FAO No.1817 of 1997 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. FAO No.1817 of 1997 DATE OF DECISION: January 28, 2011 JEET SINGH & ANOTHER ...APPELLANTS VERSUS RAJINDER SINGH SAINI & OTHERS ...RESPONDENTS 2. FAO No.44 of 1998 BALWINDER SINGH ...APPELLANT VERSUS RAJINDER SINGH SAINI & OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? No 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. MAHARAJ KUMAR, ADVOCATE FOR MR. O.P.S. TANWAR, ADVOCATE FOR THE APPELLANTS. MR. A.S. VIRK, ADVOCATE FOR RESPONDENT NO.1. MR. SANJIV RAI, ADVOCATE FOR MR. NAVEEN KAPOOR, ADVOCATE FOR THE RESONDENTS NO.2 AND 3. K.KANNAN, J.(ORAL) 1. Both the appeals are against dismissal of the claim for compensation. FAO No.1817 of 1997 was for death of 20 year old person who was said to be a Compounder in a private hospital. The claimants were the parents. The claim in FAO No.44 of 1998 was for the person injured in the accident. The accident was said to have been taken place when they FAO No.1817 of 1997 -2- were travelling on the scooter and the deceased was driving the vehicle. The first respondent was owner-driver of the scooter coming from the opposite direction and as per the version of Balwinder who is the claimant in FAO No.44 of 1998, the accident had taken place at the time when respondent No.1 was attempting to overtake a bus and he dashed against the scooter which the deceased was driving resulting in grievous injuries. Both of them had been taken to the hospital and while the driver the scooter died, the pillion rider survived with injuries all over his body. 2. At the trial, the claimants relied on the evidence of Balwinder who was PW5 and yet another person by the name of Ranjit Singh who was said to be an eye witness. The presence of Ranjit Singh was put to test in the cross-examination and it was elicited that he had not given complaint to the police and that he had heard that somebody had informed the police about the accident. He also admitted in the cross-examination that he did not know who lodged the FIR, but he denied the suggestion that he did not see the accident. I am not able to place much weightage on his version, since his presence at the spot seems doubtful. However, PW2 who was most intimately connected with the accident gave evidence about the fact that the scooter driven by respondent No.1 attempted to overtake another bus and it was when the accident took place. This aspect was not cross- examined at all. Only through the evidence of RW1, who was the driver of the other vehicle, there came a denial for the first time that he was going to overtake a bus and only at that time the accident had taken place. The FIR itself had been lodged only at his instance in the afternoon at 3.30 p.m. when the accident had taken place in the morning at around 10.15 a.m. The FIR makes a reference only to the negligent driving of the deceased and FAO No.1817 of 1997 -3- predictably so since the complainant was the driver of other vehicle which was involved in the accident, I will not take the recitals in the FIR as constituting a complete exculpatory circumstance and hold respondent no.1 equally responsible for the accident, since there was evidence to the effect that he was attempting to overtake a bus, I would place a higher share of responsibility for the accident. I will apportion the liability against respondent No.1 and against the deceased in the ratio of 75:25. The finding of the Tribunal that the claimants had established the negligence on the part of respondent No.1 is accordingly set aside. 3. As regards the quantum of compensation, the evidence was that he was earning about `2000/- per month, but the Tribunal observed that he could have earned about `1500/-. I take `1500/- as the basis of income and would provide for 50% deduction and take the contribution to the family at `750/-. I will adopt a multiplier of 9 and find the loss of dependency at `81,000/-. The loss of son in old age when they were dependent on a young son must have meant a serious blow and I would provide loss of love and affection for the parents at `5000/-, `2500/-for loss to estate and `2000/- for funeral expenses. The claimants must have incurred expenditure to the tune of about `10,000/- towards transport and medical expenses for attending to his son when he had been taken from the Military Hospital at Ambala to PGI, Chandigarh. I will, therefore, also provide an additional amount `10,000/-. Having regard to the fact that I find that 75% of the responsibility will have to be apportioned by the first respondent's scooter, the amount of compensation that will become payable will be `75,375/-. This amount will also bear interest 7.5% from the date of petition till the FAO No.1817 of 1997 -4- date of payment. The liability shall be on the insurance company of respondent No.1 who is arrayed as respondent No.2 in the appeal. 4. As regards the claim in FAO No.44 of 1998, there could have been no abatement of the claim at all. The dismissal of the petition was wholly wrong, since a contributory negligence cannot be attributed to a pillion rider. The claimant was said to be injured and the certificate of the Doctor shows that he had Myalgia with leg pain and he was advised rest for a week. The evidence was that he was earning `1500/- per month and due to injuries he could not work for about 2 months. He gave evidence to the effect that he had suffered `2000/- loss. I do not find any basis for such a contention. However, I will award `10,000/- towards pain and suffering, loss of income and for medicines and transportation. This amount will also attract interest @ 7.5% from the date of petition till the date of payment. The insurance companies for both the vehicles are very same company and therefore, I will not make any apportionment as regards the same. I will grant the claimant a liberty to enforce the same against respondents No.2 and 3. 5. Both the appeals are allowed to the above extent. January 28, 2011 (K.KANNAN) Gulati JUDGE