F.A.O.NO. 1542 OF 2009, F.A.O.NO. 1543 of 2009 and 1 F.A.O.NO. 1275 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 1542 OF 2009 Date of decision:27th August, 2010 National Insurance Company Ltd. .......Appellant Versus Santosh and others ........Respondents F.A.O.NO. 1543 of 2009 National Insurance Company Ltd. .......Appellant Versus Vasdev Sharma and others ........Respondents Civil Misc. No. 21876-CII of 2009 and F.A.O.NO. 1275 of 2009 Vasdev Sharma and others .......Appellant Versus Satbir and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Paul S.Saini, Advocate, for the appellant. Mr. Amit Singla, Advocate, for the owner and driver. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) F.A.O.NO. 1542 OF 2009, F.A.O.NO. 1543 of 2009 and 2 F.A.O.NO. 1275 of 2009 1. The Civil Misc. application No. 21876-CII of 2009 is to recall the order which was passed on 7.07.2009 by the learned judge who has observed that the Insurance Company was prepared to make offer of Rs. 10,000/- towards transportation charges. This amount therefore, provided as an additional sum and the appeal was disposed of. On that basis I see no scope for recalling such an order which was passed on consent. The application for recalling the order is dismissed and the order already passed on 7.07.2009 stands confirmed. 2. FAO Nos. 1542 and 1543 of 2009 arise out of common set of facts. It is case of a car driven by Satbir which hit against a tree, in the attempt of the driver to avoid running a vehicle against a cow that darted across the order. The DDR is said to have made reference to the cattle coming across the road and which resulted in the accident by the driver hitting against the tree. The claims were by the representatives of the deceased and by another passenger in the car who had been injured. 3. Learned counsel for the Insurance Company would contend, having the benefit of defence on all grounds under Section 170 of the Motor Vehicles Act that the driver had not been negligent. The Tribunal which had taken note of the DDR must have taken the recital in its entirety. The accident was inevitable in the manner in which the incident was narrated and the driver could not be called as having been negligent. I am not prepared to accept such a plea even if all the recitals in the DDR F.A.O.NO. 1542 OF 2009, F.A.O.NO. 1543 of 2009 and 3 F.A.O.NO. 1275 of 2009 were to be accepted as correct. Person who attempted to avoid a cattle is not expected to drive into a tree. The issue of negligence is always seen from a human conduct and not from prospective of any cattle. A person that avoids cattle must be taken to have been negligent if he had hit against the tree that resulted in death of a person. In my view this case depicts a res ipsa loquitur situation that requires no further dilation. All facts examined, the driver was just not careful. If he could not avoid hitting a tree even while avoiding cattle, he had done enough harm by hitting a tree that caused the death of a person. It is also contended by the counsel that there was no criminal case registered against the driver of the vehicle. I am of the view that it is irrelevant while considering the case of negligence for assessing compensation before a Tribunal. Under circumstances the award of the Tribunal is confirmed with reference to the finding regarding the negligence. 4. Even as regards the claim petition i.e. FAO NO. 1275 of 2009, relating to compensation for death of the individual Ishwar who was aged 45 years, the Tribunal referred to the fact that he was a teacher in a Government High School drawing a salary of Rs. 16,133/-. The Tribunal adopted a Multiplier of 13 after providing for deduction of 1/3rd for a regular employee. The Tribunal did not however factor the possibility of future increase in salary. The amount of compensation in the award is under circumstance perfectly justified if not even lower than what could F.A.O.NO. 1542 OF 2009, F.A.O.NO. 1543 of 2009 and 4 F.A.O.NO. 1275 of 2009 have been given by the Tribunal. 5. As regards the claim for compensation for injuries sustained in the accident, the evidence on record showed that he had suffered 48% disability due to the injury in the spinal chord that has resulted in loss of free movement and he chould not do any work. The Tribunal has again awarded exceptionally modest compensation for Rs. 1,55,484/-. The appeals are needless exercise, frivolous and are accordingly dismissed. [K.KANNAN] JUDGE 27th August, 2010 Shivani Kaushik