FAO No. 210 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 210 of 1989 Date of decision 4.3.2010. Smt.Baljinder Kaur alias Balvinder Kaur ...... Appellant. versus Sabeer @ Gulam Sabeer and others ...... Respondents. Present : Mr. Ashok Gupta, Advocate for the appellants. Mr. R.C.Gupta, Advocate for Insurance Company. FAO No. 212 of 1989 Smt.Swaran Kaur and others ...... Appellants. versus Sabeer @ Gulam Sabeer and others ...... Respondents. Present : Mr. Ashok Gupta, Advocate for the appellants. Mr. R.C.Gupta, Advocate for Insurance Company. K.C.PURI. J. Vide this judgment, I intend to dispose of two FAOs, i.e. FAO No.210 of 1989 titled as Smt.Baljinder Kaur alias Balvinder Kaur versus Sabeer @ Gulam Sabeer and others praying for absolving of her FAO No. 210 of 1989 2 liability to pay any compensation whereas FAO No.212 of 1989 titled as Smt.Swaran Kaur and others versus Sabeer @ Gulam Sabeer and others preferred by appellant for absolving of their liability and for enhancement of the compensation. The facts recapitulated from the record is that on 6.6.1987, deceased Swaran Singh Bawa and her daughter Baljinder Kaur left Ambala for Sonepat by a Motor Cycle. It was driven by Swaran Singh and Baljinder Kaur was a pillion rider. When the motor cycle reached near Chauhan Traders Petrol Pump on the G.T. Road in the area of Karnal at 2 p.m. a Maruti car bearing registration No. DBD 2960 came from the opposite side, being driven rashly and negligently by its driver Sabeer @ Gulam Sabeer- respondent No.1 in a zig zag manner. The driver did not blow any horn and dashed it against motor cycle of Swaran Singh Bawa. Due to the impact Baljinder Kaur received multiple injuries whereas Swaran Singh Bawa also received fatal injuries. The occurrence was witnessed by Sunder Dass, who at the relevant time, was present at his Tea stall located on the petrol pump. Both the daughter and the father in an injured condition were removed in another Maruti car to Civil Hospital, Karnal for treatment. In the meantime, a report was lodged with the police and a case against respondent No.1 was registered. Later on Swaran Singh died. Therefore, claimant has filed claim petition, claiming compensation under various heads and in all claimed a sum of Rs.8 lacs by filing this claim petition. A joint written statement was filed by respondent No.1 driver and respondent No.2 owner of the Maruti car respectively. They denied the allegations as set up in the claim petition. According to them, the motor FAO No. 210 of 1989 3 cycle was not driven on its correct side of the road, whereas the Maruti car was not driven rashly, negligently and in a zig zag manner. According to the respondents, the accident took place due to rash and negligent driving of the motor cyclist itself. The driver of the motor cycle had no road sense and drove it on the wrong side of the road and struck the motor cycle against the car. It is a case of contributory negligence. In the written statement filed by respondent No.3, the Insurance Company, the line of defence adopted by respondents No.1 and 2 was adhered to. Additional pleas were taken that the contents of claim petition were denied and that the driver of Maruti car was not holding a valid driving licence at the relevant time. Following issues were framed :- 1. Whether the accident in question took place due to rash and negligent driving of respondent No.1 Sabeer driver of Car No.DBD 2960, as alleged ?OPP. 2. If issue No.1 is proved, to what amount of compensation the claimants are entitled to and from whom ?OPP. 3. Relief. In support of their case, the claimants examined Dr. V.K.Aggarwal, Medical Officer, who conducted post mortem examination on the dead body of Swaran Singh Bawa as (PW-1), Anil Kumar Bogra (PW-2), Sunder Dass (PW-3), Swaran Kaur (PW-4), Baljinder Kaur alias Balvinder Kaur (PW-5) and Surinder Singh (PW-6). In rebuttal, Sabeer Hussain respondent No.1 appeared as RW-1. FAO No. 210 of 1989 4 While deciding issue No.1, the learned Tribunal held contributory negligence of both, car driver and that of motor cyclist to the extent of 60% - 40%. The Tribunal decided issue No.2 in favour of the claimants and awarded Rs.1,80,000/- as compensation along with interest @ 12% per annum from the date of petition till realization. The respondents were held liable jointly and severally to pay the compensation amount. Feeling dis-satisfied with the aforesaid award, the claimant- appellant and the respondent preferred their separate appeals. I have heard the learned counsel for the parties and have gone thorough the records of the case. Learned counsel for the appellant has submitted that the Tribunal has not decided issue No.1 in the right prospective on the basis of evidence on the file. Sunder Dass, the author of FIR Ex.P-2 has categorically stated in the FIR that accident has taken place due to rash and negligent driving of Car bearing registration No. DBD 2960 by Sabeer son of Anwar Hussain. The said FIR was registered immediately after the occurrence. Sunder Dass appeared as witness of the claimant and