work. PW-3 was a mason and he had stated that he had been working as a plumber for the last 7 years and he had charged Rs.6,000/- and issued a receipt. That receipt had also been filed as P1. PW-4 was an Architect of the Municipal Committee, Shahabad and he stated that he has been working as an Architect since 1986. He had assessed the damage to the building and certified that he had issued an estimate P2, which had brought out the details of damage to the building and the likely expenses that would require to be incurred for setting the construction back to the same condition. The Architect's estimate was Rs.76,000/- for carrying out the repair. PW-5 was the Ahalmd of the Criminal Court, who had brought the details of FIR and the report of the police issued under Section 173 Cr.P.C. challaning the driver of the vehicle involved in the accident. PW-6 was an ex-employee of Haryana Roadways and stated that he had been been posted as Inspector in Haryana Roadways, Chandigarh Depot and he also stated that he had assessed the damage to the kothi of the claimant and he had made his own assessment of the damage and issued a certificate which was filed and exhibited as Ex.P18. The entire bills for the purchase of cement, paint, plumbing articles and other hardware items had also been produced and exhibited as P3 to P14. I have gone FAO No.3393 of 2004 -6- through these exhibits and I find that they add up to Rs.58121/-. The bills all relate to the period between April 2001 to June 2001 and all those bills related to various hardware items that could have been used for construction activity. I have the evidence of the mason and plumber themselves, who had given evidence to the effect about the charges that they had collected from the claimant. 7. I have already pointed out that there was never an issue of ownership anywhere contested by the respondents in the written statement. If it comes for the first time then after the death of Dr. Chaudhary, who had originally filed the petition and when the wife herself impleaded hereself, she had contended that she herself was the owner of the property and that was denied in a general way. The petition was not for determination of a title to the property and the case was for claiming damage to a building which had resulted in repair works to be undertaken and for a claim for the damage caused. Even if she had been the owner or the ownership had not been established, claimant was still entitled to recover the cost of damage caused to the building in which she was an occupant. Her occupation to the building and the fact that she had carried out repairs through PW-2 and PW-3 could not be impeached. The Tribunal ought to have seen that the defence taken by the respondents was brazenly false and must have awarded the claim holding the claimant to be entitled to damages as she was able to tender proof but unfortunately it had dismissed the petition. I find the approach of the Tribunal to be wholly perverse and therefore, hold that the claimant is entitled to compensation and she had established the fact that the substantial damages had been caused FAO No.3393 of 2004 -7- to the claimant by the act of the respondents. 8. In the evidence of the claimant herself, she has stated that the damages to the property had been to the tune of Rs.1,50,000/- but stated she had incurred Rs.1,00,000/- owing to the fact that she did not have the resources after the life time of her husband. The documents filed in the Court themselves prove that she had produced bills to the extent of Rs.58,121/- and adduced evidence through PW-2 and PW-3 that she had paid Rs.21,000/-. The person that had issued those bills for the labour charges had also given evidence as regards the same. Under the circumstances, the Tribunal must have seen that there was proof for Rs.79121/-. This proximates even to the estimation given by the Architect that the cost of repairs would be about Rs.76,000/-. I would hold, therefore, that the claimant had established her expenses to the tune of Rs.80,000/- and if she was contending that whole damage had not been fully set right and she could not carry out the repairs on account of death of her husband, I would make an additional amount of Rs.20,000/- and hold that the claimant had established that the damage caused to the building was to the extent of Rs.1,00,000/-. 9. This is a case where even without a case being pursued, the authorities on inspection of the building and by the fact that the case had also been registered against the driver, must have owned up the responsibility and they must have come forward with reasonable settlement. The State authorities to engage a private party in long drawn litigation and taking up the irresponsible pleas regarding the fact that the accident had taken place by act of God and that the brake had failed for no fault of their was clearly wrong and the conduct of the FAO No.3393 of 2004 -8- respondents was deprecatory. The insurance company itself was irresponsible in denying the accident and also contending that no such accident had taken place. If there was a plea by the insurance company that the authorities, who had owned the bus, had not informed them, probably there was a different issue which the insurer must have with the respondents No.2 and 3 and that ought not to be found as a justifying circumstance to take up pleas denying the accident and the entitlement of the claimant for making the claim. 10. The claimant is bound to succeed and there shall be an award of Rs.1,00,000/-. The respondents are jointly and severally responsible for satisfying the claim of the claimant. Having regard to the fact that the respondents had been deliberately delaying the matter without settlement and engaging the claimant in a brazenly frivolous defence, the claimant shall be entitle to interest for the claim made @9% and also be entitled to costs which I assess at Rs.25,000/- for the proceedings before the Tribunal as well as in the High Court. 11. The award of the Tribunal is under the circumstances set aside and an award is passed at Rs.1,00,000/- with interest @9% and costs at Rs.25,000/-. The appeal is allowed as above. (K. KANNAN) JUDGE Februrary 15, 2011 Pankaj*