FAO No.5179 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO No.5179 of 2010 Date of Decision: January 04, 2011 Pepsu Roadways Transport Corporation .......Appellant Versus Hem Lal and others .......Respondents CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr.Gurinder Singh Gill, Advocate for the appellant. <><><> JITENDRA CHAUHAN, J. 1. This appeal has been directed against the award dated 4.11.2009, passed by the Motor Accident Claims Tribunal (Fast Track Court), Karnal (hereinafter to be referred as “the Tribunal”). 2. A claim petition was filed by Hem Lal son of Shri Warainch Lal under Sections 166 and 140 of the Motor Vehicles Act, in the capacity of legal representative of his brother i.e. deceased Pawan son of Warainch Lal, who died in road accident on 20.11.2007 claiming compensation for his death. 3. The brief facts of the case are that the claimant is brother of the deceased, Pawan, who was aged 45 years at the time of death. It was averred by the claimant that the offending bus was being driven by Malkit FAO No.5179 of 2010 2 Singh ( respondent No.2 herein), at a very high speed and in a rash and negligent manner without observing traffic rules. Due to the rash and negligent driving of respondent No.2, the deceased was hit by the bus and suffered head injury and later on, succumbed to his injuries. The claimant lodged the FIR No.402 under sections 279/304-A of the Indian Penal Code on 20.11.2007. The appellant, owner of the bus and respondent No.2 appeared before the Tribunal and filed their written statement wherein both of them denied all the allegations levelled against them by the claimant in the claim petition. It was asserted that the claim petition was not maintainable against the respondents as no accident had taken place with their bus. In that eventuality, the Tribunal came to the conclusion that the accident was caused by the vehicle owned by the appellant- Pepsu Road Transport Corporation and respondent No.4 will be responsible to pay compensation as the vehicle in question was insured with the said Company. The learned Tribunal framed the following issues on 9.6.2008: 1) Whether the motor vehicular accident which took place on 20.11.2007 was caused due to rash and negligent driving of Bus bearing registration No.PB-11AB-08580 by Malkit Singh, respondent No.1 and in which Pawan son of Warainch Lal had died. If so, its effect? OPP 2) If issue No.1 is proved, whether the claimant being L.R. of Pawan deceased are entitled to receive any amount of compensation. How much and from whom? OPP 3) whether the claim petition is not maintainable in present form? OPR 4) Whether the claimant has not come to the court with clean hands and has suppressed the true and material facts from the court? OPR 5) Whether the claim petition is bad for mis-joinder of FAO No.5179 of 2010 3 unnecessary party and non-joinder of necessary party? OPR 6) Whether the claimant has got no cause of action?OPR 7) Relief. 4. The learned Tribunal decided issue No.1 in favour of the claimant holding that the accident took place due to rash and negligent driving of driver Malkit Singh, respondent No.2. While deciding issue No.2, the claimant was held entitled to receive compensation of Rs.1,98,200/- along with interest @ 7.5% per annum from the date of filing of the claim petition till its realisation. Issues No.3 to 6 were also answered against the appellant-Pepsu Road Transport Corporation and respondent No.2. 5. While dealing with issue No.1, the learned Tribunal relied on the site plan, Exhibit P1, which depicted the place of occurrence and the manner in which accident took place. The claimant also filed a copy of the charge sheet, Exhibit P2, whereby Malkit Singh, respondent No.2, was facing trial under Sections 279/304-A of the Indian Penal Code. As per the ration card, Exhibit P6, deceased-Pawan Kumar was residing with the claimant-Hem Lal as the former died issueless. The respondents in the claim petition did not examine any witness in their defence and rather respondents No.2 and 4 were given up by the learned counsel for the claimant being unnecessary. 6. Raj Kumar, son of Warainch appeared as PW1, before the learned Tribunal and tendered his affidavit, Exhibit P1, and also deposed that on 20.11.2007,while he was going to Bus Stand Gharaunda at 11.30 a.m., his younger brother Pawan Kumar, who was unmarried, was crossing the road. He was run over by bus bearing No.PB-11-AB 8580 and his FAO No.5179 of 2010 4 brother died at the spot. He has further deposed that name of the driver was Malkit Singh son of Sohan Singh, resident of Hoshiarpur. The deceased, who was his younger brother, was working as a Mason. He has denied the suggestion that the deceased was mentally retarded by birth. 7. No evidence was led by the respondents. 8. There is no dispute regarding the ownership of the bus in question which was being driven by Malkit Singh-respondent No.2. Nothing has come on record to contradict the statement of the claimant that the accident has not occurred in the manner stated by him. The version of the claimant that the accident took place due to rash and negligent driving on the part of Malkit Singh-respondent No.2, is duly established by the statement of the claimant and the FIR, Exhibit P4, registered against the driver Malkit Singh under Sections 279/304-A of the Indian Penal Code. From the perusal of documents, Exhibits P1 to P4, it is duly proved that respondent No.1 had been facing trial in FIR No.402 dated 20.11.2007 pertaining to the accident in question. Raj Kumar, PW1, in his deposition has categorically stated that the accident took place due to rash and negligent driving of respondent No.2. No evidence was led by the owner and the driver to rebut the evidence led by the petitioner-claimant. From the perusal of the record, it was proved that respondent No.1 had caused the accident and the present appellant is the owner of the vehicle in question. The learned Tribunal has examined the entire evidence on record led by both the parties. On re-scanning and re-appreciation of the evidence, I feel that no interference is called with the finding of the Tribunal on issue No.1. 9. The learned Tribunal on the basis of evidence led by the claimant assessed the income of the deceased at Rs.2,000/- per month. It is FAO No.5179 of 2010 5 proved from the ration card that the deceased, who was 45 years of age at the time of death, had been living with the claimant-respondent No.1. It can be safely presumed that the deceased being a Mason must have been earning Rs.2,000/- per month. The learned Tribunal while assessing the income of the deceased applied a cut of 1/3rd on account of personal expenditure being incurred by the deceased for his own maintenance. The Tribunal applied a multiplier of 14 for calculating the amount of compensation payable to the claimant. So far as the question of liability to pay compensation is concerned, the Tribunal held the driver and the owner (respondents No.1 and 3 in the claim petition) of the offending bus, jointly and severally liable for paying the compensation. No illegality or any perversity could be pointed out by the counsel for the appellant to persuade this Court to interfere with the aforesaid findings of the Tribunal. 10. Resultantly, the present appeal is dismissed in limine. The award dated 4.11.2009, passed by the learned Tribunal, is maintained. ( JITENDRA CHAUHAN ) January 04, 2011 JUDGE SRM Note: Whether to be referred to reporter ? Yes/No