FAO No. 915 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 915 of 1994 Date of decision 18.2.2010. Smt.Bala Devi & others ...... Appellants. versus Ishwar Singh and others ...... Respondents. Present : Mr. Ramesh Hooda, Advocate for the appellants. Mr. Sanjay Vashist, Advocate. Mr. D.P.Gupta, Advocate for respondent No.5. Mr. N.K.Khosla, Advocate for respondent No.6. FAO No. 934 of 1994 State of Haryana and another ...... Appellants. versus Om Parkash and others ...... Respondents. Present : Mr. Himanshu Raj, AAG, Haryana for the appellants. Mr. Ajit Malik Advocate for respondent No.1. Mr. Ramesh Hooda, Advocate for the respondent Nos.2 and 3. Mr. D.P.Gupta, Advocate for respondent No.6. Mr. N.K.Khosla, Advocate for respondent No.5. FAO No. 2351 of 1994 FAO No. 915 of 1994 2 Smt.Bimla Devi & others ...... Appellants. versus Ishwar Singh and others ...... Respondents. Present : Mr. Ramesh Hooda, Advocate for the appellants. Mr. R.A.Sheoran, Advocate for respondent No.1 Mr. Himanshu Raj, AAG, Haryana. Mr. Ashwani Talwar, Advocate for Insurance Company. K.C.PURI. J. By this common order, I intend to dispose of FAO No. 915 of 1994- Smt.Bala Devi & others versus Ishwar Singh and others, FAO No. 934 of 1994 State of Haryana and another versus Om Parkash and others and FAO No. 2351 of 1994 Smt.Bimla Devi & others versus Ishwar Singh and others, as these appeals arise from the same award. For convenience facts are being taken in FAO No.915 of 1994. The brief facts as set out in the claim petitions are that on 11.6.1992 Jagbir was driving Jeep bearing No. DL-IC-B-7765, loaded with a number of persons including Om Parkash, Inderpal, Satbir, Dhan Singh and Surajbhan, who had to go to village Tikan Kalan to support Jot Ram Sarpanch in the elections of Panchayat Samitee. When they were returning to their village and reached in the area of village Loharbara, Haryana FAO No. 915 of 1994 3 Roadways bus bearing registration No. HYR 9302 came from the opposite side viz. Delhi side and struck against the back portion of the jeep. As a result of the impact of the accident, the axel of the jeep got damaged and the jeep fell down in the pit. It is alleged that at that time the bus was being driven by Ishwar Singh, respondent No.1 rashly and negligently and he was responsible for causing the accident. It is further alleged that Surajbhan, one of the occupants of the jeep, died at the spot whereas Jagbir Singh sustained grievous injuries and died later on. The other occupants of the jeep also sustained injuries. FIR No. 229 of 1991 was lodged in the police station, Sadar Dadri by Om Parkash, inmate of the jeep. Petition No. 50 of 1992 has been commenced by Smt. Bala Devi and others seeking compensation to the tune of Rs.3 lacs on account of the death of Surajbhan in the accident as aforesaid. Petitioner No.1 Bala Devi is the widow of Surajbhan while petitioner No.2 Vikas is son, petitioner No.3 Sonia, petitioner no.4, Kavita, petitioner no.5 Monika are the daughters of deceased Surajbhan and petitioner No.6 Satender is son of Surajbhan. It is stated that Surajbhan was 35 years of age at the time of his death and was earning Rs.3000/- per month. The respondents contested the petition on number of grounds. It was inter-alia contended that no cause of action has accrued to the petitioners and the petition is vague and incomplete and lacks of material particulars that the petition is bad on account of mis-joinder of parties and that the petition is not maintainable and is mala fide. It is denied that deceased Surajbhan was earning Rs.2000/- In fact, it is contended that the accident took place on account of rash and negligent act of the driver of the jeep and the compensation sought is exorbitant and excessive. It is FAO No. 915 of 1994 4 contended that Jagbir was driving the Jeep at breakneck speed and struck against the bus which was coming from the opposite direction. It is pointed out that the driver of the bus saw that movements of the jeep was a zig zag manner. He brought the bus on the extreme left side of the road and tried his best to avoid the accident and he had used dipper but the driver of the jeep lost control and was under the influence of intoxication. The jeep, it is contended, was carrying passengers and the Insurance company is not liable to pay the compensation. The jeep was full of 15-16 persons and was being driven against the terms and conditions of the policy. The driver of the jeep was also not having a valid driving licence and, hence committed breach of the terms and conditions of the policy. The jeep it is pointed out could be used only for private use and Insurance company is not liable to indemnify the owner. On the pleadings of the parties, following issues were framed:- 1. Whether the accident had taken place owing to the rash and negligent act of respondent No.1 Ishwar Singh ? 