FAO No.2575 of 1996 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2575 of 1996 Date of Decision. 17.09.2010 Ashok Kumar son of Shri Dutt, Brahman by caste, resident of village Dhanna, Tehsil Bawani Khera, District Bhiwani (driver of Tata Truck No.HYD-2711) and another ......Appellants Versus Smt. Roshani Devi widow of Inder Singh son of Prem Chand and others ......Respondents Present: None for the appellants. Mr. S.S. Dalal, Advocate for respondent Nos.1 to 5. Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the insurance company-respondent No.6. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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. This is a joint appeal by the insurance company and the owner. In terms of the judgment of the Hon'ble Supreme Court in Chinnama George and others Vs. N.K. Raju and another 2000 (4) SCC 130, the appeal is not maintainable. The learned Senior Counsel seeks that the insurance company may be transposed as a respondent. Accordingly done. The insurance company is cited as 6th respondent. Registry shall carry out the amendment in the memo of parties. FAO No.2575 of 1996 -2- 2. The appeal survives for consideration as an appeal by the owner and driver only. Learned Senior Counsel appearing for the insurance company would contend that the case of negligence was simply not established. RW-1, who was a fellow passenger with the deceased had given evidence to the effect that they were getting down from a tempo in village Kamod and at that time, the insured's truck which came from behind was driven rashly and negligently and hit against the deceased. He fell down and succumbed to injuries. The learned counsel refers to an important contradiction in the evidence when the driver of the truck himself was examined, when it was suggested on the side of the claimants that the accident had taken place by the negligent driving of the driver when the deceased was going on his cycle. It was nobody's case that the deceased was going on a cycle. The substantive evidence through PW-1 is that he got down from tempo. Though only a case of claimant is put as a suggestion in the cross-examination, we can see that what was suggested to the driver of the truck was clearly wrong. I am not prepared to take the wrong suggestion as the basis for finding that the deceased had contributed to the accident as a pedestrian. Between a pedestrian getting killed on the road and a truck driver, I would take a presumption that a person driving a motor vehicle ought to exercise more caution than a pedestrian. After all no one comes on road to get killed. If it so turns out, it should be the owner of a motor vehicle, who must take the blame. While laying down the liability relating to the jurisdiction of a Tribunal to assess evidence for negligence arising out of the evidence tendered in a FAO No.2575 of 1996 -3- Criminal Court, the Hon'ble Supreme Court in Khaushama Begam Vs. New India Assurance Company 2001(1) SCC 155 observed the propensity of weighing the issue of negligence in such a way that it shall not be seen to require a lynxed-eye approach as to whether there existed a negligent conduct by a pedestrian in crossing a road or not. Indeed, the proof of negligence that a claimant has to establish for successfully prosecuting the claim is negligibe. If an accident takes place at a public place and a pedestrian is killed by a motor vehicle, I would hardly doubt that there was no negligence on the part of the driver. A careful driving and killing a person on road can not co-exist. A person does not kill a person carefully. It is an oxymoron. He is invariably negligent in his ways of driving when some one succumbs to injuries by coming in contact with a motor vehicle. I, therefore, confirm the finding that the driver had been negligent in his driving and it was on account of his negligence that was resulted death. 3. As regards the quantum, the evidence was that he used to work as a sales person vending chappals and he was also augmenting his income by selling milk. The wife gave evidence to the effect that he earned about Rs.7,000/- per month. The Tribunal took the income to be Rs.4,000/- and taking note of the fact that he had a wife and a minor child took the contribution to the family at Rs.3,000/-, adopted a multiplier of 16 and arrived at the compensation. The learned counsel vehemently contends that in the absence of any documentary proof, the Tribunal ought not to have provided for such a high income. The Tribunals are manned by FAO No.2575 of 1996 -4- Judges, who have sufficient experience and if in the assessment of such a Tribunal, on evidence by his knowledge of class of people, he had taken the income to be Rs.4,000/-, I would let it rest there and I will not enter into a fresh appraisal of whether it could have been Rs.3,000/- or Rs.2,000/-. Certain approximation is inevitable and if the approximation made by the Tribunal obtains to a slightly high figure, I will not see that to be a cause for interference unless it is so brazenly high and the award itself would otherwise amount to a lottery. A compensation of Rs.5,00,000/- plus awarded in the year 1994, I would still take it to be just and would find no reason to intervene with the award. 4. The award is confirmed and the appeal is dismissed. (K. KANNAN) JUDGE September 17, 2010 Pankaj*