In the High Court of Punjab and Haryana at Chandigarh ...... F.A.O. No.724 of 2008 ..... Date of decision:28.2.2008 Bhupinder Singh and another .....Appellants v. Sureshtha Seth and others .....Respondents .... Present: Mr. Vikas Bahl, Advocate for the appellants. ..... S.S. Saron, J. (Oral) This appeal has been filed against the judgment and award dated 9.10.2007 passed by the Motor Accident Claims Tribunal, Nawanshahar whereby on account of the motor vehicle accident between the truck owned by Harbans Singh (since deceased and now represented by his LR Smt. Surinder Kaur, widow) and Tata Indica car of Rajan Seth (since deceased), a compensation of Rs.5,65,000/- has been awarded in favour of the claimants-respondents. The claimants, who are the successor-in-interest of the deceased Rajan Seth, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (`Act' – for short) inter alia alleging that on 21.11.2003 at about 10.00 a.m. Rajan Seth (since deceased) was coming from Kartarpur towards Nawanshahar in his Tata Indica car. Near Village Bahar Mazara in District Nawanshahar the offending truck was coming from Banga side which was driven by respondent (appellant No.1-Bhupinder Singh) in a rash and negligent manner. The truck came on the wrong side of the road and hit F.A.O. No.724/2008 [2] Tata Indica car driven by Rajan Seth who sustained multiple injuries and died at the spot. The accident was witnessed by Kulwinder Kumar (PW-1) who was riding his cart (Rehra) which was also damaged in the accident as the truck after hitting the car hit the `Rehra'. FIR regarding the occurrence was registered at Police Station Behram on the complaint of Kulwinder Kumar (PW-1) who has witnessed the entire occurrence. The case was registered for the offences under Sections 279, 304-A, 427 and 428 IPC. Bhupinder Singh, respondent No.2-appellant fled away from the scene after causing the accident. The accident occurred on account of rash and negligent driving by respondent No.2-appellant. In the written statement filed on behalf of respondents No.1 and 2, the allegations as made in the petition were denied. It was stated that no alleged accident ever took place nor the vehicle of the respondents (now appellants) was involved in any such alleged accident. The FIR, it is stated, was registered on absolutely false and concocted facts. It is also stated that the deceased was not earning anything. Even otherwise, the amount claimed is highly excessive and exaggerated. The two claim petitions that have been filed by the mother and minor children and by the widow of the deceased were consolidated and tried together vide order dated 23.11.2005 and the evidence was ordered to be recorded in the claim petition filed by the mother and minor children of the deceased Rajan Seth. The learned Tribunal on the basis of evidence and material on record held that the same categorically proved the fact that on 21.11.2003 at about 10.00 a.m. in the area of Village Bahar Mazara respondent No.2 (now appellant No.1) by his rash and negligent driving of F.A.O. No.724/2008 [3] the offending vehicle caused the accident in which Rajan Seth received multiple injuries and died at the spot. Even respondent No.2 (now appellant No.1) while appearing as RW-2 in cross-examination admitted the fact that FIR No.399 had been registered against him in police station on the complaint of Kulwinder Kumar pertaining to the death of Rajan Seth and he was on bail in the said case. It was observed that the respondents (now appellants) had failed to lead any evidence which could show that the death of Rajan Seth which occurred on 21.11.2003 was not because of the rash and negligent driving of Bhupinder Singh. Learned counsel appearing for the appellants has vehemently contended that there has been a misreading of evidence by the learned Tribunal below and that Kulwinder Kumar (PW-1) had clearly stated that both the vehicles were coming from opposite directions and at the time of accident the car of Rajan Seth had not crossed his cart which was on the left side of the road. On the basis of the same, it is contended by learned counsel for the appellants that the truck in question is not remotely shown to be involved in the accident and the truck could not have hit the car and then hit the cart from the rear side which was on the left side. After perusing the evidence of Kulwinder Kumar which is reproduced in para 4 of the grounds of appeal, it may be noticed that Kulwinder Kumar (PW-1), who is the eye witness of the accident, has stated that the truck was coming behind his cart. It was at a distance of 10 feet. The car had not crossed his cart. Thereafter, he denied the suggestion that the car struck against the cart. The cart of Kulwinder Kumar (PW-1) was damaged and his horse also received injuries. He denied the suggestion that F.A.O. No.724/2008 [4] due to high speed car struck against the cart. It is also stated that the truck after the accident struck his cart and it was on the left side. It may well be noticed that unlike in a criminal trial where the guilt of an accused is to be proved beyond shadow of reasonable doubt, a civil liability