2. To what amount of compensation are the petitioners entitled and against whom? 3. Relief. The Tribunal after recording evidence of both the parties, allowed the claim petition and held that both the drivers were responsible for causing the accident and awarded Rs.78,000/- to the claimants- appellants. Out of the said amount Rs.40,000/- were ordered to be paid to petitioner Bala Devi widow of deceased Surajbhan and remaining amount was ordered to be paid to the remaining claimants equally along with FAO No. 915 of 1994 5 interest at the rate of 12% per annum. Feeling dis-satisfied with the aforesaid awarded amount, the claimant-appellant preferred this appeal. The appeal preferred by Smt. Bimla Devi and others against the award passed by the Motor Accident Claims Tribunal vide which their claim stood dismissed by the Tribunal holding that they were not entitled for the compensation amount. The State of Haryana also preferred appeal for setting aside of the impugned Award. I have heard the learned counsel for the parties and have gone through the records of the case. Claim petition No.49 of 1992 was preferred by legal heirs of Jagbir Singh driver of Jeep No.DL-1C-7765 (hereinafter mentioned as Jeep) whereas petition No.50 of 1992 has been preferred by Bala Devi claimant claiming compensation to the tune of Rs.3,00,000/- on account of death of Suraj Bhan in the motor vehicular accident. Both these claim petitions were clubbed together and ultimately were decided vide Award dated 26.10.1993. The claim, Petition No.49 was preferred by Smt.Bimla Devi etc., was ultimately dismissed holding that accident has taken place due to contributory negligence of Jagbir Singh driver of the Jeep and Ishwar Singh driver of the bus. Petition No.50 of 1992 Bala Devi and others was accepted and legal representatives of Suraj Bhan were held entitled to claim Rs.78,000/-. Feeling dis-satisfied with the above said Award Bala Rani etc. FAO No. 915 of 1994 6 have filed FAO No.915 of 1994 for setting aside the order and for grant of compensation. Bimla Devi etc. have preferred FAO No.2351 of 1994 for enhancement of compensation. Om Parkash son of Siri Ram, who was travelling in jeep, referred to above, filed claim petition No.68 of 1992. The said claim petition regarding injury of Om Parkash was accepted by Shri A.,S.Garg, Motor Accident Claims Tribunal vide judgment dated 9.2.1994 . Om Parkash was allowed an amount of Rs.2,00,000/- along with interest @ 12% per annum from the date of application till recovery, holding that accident has taken place due to rash and negligent driving of Bus No.HYR-9302 by Ishwar Singh-respondent. Feeling dis-satisfied with the above said Award, the State of Haryana has preferred FAO No.934 of 1992 for dismissal of the claim petition or in the alternative for reduction of amount of compensation. Since all these appeals have arisen out of the one accident, although two different Awards have been given by two Tribunals of Bhiwani, giving contradictory finding about negligence and as such all these three appeals are being decided with the common order. I have heard learned counsel for the parties and have gone through the records of the case. The main controversy in all the present three appeals FAO No.915 of 1994, FAO No.934 of 1994 and FAO No.2351 of 1992 is whether the accident has taken place due to rash and negligent driving of bus, rash and negligent driving of driver of the jeep or on account of contributory negligence of driver of bus Ishwar Singh and driver of jeep FAO No. 915 of 1994 7 deceased-Raghbir Singh. In claim petition Nos.49 and 50 of 1992, as detailed above, Shri S..N.Chadha, Motor Accident Claims Tribunal, returned the finding that accident has taken place due to contributory negligence of driver of jeep and as well as driver of bus. In petition No.68 of 1992, the Tribunal headed by Shri A.S.Garg, Motor Accident Claims Tribunal held that accident has taken place due to rash and negligent driving of bus driver. It is a matter of grave concern that although similar nature of evidence have been led regarding negligence of driver of bus and jeep but contradictory finding has been given by two different Tribunals. The