FAO No.2683 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2683 of 2005 Date of Decision: 25.05.2011 Usha Rani and Ors. ... Appellants Versus Barjesh Kumar and Ors. ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present: Mr. Sunil Panwar, Advocate and Mr. Gopal Sharma, Advocate for the appellants. None for respondent No.1. Mr. Kunal Garg, AAG, Haryana, for respondent No.2. Mr. Paul S. Saini, Advocate, for respondent No.3. ***** 1. Whether reporters of local papers may be allowed to see the judgment? NO 2. To be referred to the reporters or not? NO 3. Whether the judgment should be reported in the digest? NO K. KANNAN, J. (Oral) 1. The appeal is against the dismissal of the petition for compensation arising out of the death of a man aged 48 years. The claimants were widow, minor child and the mother. The accident was said to have taken place when the deceased was standing near the Gurdwara Chowk waiting to board a bus after his office hours. The evidence given through PW-3 who claimed to be eyewitness and who had also given the FIR that was registered in less than ten minutes after the accident, was that the vehicle was turning at a hectic speed FAO No.2683 of 2005 -2- and being driven rashly and negligently, the deceased who was a pedestrian on the road, came under the wheels of the bus and got crushed under the tyres. At the time of cross-examination of PW-1, it was suggested to him that he could not have been present at the place since he was not able to recall which part of the tyre ran over the deceased. It was sought to be contended on the side of the respondents that the vehicle was driven very carefully by the driver at a modest speed but the petitioner came under the rear wheels of the bus in his attempt to commit suicide. The Conductor of the bus claimed that passengers in the bus immediately gave statements referring to the fact that the deceased was in a drunken state and was seen like attempting to commit suicide. Amongst the persons who had given statements to the driver one of them was also examined as a witness in Court. 2. If it is a case of suicide it would certainly exclude any element of rash driving of the driver. The point that has to be seen is whether on the evidence let in, it was possible to make an inference that the deceased had come under the rear wheel of the bus only when he was attempting to commit suicide. The statement which was relied on by the respondent was Ex.R/1, which made a reference to the fact that the deceased was heavily under the influence of liquor and he suddenly came under the rear wheel of the bus and committed suicide. 3. Learned counsel appearing for the appellants points out that if he was under the influence of liquor, the postmortem certificate must have definitely shown the presence of liquor in the viscera at the time of postmortem surgery. There was no such substance noticed in the postmortem certificate. Adverting to the evidence of one of the passengers, the counsel FAO No.2683 of 2005 -3- points out that the witness was not prepared to stand wholly to the recitals in the document. The evidence through RW/4 was: “I cannot say whether that person committed suicide or driver was at fault because the person was crushed under the rear tyre of the bus.” He further stated that “he learnt about the accident after the man was crushed under the rear wheel of bus”. A person approaching the bus to deliberately get killed, must have been noticed earlier. If a witness had known that an accident had taken place only after he came under the rear wheel then, he could not have made an inference that he came under the vehicle to commit suicide. If it was a straight road and the pedestrian comes under the rear wheel, there is some scope for a person to contend that unless there was some element of intention to deliberately get killed or a reckless jay-walking along the road, without minding the on coming the bus, the accident could not have happened in the manner that took place. However, it must be remembered that accident took place at a Chowk and the deceased was a pedestrian waiting for the bus. A bus carries a fairly long bay of about 30/40 feet and the front portion of the bus that is steered around a circle, could have swayed to the extremity of the road by centrifugal force and if a person comes under the rear wheel, it is not difficult to reconstruct the scene as a situation of a driver swerving to one side at a fairly high speed and a person standing at the road, got crushed under the tyre of the bus. Normally, in a situation of motor accident where a pedestrian gets killed by a motor vehicle, I will be loathe to infer any element of negligence on the part of pedestrian. It has to be invariably a greater care for a driver of motor vehicle to mind the safety of any pedestrian, even, in a situation where a pedestrian is prone to be careless. I have attempted to dwell on this point in a FAO No.2683 of 2005 -4- decision in FAO No.48 of 1991 titled as Mohindro Devi v. Sukh Ram dated 06.12.2010: “3. I am of the view that the approach of the Tribunal was wholly faulty. Learned counsel for the insurance company would argue that there was no negligence at all of the truck and the accident had taken place only by the negligence of the cyclist. Any driver of a motor cycle ought to know that a cyclist or a pedestrian has just as much use for the road as they have. There shall be a greater degree of circumspection for a driver on a motor vehicle, than a pedestrian or a cyclist. The reasons are obvious. A pedestrian dashing