IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 5555 of 2002 Date of Decision : August 25, 2009 Mohinder Singh …..Appellant Versus Charanjit Kaur and others …..Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. D.S. Pheruman, Advocate for the appellant. Mr. B.R. Mahajan, Advocate for respondents No. 1 to 7. T.P.S. MANN, J. Award passed by the Motor Accidents Claims Tribunal, Amritsar on August 20, 2002, whereby the claimants/respondents No.1 to 7 were awarded an amount of Rs.5,55,800/- as compensation on account of death of Tarlochan Singh in a motor vehicular accident, has been challenged by Mohinder Singh, owner of the offending truck by filing the present appeal. According to the claimants/respondents No.1 to 7, the truck bearing registration No. PBM-7578 owned by the appellant was driven by Karsaid-respondent No.8 in a zig-zag manner on 21.9.1997 at about 1.00 P.M. when it struck against the motorcycle driven by Tarlochan Singh as a pillion rider. At that time, Tarlochan Singh was F.A.O. No. 5555 of 2002 accompanied by Sukhbir Singh as a pillion rider. As a result thereof, both Tarlochan Singh and Sukhbir Singh fell down and received injuries. Tarlochan Singh died at the spot whereas Sukhbir Singh died while being removed to a hospital at Patti. Pleading that deceased Tarlochan Singh was 31 years of age and working as a Grading Assistant with Market Committee, Amritsar and having a monthly salary of Rs.4,606/-, the claimants/respondents No.1 to 7, who are widow, minor children and parents of the deceased filed a petition under Section 166 of the Motor Vehicles Act with a prayer that they be awarded an amount of Rs.15,00,000/- as compensation to be paid by the owner and the driver of the offending truck. The claim petition was opposed by the owner and the driver of the offending truck by filing their separate written statements. They denied the averments made in the claim petition that an accident had taken place with truck No. PBM-7578 owned by the appellant. According to them, false FIR had been got registered. They denied the averments regarding the age, salary and the office where the deceased was working. The claimants then filed their replications by denying the averments made by the driver and the owner of the offending truck in their written statements. They reiterated the facts as mentioned in the claim petition. On the basis of the pleadings of the parties, learned Tribunal framed the following issues :- 1. Whether Tarlochan Singh died on 21.9.1997 at 1.00 P.M. in the area of Dialpura due to -2- F.A.O. No. 5555 of 2002 rash and negligent driving of truck No.PBM- 7578 driven by respondent No.2? OPA. 2. Whether the applicants are the legal heirs of deceased Tarlochan Singh ? OPA. 3. Whether the applicants are entitled to compensation. If so, to what amount and from whom ? OPA. 4. Relief. After hearing learned counsel for the parties and going through the evidence and documents on record, learned Tribunal came to a conclusion that on account of rash and negligent driving of the truck by Karsaid-respondent No.8, the accident took place in which Tarlochan Singh died. The claimants were held to be the legal heirs of the deceased. The income of the deceased was assessed as Rs.4,600/- per month and after deducting 1/3rd as expenses of the deceased, the annual dependency was calculated as Rs.33,800/-. Though the age of the deceased was mentioned in the claim petition as 31 years and 32/33 years in the post mortem report yet learned Tribunal was of the view that there could be variation of 2-3 years upto the age of 35 to 40 years and, therefore, multiplier of 16 was applied so as to arrive at the figure of Rs.5,48,800/- as the total dependency. An amount of Rs.5,000/- was granted to the widow as loss of consortium and Rs.2000/- as funeral charges. Resultantly, an amount of Rs.5,55,800/- was granted as compensation to the claimants/ respondents No.1 to 7. -3- F.A.O. No. 5555 of 2002 Learned counsel for the appellant contended that the presence at the spot of AW4 Rakesh Kumar, who claimed to be an eye witness of the accident, was not mentioned in the FIR lodged by Avtar Singh. The number of the truck in question was also not mentioned. Rather, it was stated therein that the driver had run away alongwith the truck. After five days of the occurrence the police planted a false case that it was the truck belonging to the appellant which had met with an accident resulting in the death of Tarlochan Singh. In fact, his truck was taken into possession by the police from his house but wrongly shown to have been recovered from the place of occurrence itself. Mere fact that Karsaid-respondent No.8 stood convicted under Section 304-A IPC was no ground to fasten the liability upon the appellant as the finding of the criminal Court was not binding on the civil Court or on the Tribunal and any such finding had to be given