best course in the present case would have been that all the cases arisen out of the one accident, should have been entrusted to the one Court for adjudication to avoid any contradictory finding regarding negligence, but the same has not been done in the present case. So, in these circumstances, the evidence produced in both the cases has to be re-appreciated. In claim petition Nos.49 and 50, referred to above, the claimants examined Om Parkash (PW-4), who has stated that he was sitting in a jeep and were coming to Dadri. He, Vijender,Surajbhan, Satbir, Ran Singh, Inderpal etc were sitting in the said jeep. Jagbir Singh alias Kala was driving the jeep. The speed of the jeep was 30 k.m. per hour. A bus belonging to Haryana Roadways came from opposite direction at a very high speed and was being driven in a zig zag manner. Jeep driver died in the hospital. This witness and Ram Singh received injuries. He has further stated that on the basis of his submission criminal case was registered against the driver of the bus. Suggestion has been put to this witness that FAO No. 915 of 1994 8 jeep was being driven rashly and negligently by its driver. In rebuttal in the said case, respondent examined Rajbir Singh (RW-1), who has stated that he was occupant of Haryana Roadways Bus on 11.6.1992. He had produced the ticket which is mark D-1. When the bus reached near village Loharbara, a jeep was spotted coming from opposite direction coming at a very high speed and in a zig zag manner. The bus driver brought the bus to stand still and parked on the left side of the road on the kacha. The jeep struck with the driver's side of the bus. The bus was being driven by Ishwar Singh driver. The accident had taken place on account of fault of the jeep driver. In the cross-examination, this witness has stated that he suffered injuries in the accident but he was not medico legally examined. The bus driver did not sustain any injury. About 10-20 passengers of the bus suffered injuries. The other witness examined by the respondent is Ishwar Singh driver of the bus, who has stated that he was driving the Haryana Roadways Bus on 11.6.1992. He had left Dehli for Dadri about 6.00p.m. When he reached near Loharbara, he spotted the jeep coming from the side of Dadri at a very high speed and in a zig zag manner. The passengers of the bus also told him that jeep was coming from front side rashly and negligently at a very high speed. He has further stated that he slow down the bus and brought it virtually on the left side of the road. The excel of the jeep was broken and jeep struck against the bus on the driver's side on the rear. There were 15-16 passengers travelling in the said jeep. The accident has taken place due to fault of jeep driver. While appreciating the testimony of these witnesses, the Tribunal returned a finding that accident has taken place due to contributory negligence of driver of jeep and driver of bus. FAO No. 915 of 1994 9 MACT PETITION NO.68 of 1992. Claimant Om Parkash, author of the FIR appeared as his own witness and has deposed in the same terms as deposed by him in claim petition Nos.49 and 50, referred to above. In rebuttal Ishwar Singh driver of the offending vehicle appeared as his own witness and deposed on the same terms as in claim Petition Nos.49 and 50, referred to above. However, Rajbir Singh was not examined by Ishwar Singh in claim petition No.68. One another circumstance which is relevant for the decision of this issue is the stand taken by the parties. In all the claim petitions i.e. Nos, 49, 50 and 68 of 1992, the claimants have taken a definite stand that accident has taken place due to rash and neligent driving of the bus in question and FIR has been registered against it. In claim petition Nos.49 and 50 respondent Nos.2,3 and 7 i.e. Owner of the vehicle have pleaded that accident has taken place due to rash and negligent driving of jeep. However, Ishwar Singh in his written statement has pleaded that no accident has taken place with his bus. The jeep driver or the occupants might have received injuries with accident of other vehicle of their own fault. The police in collusion with petitioners has involved him in a false case. The answering respondent is not liable for the alleged accident. Similar stand was taken by State of Haryana in Claim petition No.68 as that of claim petition Nos.49 and 50 referred to above. However, Ishwar Singh has chosen not to contest the petition and he was proceeded ex-parte in petition No.68 in respect of injury to Om