for claiming compensation can be fastened on the basis of preponderance of evidence and probabilities. The learned Claims Tribunal has considered the evidence of Kulwinder Kumar (PW-1), Dr. Manohar Lal (PW-3) and Constable Dharminder Singh (PW-4). Besides, perused the post-mortem report (Ex.P.1) and FIR (Ex.P.2). On the basis of the same, it was held that it is categorically proved as a fact that on 21.11.2003 at about 10.00 a.m. in the area of Village Behar Mazara respondent No.2 (now appellant No.1) by his rash and negligent driving of the offending vehicle i.e the truck caused the accident in which Rajan Seth received multiple injuries and died at the spot. It may be noticed that in the written statement filed by respondents No.1 and 2 (appellants) the very accident had been denied. The accident in question has been held to be proved. Therefore, in my view, it would not absolve the appellants from the liability that has been fastened on account of having caused the accident by rash and negligent driving. Learned counsel for the appellants has referred to the case of Bijoy Kumar Dugar v. Bidya Dhar Dutta and others, (2006) 3 SCC 242 to contend that when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. A perusal of the said case shows that the Maruti driven therein by the deceased R and the offending bus had a head-on collision. The claims Tribunal did not accept the evidence of (PW-2) to prove that the driver of F.A.O. No.724/2008 [5] the offending vehicle was driving the vehicle at an abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as PW-2 wanted the Tribunal to believe, it was but natural, as a prudent man, for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus coming from the opposite direction from a long distance. It was head-on collision in which both the vehicles were damaged and, unfortunately, R died on the spot. Therefore, the said case is based on its own facts where the evidence of the eye witness to the accident was not accepted and it was held that in a case of head-on collision both the drivers contributed to the accident. In the present case, the Tribunal as a matter of fact has recorded that the accident was due to the rash and negligent driving of Bhupinder Singh (appellant No.1). Learned counsel has further contended that the compensation awarded is unduly high and that since the vehicle is not insured, the driver of the offending vehicle i.e appellant No.1 is not in a position to pay the compensation. It is also contended that Harbans Singh, the owner of the truck has died before filing the claim petition and Smt. Surinder Kaur, his widow was impleaded as respondent and owner of the offending truck. The said contention is also devoid of any merit. The Tribunal held that Smt. Sureshtha (PW-2) proved the fact that she was the mother of the deceased Rajan Seth whereas Charu Seth is the widow of the deceased. Master Mridul Seth and Baby Akriti Seth were the minor children of the deceased Rajan Seth. At the time of accident the registration copy of the truck shows that the truck was owned by Harbans Singh (since deceased). Surinder Kaur (appellant No.2) is the widow and owner of the truck. Varinder Singh and Sukhwinder Singh are the sons of the owner of the truck, namely, F.A.O. No.724/2008 [6] Harbans Singh. The truck was not insured at the time of accident. Accordingly, both the appellants were held liable to contribute 50% compensation towards the liability that was fixed. The deceased was earning Rs.1,05,000/- per annum. The income tax return (Ex.PX) was submitted by Rajan Seth under his own signatures before his death on 25.9.2002. Another income tax return (Ex.P.3) was filed after his death through his LRs which would show that his income was Rs.66,000/- per annum. It was observed that there was nothing on record which could rebut this evidence. The annual income of the deceased was assessed at around Rs.60,000/- and meaning thereby that his monthly income was Rs.5,000/- which he was earning by running his trade of furniture and and a person running business of furniture generally earns Rs.5,000/- per month. Accordingly, it was observed that he must be spending 1/3rd of the amount on himself and Rs.40,000/- per annum was assessed as the dependency. The deceased was about 32 years of age at the time of his death and a multiplier of 14 has been applied and the compensation assessed would amount to Rs.5,60,000/-. The claimants were held entitled to receive the compensation in equal shares. Learned counsel for the appellants has raised objections with regard to the income-tax return (Ex.P.3) being filed by the LRs after his death. However, it may be noticed that if Rs.5,000/- is assessed to be the income of the person who owned Tata Indica car and was running furniture business, it cannot be said that the income assessed is unduly high or unreasonable. In the circumstances, the compensation awarded cannot be said to be unduly high or excessive. F.A.O. No.724/2008 [7] For the forgoing reasons, there is no merit in this appeal and the same is accordingly dismissed. February 28, 2008. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No