on the basis of evidence adduced before the Tribunal. The FIR Ex.A1 was lodged by Avtar Singh son of Harbans Singh, who stated therein that on 21.9.1997 he alongwith his maternal uncle Jaswant Singh was proceeding on a scooter from Patti to Bhikhiwind so as to pay obeisance at Gurudwara Pahuwind Baba Deep Singh, near Bhikhiwind. They were accompanied by Tarlochan Singh and Sukhbir Singh, who were riding motorcycle bearing registration No.PJB-926. At about 1.00 P.M., when they reached in front of the kacha passage leading to a brick kiln, then from the side of Bhikhiwind a truck being driven at a fast speed, came there. Its driver brought the truck to the wrong side of the road and dashed it against the -4- F.A.O. No. 5555 of 2002 motorcycle, which Tarlochan Singh and Sukhbir Singh were riding. As a result, both of them fell down. In their presence the driver alongwith the truck fled towards Patti. As they became perplexed they could not note down the registration number of the truck. Rakesh Kumar son of Harbans Lal, a Press Reporter of Khem Karan was examined by the claimants as AW4. He deposed that on 21.9.1997 he was coming from Harike and proceeding towards Bhikhiwind via Patti crossing on a scooter. Another scooter and a motorcycle were ahead of him. When he reached brick kiln in the area of village Dialpura, he saw a truck driven in a zig-zag manner. The registration number of the truck was PBM-7578. It struck against the motorcycle by coming to its wrong side on the road. The motorcycle was driven by a person and there was a pillion rider also. The other two scooter riders started looking after the victims of the accident. He tried to help them but Tarlochan Singh died at the spot while Sukhbir Singh died on way to the hospital. He reported the matter in the ‘Daily Ajit’ and sent the report of the accident. According to him, the accident had taken place due to rash and negligent driving of the truck driver. In his cross-examination he stated that when he reached near the place of accident, the truck driver had run away but he had already noted the truck number. He sent his press report on the day following the accident and it was published in ‘Daily Ajit’ after 3/4 days. -5- F.A.O. No. 5555 of 2002 Judgment Ex.PX rendered by the Court of Sub Divisional Magistrate, Patti on 25.1.2007 while convicting and sentencing respondent No.8 under Sections 304-A and 279 IPC was tendered into evidence by the claimants. Though the said judgment cannot be made the basis so as to return a finding in favour of the claimants in the present case yet it can be used to corroborate their version. In the present case, respondent No.8, i.e. driver of the offending truck, while appearing as RW1, denied that any accident had taken place with the truck of the appellant on 21.9.1997 or any person dying on that day yet, in his cross-examination, he admitted that he was arrested from his house but he did not remember the date on which he was arrested. He did not either admit or deny whether it was on 21.9.1997 or any other date. He also admitted that truck No.PBM-7578 was owned by the appellant and he himself was the driver of the truck which he used to ply from Bhikhiwind for going to various local stations. He would carry goods from Bhikhiwind in his truck and often drove from Bhikhiwind to Patti. However, he did not remember about the direction in which he went driving truck No.PBM-7578 on 21.9.1997. It, thus, establishes that Karsaid-respondent No.8 was the driver of the truck on 21.9.1997 and he drove it from Bhikhiwind to Patti. AW3 Dr. Sham Lal Gupta deposed about the post-mortem examination on the dead body of Tarlochan Singh on 21.9.1997. According to him, the dead body was identified by Jaswant Singh and Avtar Singh. It is true that in the FIR Ex.A1, Avtar Singh and Jaswant Singh were stated to have witnessed the accident in which Tarlochan -6- F.A.O. No. 5555 of 2002 Singh had died, however, that, by itself, would not be sufficient to hold that Rakesh Kumar AW4, who is the only witness examined by the claimants as an eye witness of the accident, was not present at the relevant time. He has unequivocally deposed that on 21.9.1997 he was coming from Harike and proceeding towards Bhikhiwind via Patti crossing on a scooter. Another scooter and a motorcycle were ahead of him. When he reached brick kiln in the area of village Dialpura, he saw a truck driven in a rash and negligent manner coming from the opposite side. He noted down the registration number of the truck. The said truck struck against the motorcycle after coming to its wrong side on the road. The two persons, riding a scooter, started looking after the persons, who were on a motorcycle and had received injuries on account of the accident. In the process, the truck driver managed to flee from the spot. This witness sent his press report on the day following the accident