Parkash. So, from the pleadings of Ishwar Singh driver, it is clear that in claim petition No.68 , he did not chose to contest the petition whereas in claim petition Nos.49 and 50, the accident with bus in question has been totally denied and FAO No. 915 of 1994 10 it is pleaded that jeep struck against some other vehicle. Now the question arises whether the evidence led by respondents to the effect that accident has taken place due to rash and negligent driving of jeep can be looked into. The answer to that question is in negative. Ishwar Singh driver is the main person who can said about the manner of accident besides Om Parkash. He has not taken stand in any of the claim petition that accident has taken place on account of rash and negligence driving of jeep. So, in these circumstances, the Tribunal has travelled beyond the pleadings to arrive at a conclusion that accident has taken place due to contributory negligence of driver of jeep and driver of bus. FIR has been registered against Ishwar Singh promptly and it is clearly mentioned in that FIR that accident has taken place due to his rash and negligent driving. So, in these circumstances, the finding of the Tribunal on issue No.1 in claim petition Nos.49 and 50 does not sustain the test of legal scrutiny and stands set aside. Ishwar Singh is naturally interested to save himself. So his testimony cannot be given much importance. Raghbir Singh has been examined in claim petition Nos.49 and 50 but he has not been examined in claim petition No.68, although the claim petition No.68 was decided at later date. However, the finding of Tribunal in claim petition No.68 of 1992 on issue No.1 holding that accident has taken place due to rash and negligence driving of driver of bus stands affirmed. Otherwise also, that finding on issue No.1 in claim petition No.68 appeal to the reason. Now the question arises what is the effect of above noted finding on each of the FAOs, detailed above. FAO No.915 of 1994. FAO No. 915 of 1994 11 This FAO has arisen out of the claim petition No.49 filed by Bimla Devi and others claiming the compensation on account of death of Jagbir Singh. The claim petition has been dismissed by the Tribunal on the ground that accident has taken place on account of contributory negligence of Jagbir Singh. However, since that finding has been set aside and as such, the amount of compensation payable to the claimants of FAO No915 of 1994 is being assessed as under :- Smt.Bimla Devi while appearing as PW-1 has stated that claimants are legal heirs of deceased Jagbir Singh. Jagbir Singh was aged about 27-28 years and he used to earn Rs.2000/- as salary and used to pay Rs.1500/- to them. As per copy of the post mortem report Ex.P-1, age of Jagbir Singh was 27 years. Jagbir Singh was driver of jeep and as such his income can be taken as Rs.1500/- per month. The claimants in the present case are six in number, i.e., widow, four minor children and Manphool Singh, father of deceased. So, in view of authority Smt.Sarla Verma and others vs. Delhi Transport Corporation and Anr 2009(3) R.C.R.(Civil) 77, the dependency is calculated as Rs.1125/- per month. The yearly dependency comes to Rs.1125 x 12 = 13,500/-. the deceased was aged about 27 years. So, the multiplier at his age in my view is 17. So, the claimants are held entitled to Rs.2,29,500/- on account of death of Jagbir Singh in a motor vehicular accident. After taking into account the amounts spent on funeral charges, loss of consortium and loss of estate, the claimants are held entitled to claim Rs.2,35,000/- in all. The claimants are also held entitled to claim interest @ 7% per annum from the date of appeal till payment. The liability to pay the amount shall be that of respondent Nos.1 to 3 jointly and severally. So, the said appeal stands accepted. The judgment of the FAO No. 915 of 1994 12 Tribunal stands set aside. The respondents are held liable to pay amount of Rs.2,35,000/- along with interest @ 7% p.a. from the date of appeal till realization. Out of the said amount of Rs.2,35,000/-, respondent No.6 is held entitled to claim Rs.15,000/-, in case he is alive, otherwise the said amount be paid to his legal representatives. Widow shall be entitled to claim Rs.1,00,000/- out of the said amount and amount of Rs.1,20,000/- shall be shared by appellants No.2 to 5 in equal shares. FAO No.934 of 1994. In this case, the Tribunal has awarded an amount of Rs.2,00,000/- on account of chopping off right thumb. Issue No.1, in this connection has already been