has supported the case of the claimants on all material particulars. The learned Tribunal on assumption has held that he was not present at the time of occurrence. Another stamped eye-witness Balvinder Kaur, who received injuries in the occurrence, has also supported the case of the claimant on all material particulars. The learned Tribunal has held that there is a 40% negligence on the part of deceased Swaran Singh whereas the negligence of the driver of the car is to the extent of 60%. Mere fact that it is head on collusion does not prove the fact that accident has taken place due to FAO No. 210 of 1989 5 contributory negligence. The said accident has taken place on account of negligence on the part of car driver-Sabeer Hussain. Statement of Sunder Dass eye witness and Balvinder Kaur injured eye witness have not been properly appreciated and undue advantage, to the testimony of Sabeer Hussain driver of the car, has been given by the Tribunal. Learned counsel for the Insurance Company has supported the judgment of the Tribunal and has submitted that it is head on collusion and the Tribunal has rightly held that there is a contributory negligence of driver of the car Sabeer Hussain and on account of negligence on the part of driver of motor cycle-Swaran Singh. So, prayer has been made for affirming the finding on issue No.1. I have given my thoughtful consideration to the rival submission of learned counsel for the parties and have gone through the records of the case. The learned Tribunal has held that Sunder Dass might not be present at the time of occurrence. From the perusal of the FIR Ex.P-2, it is revealed that occurrence has taken place at 2.00p.m. on 6.6.1987. Statement of Sunder Dass, author of the FIR was completed at 6.45p.m. on the same day and DDR regarding occurrence was recorded at 7.15p.m. In the FIR, it has been categorically stated that accident has taken place due to rash and negligent driving of car bearing registration No. DBD 2960 by Sabeer Hussain respondent. Sunder Dass, while appearing as witness has categorically supported the case of the claimant-Balvinder Kaur, injured eye witness, whose presence at the spot cannot be doubted in any manner, has also supported the case of the claimant on all material particulars. Sunder FAO No. 210 of 1989 6 Dass and Balvinder Kaur have been cross-examined at length but nothing could be brought on the file to discard their sworn testimony. In rebuttal Shabeer himself appeared as his own witness, he is an accused in a criminal case. So, he is interested in the success of his case. Mere fact that it is head on collusion is not sufficient to conclude that driver of motor cycle was negligent in driving the vehicle. Both Sunder Dass and Balvinder Kaur have stated that accident has taken place on the left side of the road where Swaran Singh was driving the motor cycle at slow speed. So, in these circumstances, the Tribunal has returned wrong finding that accident has taken place due to contributory negligence of both the vehicles. So, in view of the above discussion, finding on issue No.1 stands set aside and it is held that accident has taken place due to rash and negligent driving of car bearing registration No. DBD 2960 by Sabeer Hussain respondent. The another argument of counsel for the appellants is that an amount of compensation assessed by the Tribunal in respect of death of Swaran Singh and in respect of injuries to Balvinder Kaur is on lower side. However, on re-appreciation of the evidence in this regard, no scope for interference in this regard is made out. The Tribunal has taken the income of deceased as per his salary certificate and dependency has been calculated by taking into account the dependency Rs.400/- on his maintenance out of the income of Rs.2020/-per month. Dependency has been taken as Rs.1600/-. Yearly dependency has been taken as Rs.19,200/- and multiplier of 14 has been applied till the retirement and the multiplier of 2 has been applied after that. The age of deceased Swaran Singh was 44 years. The multiplier FAO No. 210 of 1989 7 is already on higher side. Similarly, the amount assessed regarding compensation to Balvinder Kaur to the tune of Rs.30,000/- also does not call for any interference. However, since the finding on issue No.1 has been reversed, so the cut imposed of 40% in respect of both the appellants cannot sustain the test of legal scrutiny. Consequently, the legal representatives of Swaran Singh are held entitled to claim compensation of Rs.2,98,000/- instead ofRs.1,80,000/- allowed by the Tribunal and claimant-Balvinder Kaur is held entitled to claim Rs.30,000/- instead of Rs.18,000/- assessed by the Tribunal after imposing the cut of Rs.12,000/-. The said enhanced amount shall carry interest @ 7% p.a. from the date of appeal till payment. The liability shall be the same as held by the Tribunal. The amount in respect of death of Swaran Singh shall be shared as ordered by the Tribunal. Both the appeal stand disposed of as indicated above. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE March 4th, 2010 sv