and it was published in ‘Daily Ajit’ after 3/4 days. The driver and the owner of the offending truck thoroughly cross- examined AW4 Rakesh Kumar but could not elicit any material so as to shatter his testimony. They also did not suggest to him as to why he was deposing against them. The driver of the truck stepped into the witness box as RW1 and he denied causing of any accident on 21.9.1997. He, however, admitted that he was employed as a driver of the truck owned by Mohinder Singh. He had been driving the truck bearing No. PBM- 7578 from Bhikhiwind towards local stations. When asked as to in which direction he drove the truck on 21.9.1997, he stated that he did -7- F.A.O. No. 5555 of 2002 not remember. He also stated that sometimes he carried goods from Bhikhiwind in his truck and often from Bhikhiwind to Patti. He stated that he was arrested from his house but he did not remember the date on which he was arrested. However, he neither admitted nor denied about having been arrested on 21.9.1997 or any other date. From his testimony it stands established that he was the one who was employed as a driver by Mohinder Singh on his truck No. PBM-7578. This truck used to be driven by RW1 Karsaid for carrying goods from Bhikhiwind towards various nearby stations and often from Bhikhiwind to Patti. He feigned ignorance about the direction in which he drove the truck on 21.9.1997. He also could not deny that he was arrested on 21.9.1997. Mohinder Singh, owner of the truck did not step into the witness box to deny the factum of the accident. As the identity of the offending truck stood established from the testimony of AW4 Rakesh Kumar, therefore, it was either the owner of the truck or its driver, who could be present at the time of the accident. However, there is no explanation from anyone of them as to how the truck bearing No. PBM-7578 was spotted at the place of the accident if it did not cause the accident. Karsaid- respondent No.8 stood convicted under Sections 304-A and 279 IPC for causing the death of Tarlochan Singh by driving the offending truck in a rash and negligent manner. Under these circumstances, it stands proved that the accident had taken place on account of rash and negligent driving of the offending truck by its driver, as a result of which, Tarlochan Singh died. -8- F.A.O. No. 5555 of 2002 As regards the amount of compensation which has been awarded by the learned Tribunal, there is material available on the record that deceased Tarlochan Singh was earning Rs.4,606/- per month. The deceased was described to be 31 years of age but in the post-mortem report his age was stated as 32/33 years. Learned Tribunal came to the conclusion that the deceased was in the age group of 35 to 40 years and, accordingly, thought it appropriate to apply the multiplier of 16. As the monthly salary was taken as Rs.4,600/-, the annual income was, thus, Rs.55,200/-. After deducting 1/3rd as the expenses which the deceased might be incurring upon himself, the dependency was determined at Rs.33,800/- per annum and, therefore, an amount of Rs.5,48,800/- awarded as compensation, apart from Rs.5,000/- as loss of consortium and Rs.2,000/- as funeral charges so as to award a total amount of Rs.5,55,800/- as compensation. Going back to the calculations, there is an apparent mistake therein. As the annual income was Rs.55,200/- and deducting 1/3rd which the deceased might be spending on himself, the dependency should have been calculated as Rs.36,800/- and not Rs.33,800/- as done by the learned Tribunal. In that situation, the amount of compensation was to be determined as Rs.5,88,800/-, besides Rs.5000/- as loss of consortium and Rs.2000/- as funeral charges for a total compensation amount of Rs.5,95,800/-. As no appeal has been filed by the claimants for enhancement of the amount of compensation, it would not be appropriate to enhance the amount of compensation to Rs.5,95,800/-. -9- F.A.O. No. 5555 of 2002 On the other hand, there is no material on the record to conclude that the amount of compensation awarded by the learned Tribunal was exorbitant and only a lesser amount be awarded as compensation. The deceased was taken to be in the age group of 35 to 40 years and, therefore, multiplier of 16 was rightly applied by the learned Tribunal. The monthly salary of the deceased was proved by the testimony of AW2 Jaspal Singh, Clerk, who had deposed that deceased Tarlochan Singh was working as Grading Assistant in the office of District Mandi Officer, Amritsar and his last drawn salary was Rs.5,312/-, but in his cross-examination, he stated that the total emoluments received by Tarlochan Singh in the month of August 1996 were Rs.4,606/-. In view of the above, there is no force in the appeal and the same is, accordingly, dismissed with no order as to costs. ( T.P.S. MANN ) August 25, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO -10-