decided by the tribunal in favour of the claimant and finding of the same has been affirmed, in the earlier part of the judgment. Now rebutting to the quantum of compensation. The claimant in this case has examined Dr.R.P.Talonia, Medical Officer, Community Health Centre, Dighal, who has stated that Ex.PA is the disability certificate in respect of claimant and disability suffered by the claimant is to the extent of 30% as his thumb of the right hand is partly cut rendering him unable to use the said thumb. Ex.PA is the disability certificate in which it is mentioned that Om Parkash claimant suffered amputation of metacarpus joint of right thumb and disability is to the extent of 30%. PW-2 claimant has stated that his right thumb has been cut. The Court has given observation as under :- “.......The witness has shown his amputated thumb and it appears that he possibly cannot use this thumb and the major portion of the thumb has been chopped off.........” He has further stated that he cannot use the right thumb easily FAO No. 915 of 1994 13 and he cannot eat his meals in a normal manner because of the amputation of the right thumb. He has a great pain in the right arm. He has further stated that he has spent Rs.50,000/- on his treatment and cash memos are Ex.P-1 to P-4. He was earning Rs.7000-8000/-. He is a graduate and holding diploma in Physical Education. The learned Tribunal held that the tentative amount looking to the situation as a whole regarding loss of limb is Rs.1,00,000/-. Another amount to which he is entitled is Rs.1,00,000/- as disfigurement, treatment, transportation, treatment and loss of business. The claimant has produced the following bills :- Ex.P-1 for Rs. 50.00ps. Ex.P-2 for Rs.820.00ps. Ex.P-3 for Rs. 70.00ps. Ex.P-4 for Rs.750.00ps. Total Rs. 1690.00ps. The Tribunal has granted an amount of Rs.2,00,000/- in respect of loss of partial thumb whereas has granted Rs.78,000/- only in respect of death of a person. This approach of the Tribunal cannot be appreciated. The compensation awarded by the Tribunal is not a wind fall but should commensurate with the injuries sustained by him. As discussed above, the bills amounting to Rs.1690/- only has been produced. So, at the most the Tribunal could have granted Rs.5000/- regarding medical expenses. The amount of Rs.2,00,000/- in the year 1992 in respect of loss of partial thumb is highly excessive. No doubt right thumb is an important part of the body but it cannot be said that it will lead the claimants incapable of doing the routine works. FAO No. 915 of 1994 14 So, keeping in view whole of the circumstances, the amount of compensation stands reduced to Rs.1,00,000/- instead of Rs.2,00,000/- by partly accepting the appeal of State of Haryana. The liability to pay the said amount of Rs.1,00,000/- is upheld as ordered by the Tribunal in claim petition No.68 of 1992 as that of respondent Nos 1 to 3 jointly and severally liable to pay the same. So, this appeal stands disposed of accordingly. FAO No.2351 of 1992. The Tribunal has taken the income of deceased as Rs.1500/- per month and has deducted 1/3rd amount regarding the income of deceased and in this manner the claimants were held entitled to claim Rs.1,56,000/-. So far as the income of the deceased is concerned that does not call for any interference. However, in this case the claimants are six in number and in view of authority So, in view of authority Smt.Sarla Verma and others' case (supra) the cut in respect of personal expenses should be 1/4th. So, the monthly dependency is calculated asRs.1125/- and yearly dependency is Rs.13,500/-. The multiplier at the age of 31 to 35 as per Smt.Sarla Verma and others' case (supra) is 16. So, the claimants are held entitled to claim Rs.2,16,000/-. After taking into account the amounts spent upon funeral charges, loss of consortium and loss of estate amounting to Rs.5500/-. So, the claimants are held entitled to claim Rs.2,21,500/- in all. The enhanced amount of Rs.1,43,500/- shall be paid along with interest @ 7% per annum from the date of appeal till payment. The liability to pay the amount shall be that of respondent Nos.1 to 3 jointly and severally. The amount shall be distributed as under :- Rs.80,000/- to Smt. Bimla Devi. FAO No. 915 of 1994 15 Remaining amount shall be paid to other appellants in equal shares. However, in case Manphool Singh-appellant is not alive, the amount of his share be paid to his legal representatives. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February 18th, 2010 sv