IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2773 of 2003 (O&M) Date of decision:06.10.2010 Mohammad Sheikh alias Gabbar and another ....Appellants versus Karan Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. R.S.Mamli, Advocate, for the appellants. Mr. Suman Jain, Advocate, for the Insurance Company. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The appeal is for enhancement of compensation for a death resulting by the death of a boy, aged 9 years, who while standing on the one side of the road, was alleged to have been hit by the insured's jeep. The version of the claimant was contested by the traveller and the driver of the jeep. The evidence in defence was that the deceased boy was chasing a trolley, trying to pull out the sugarcane from it and without noticing the oncoming vehicle, attempted to cross the road when he was hit by the insured's jeep. The Tribunal, therefore, found that there was contributory negligence on the part of the driver and apportioned the liability as 50:50 and made a partial abatement of 50% on the compensation determined at Rs.1,40,000/-. FAO No.2773 of 2003 (O&M) - 2 - 2. The Tribunal chose to prefer over the evidence adduced on the side of the claimants, who were the father and the employer of the father, the evidence of the driver and the passenger in the jeep, who happened to be a gazetted officer. The Tribunal also observed that no reasons were given by the claimants' witness as to why they were standing on the katcha portion of the road and took the particular statement that they were waiting to go to Sector 13 to mean that they were about to cross the road and, therefore, in that process, the accident had taken place. In the case of a pedestrian being run over or hit by a moving motor vehicle, it will not always be seen as appropriate to attribute contributory negligence to a pedestrian. The major use of Indian roads are still pedestrians and a person, who drives the motor vehicle ought to apply greater caution than a pedestrian. The civic response in every country have been to prove for adequate pedestrian platforms but unfortunately in India where they exist, they are trespassed or put to misuse compelling pedestrian to literally walk on roads. This may not be an ideal situation but that is a fact of life that every traveller of a motor vehicle ought to know. In Khaushama Begum Versus New India Assurance Company Limited-(2001) 1 SCC 155, the Hon'ble Supreme Court applied a strict liability norm as laid down in Rylands Versus Fletcher and held that in case of death of a person in a motor accident, the liability shall be construed on the owner/driver of the motor vehicle when the claim arises from a third party. This is not to say contributory negligence cannot exist but it shall be preferably applied only in cases of collision between vehicles but where a pedestrian is FAO No.2773 of 2003 (O&M) - 3 - involved, a different yardstick ought to apply. I will, therefore, not accept the reasoning of the Tribunal that there had been a contributory negligence in equal measure to abate the claim to an extent of 50%. 3. The case relates to an accident that had taken place in the year 2002 and in the judgment of the Hon'ble Supreme Court in Priya Vasant Kalgutkar Versus Murad Shaikh and others-2010 AIR (SC) 40, for the children aged between 5 and 10, the Court found no difficulty in accepting a plea that a notional income could be provided as set out in Schedule-II and adopt a multiplier suitable to it and add a further sum of Rs.50,000/-. This mode of calculation would take the figure to Rs.2 lakhs and instead of Rs.1,40,000/- determined by the Tribunal, I would take the compensation payable at Rs.2 lakhs and having further regard to the fact that I have set aside the plea contributory negligence, the entire amount shall be borne by the Insurance Company. The increased amount over what has been determined by the Tribunal shall bear interest at 6% from the date of the petition till the date of payment. 4. The appeal is allowed on the above terms. (K.KANNAN) JUDGE 06.10.2010 sanjeev