F.A.O. No. 4209 of 2004 and Cross Objections No. 55.CII of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 4209 of 2004 and Cross Objections No. 55.CII of 2005 Date of decision: August 06, 2014 Gurdip Kaur and others ...Appellants versus Gurjant Singh and others ...Respondents Coram: Hon'ble Mr. Justice Fateh Deep Singh Present: Mr. Tribhawan Singla, Advocate for the appellants Mr. Ravinder Arora, Advocate for Insurance Company-Cross Objector Fateh Deep Singh,J. As both these matters one by way of first appeal and the other being cross-objections have arisen out of the same very award dated 19.7.2004 of the Motor Accident Claims Tribunal, Barnala and thus are being disposed of together for the sake of brevity. The claimants-appellants have sought enhancement of the compensation whereas the objector-insurer claims that they need to be absolved of the liability to pay compensation. DALBIR SINGH TIWANA 2014.08.21 16:27 I attest to the accuracy and integrity of this document. High Court, Chandigarh F.A.O. No. 4209 of 2004 and Cross Objections No. 55.CII of 2005 -2- Briefly the averments are that on 22.5.2002 Sukhpal Singh deceased was going on his motorcycle make Kawasaki bearing registration No. PB-10-AD-5169 (in short ill-fated motorcycle) from Mehal Kalan towards Barnala in the area of Police Station Mehal Kalan offending truck bearing registration No. RJ-31-G-2506 came from the opposite side being driven rashly and negligently by Gurjant Singh and struck against ill-fated motorcycle resulting in injuries and death of the deceased. It is the claim of the claimants who are the widow, minor children and aged mother that the deceased was working as a government teacher in Senior Secondary School, Kaleke earning Rs 11,000/- per month upon which the claimants were dependent and hence sought compensation for their destituteness. The driver and the owner denied the accident and invariably the insurer. The Tribunal awarded a sum of Rs 4,37,500/- along with interest @ 6% per annum. The owner, driver and the insurer were jointly and severally held liable to pay the compensation. After hearing at length Sh. Tribhawan Singla, counsel for the appellants and Sh. Ravinder Arora, counsel for the insurance company-cross objector, the owner as well as driver have not assailed the findings on issue no. 1 as to the manner of the accident which has been held to be on account of rash and negligent driving of the driver of the truck and thus has attained finality. Thus the only remnant question that needs adjudication is DALBIR SINGH TIWANA 2014.08.21 16:27 I attest to the accuracy and integrity of this document. High Court, Chandigarh F.A.O. No. 4209 of 2004 and Cross Objections No. 55.CII of 2005 -3- invariable quantum of compensation and the liability of the insurer. The inter-se relationship though not denied is well highlighted in the testimony of Gurdip Kaur as AW3. The avocation of the deceased is highlighted by AW1 Surjit Singh, Junior Assistant, Government Senior Secondary School, Kaleke who has testified that the last pay drawn by the deceased was to the tune of Rs 9048/- per month and has proved this entry as Ex. A1. It has been elaborated in this cross-examination that the carry home salary of the deceased was Rs 6815/- per month after necessary deductions. Learned counsel for the objectors squarely accepts that there is no evidence led otherwise to contradict this fact as well as the qualification of the deceased who was BA, B.Ed and keeping in view that if the deceased had been alive, he must be spending some amount for his own upkeepment and expenses and in all likelihood must be contributing Rs 4600/- per month to the running of the house hold which is a reasonable amount in this period of rising trend of prices. Therefore, the annual dependency comes to Rs 55,200/-. The deceased at the time of his death was having a son aged around two years and daughter aged around 2 months and has left behind a young widow aged around 24 years. The deceased himself as per post mortem report is shown to be aged around 34 years which apparently as per common knowledge is the peak of one's career and earning capacity. The learned Tribunal as has been submitted by the appellants' counsel Sh. DALBIR SINGH TIWANA 2014.08.21 16:27 I attest to the accuracy and integrity of this document. High Court, Chandigarh F.A.O. No. 4209 of 2004 and Cross Objections No. 55.CII of 2005 -4- Tribhawan Singla has on pure un-authenticated apparently on a premise has held that the personal expenses of the deceased must be around 50% which is contrary to the established norms and is highly un-justified. More so, even the multiplier applied by the Tribunal of 12 is apparently on the lower side. In view of the economic status of the claimants and the deceased as well as their relative ages, it would subserve the ends of justice, if multiplier of 15 is applied and therefore, compensation on this score comes to Rs 8,28,000/-. The young widow has lost a life companion, small kids their father a source of love and protection and aged mother a source of joy and sustenance though no amount of compensation can assuage the feeling of wrong done of the fathomless miseries the family might have undertaken which would have its impact on the future upbringing of the entire family including the kids. Thus under all these factors like loss of estate, loss of consortium, love and affection including funeral expenses which the Tribunal has failed to consider and has only allowed a pittance amount of Rs 5000/- on account of loss of consortium, this Court thus awards a sum of Rs 2 lakh. Thus, total compensation comes to Rs 10,28,000/- (Ten lakh and twenty eight thousand). The findings on issue no. 3 are accordingly modified. However, rate of interest need not be disturbed. The interim compensation, if any, shall be adjusted. Rest of the stipulations in the award remains the same. If any of the minors have attained majority, their share DALBIR SINGH TIWANA 2014.08.21 16:27 I attest to the accuracy and integrity of this document. High Court, Chandigarh F.A.O. No. 4209 of 2004 and Cross Objections No. 55.CII of 2005 -5- shall not be put up by way of FDRs. The very liability of the insurer needs to be appreciated in the light of insurance cover Ex. R5 which shows that at the time of alleged accident the truck was insured under insurance cover of the objector-insurer. The driver has placed on record his licence as Ex. R2 which depicts as is apparent from the discussion on issue no. 4 was in respect of light transport vehicle and the offending truck is shown to be a heavy transport vehicle and therefore, a clear cut violation of sections 3 and 4 of the Motor Vehicles Act, 1988 (in short, Act). Neither the driver nor the owner who are both contesting have ever stepped into witness box and therefore, it is the responsibility of the owner in terms of section 5 of the Act to ensure that no person who is not in possession of a valid and effective driving licence drives the vehicle and which is inviting penal consequences in terms of section 181 of the Act. The learned Tribunal inspite of all these observations has not drawn comprehensive conclusion on issue no. 4. In the totality of the evidence, it needs to be held that in view of the prima facie insurance cover, the claimants are entitled to recover the compensation amount from the owner, driver and insurer jointly and severally. Insurer is at liberty to recover the compensation amount from the driver and owner jointly and severally and thus the insurer is bestowed with recovery rights and issue no. 4 thus is disposed of in those terms. DALBIR SINGH TIWANA 2014.08.21 16:27 I attest to the accuracy and integrity of this document. High Court, Chandigarh F.A.O. No. 4209 of 2004 and Cross Objections No. 55.CII of 2005 -6- No other argument was raised. In view of the foregoing discussions, appeal of the claimants bearing FAO No. 4209 of 2004 is allowed and award is accordingly modified and Cross Objections No. 55.CII of 2005 of Insurer are partly allowed in aforesaid terms. ( Fateh Deep Singh ) August 06, 2014 Judge 'tiwana' DALBIR SINGH TIWANA 2014.08.21 16:27 I attest to the accuracy and integrity of this document. High Court, Chandigarh