against another pedestrian does not cause death nor a cyclist could cause death to a pedestrian. It is only a faster moving vehicle with heavier mass can cause death by its impact. A person that drives a truck ought to be prepared at any time for even a careless use of the road by a pedestrian or a cyclist. I will be loath to infer an element of negligence for a cyclist or a pedestrian ever. I would, on the other hand, hold a driver of the motor cycle to be always responsible if there results an impact with the cyclist and he comes to harm and in this case, a person was crushed to death. It will be wrong to assume that a driver, who could drive the vehicle carefully, would cause death by the negligence of another. Even an issue of contributory negligence in such situations ought not to be easily inferred. I would, therefore, reverse the finding that the accident took place only by the negligence of the cyclist and that the driver of the truck was careful in his driving.” 4. If I rule out the issue of suicide from the fact that the postmortem did not contain the presence of liquor and if the place of the accident was also not a straight road, I will hold that the alleged statement contained in R-1, was FAO No.2683 of 2005 -5- clearly an attempt to secure some evidence to exculpate the driver who was driving the vehicle at the relevant time. 5. Learned counsel appearing for the Insurance Company also pointed out that a newspaper report carried a story that a Chartered Accountant committed suicide and got crushed under the bus. The newspaper report could seldom be the evidence before the Court and if were to be relied on, the person who had carried that story in the newspaper himself ought to have been examined to give evidence about his personal knowledge of how he made such inference. A Court's duty to make proper inferences would be only through evidence brought before the Court which is acceptable under the Evidence Act and the newspaper report cannot bring such a proof of the fact. 6. I will set aside the finding rendered by the Tribunal and hold that the deceased died only by the rash and negligent driving of the driver of the bus. 7. The question of compensation has to be seen from the context of the person who was a Chartered Accountant and was a partner in the firm. He was an Income Tax Return assessee. The Income Tax Returns filed immediately after the death, shows that he had an income of about lakh of rupees as salary from the firm and as remuneration which he got by lecturing to CA students. There was also another source of income through agriculture which had been assessed at Rs.30,000/-. The proof of ownership of agricultural land was also brought before the Court to show that he had 1/3rd share in about 33 kanals of land. The counsel for the Insurance Company points out that income tax return in the Saral Farm, which was filed by the claimants is related to a period subsequent to the death and, therefore, the FAO No.2683 of 2005 -6- income was deliberately exaggerated. The previous years income which was brought through P-4, shows the income of Rs.74462/- and against agricultural income, no details had been given. Even if it were to be taken that there had been some exaggeration of income through the Income Tax Returns filed subsequent to the death, PW-2 who is widow, gave evidence to the fact that her husband used to give Rs.15,000/- every month for her expenses. A person who was Chartered Accountant and who had faculties of teaching as well for the year 2003, going but the Income Tax Returns, I would take his average income would have been not less than Rs.12,500/- and take the contribution to the family at least at Rs.7,500/-. I would make further addition of Rs.2,500/- p.m. as going towards the loss of managerial skills for the land which he possessed and take the contribution to the family at Rs.10,000/- p.m. I will adopt a multiplier of 13 and hold Rs.15,60,000/- as the loss of dependency. I will make further addition of Rs.15,000/- for loss of consortium to the wife and loss of love and affection for the child and I will make further addition of Rs.5,000/- for funeral expenses. The total amount of compensation will be Rs.15,80,000/-. The amount shall attract interest @ 7.5% p.a. from the date of petition till the date of payment. The amount shall be distributed in the ratio of 2: 2: 1 for the widow, minor son and the mother. 7. Since the accident took place in the year 2003 and already 8 years have elapsed, I will allow for 75% to the amount to be withdrawn and the remaining 25% so far as the share of the widow shall be deposited in a Nationalized Bank for a period of 5 years split into five equal shares, the first share shall be for one year and the second, for a period of two year and so on upto five years. As far as the minor child is concerned, the amount shall stay FAO No.2683 of 2005 -7- in deposit during the entire period of minority and interest shall be paid to the mother guardian quarterly and on attaining majority, the amount shall be permitted to be withdrawn upto 75% and for the remaining 25%, it shall be dealt with in the same manner as provided above for the share of the widow. As for the share of the mother, the same shall become payable forth in the without any direction for deposit. 8. The award is modified and the appeal is allowed to the above extent. The liability shall be against the respondents jointly and severally and the claimants shall be entitled to enforce the award against the insurer. MAY 25, 2011 ( K. KANNAN ) Rajan JUDGE