FAO No.1027 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1027 of 1989 Date of decision 19 .4.2010. Niha ( minor) through her mother Smt.Usha Saraf ...... Appellant. versus Mahinder and others ...... Respondents. Present : Mr. J.L.Malhotra, Advocate for the appellant. Mr. N.K.Khosla, Advocate for the Insurance Company. FAO No.1029 of 1989 Jugal Kishore and others ...... Appellants. versus Mahinder and others ...... Respondents. Present : Mr. J.L.Malhotra, Advocate for the appellant. Mr. N.K.Khosla, Advocate for the Insurance Company. K.C.PURI. J. By this common order I intend to dispose of FAO No.1027 of 1989 Nihar ( minor) through her mother Smt. Usha Saraf versus Mahinder and others and FAO No.1029 of 1989 Jugal Kishore and others versus Mahinder and others, as both these appeals arise out FAO No.1027 of 1989 2 of the same award and incident. These appeals have been directed by the appellants for enhancement of the compensation amount. The facts are being taken from FAO No.1027 of 1989. The case of the claimants in brief is that on 31.5.1987, the engagement ceremony of Anupma, niece of Jugal Kishore, was to be solemnized at Rohtak. Jugal Kishore, along with his wife Kanwal Vij, his brother Salil Kumar, sister Usha Saraf, Niha (sister's daughter) were coming from Kaithal to Rohtak in their car No.HYR-6308. At about 10.00 a.m., when they reached Jind Chowk at about 10.00 a.m. and were going towards Rohtak City, the driver of the car saw oil tanker bearing registration no. HYO-2255, coming from Sukhpura chowk, which was being driven in a rash and negligent and careless manner. Salil Kumar, who was driving the car at moderate speed, slowed down his car but the tanker driver Mahinder Kumar- respondent No.1, struck the right side of his vehicle against the car, dragging the car towards Hisar road. The tanker turned turtle. The occupants of the car received injuries Smt.Kanwal Vij was taken to Medical College, Rohtak in another car but she was declared dead by the doctor. As a result of this accident, the car caught fire and other occupants of the car received burn injuries. Mahinder Kumar respondent No.1 was driving the vehicle, namely, the tanker as employee of Brij Mohan respondent No.2. Respondent No.2 is also liable for the payment of the compensation. Kanwal Vij was looking after the whole of family. Besides attending to her domestic affairs, she was doing the business of money lending and she was teaching her FAO No.1027 of 1989 3 minor daughters and sons. The children have not only lost their mother but teacher as well. The petitioner No.1 has lost his life partner. The petitioners are,m therefore, entitled to the compensation to the tune of Rs.3,00,000/- (three lacs) besides interest. As regards claim petition of Niha, the circumstances of accident are same. The compensation claimed by Niha is on account of burn injuries suffered by her in the above said accident and she was treated by the Department of Burns and Plastic Surgery at Rohtak from 31.5.1987 to 16.6.1987. She was then treated at Delhi in Delhi Plastic Surgery Clinic and a sum of Rs.60,000/- has been spent on her treatment. She was aged six years at the time of accident. She has claimed a sum of Rs.8,00,000/- for the expenses of treatment, for pain agony and the expenses on plastic surgery and losses of chance of marriage and also on account of loss of chance in her status and in future carrier. The version of the respondent No.1 in his written statement is that he does not know about the personal particulars of Smt. Kanwal Vij. The accident is admitted. The answering respondent was not driving the vehicle in a rash and negligent manner. Salil Kumar, driver of the car, was responsible for causing the accident. The particulars about the insurance company etc. are also admitted. The version of Brij Mohan, respondent No.2 in his separately filed written statement is that the accident had taken place between the car and the tanker. It is not known to the answering respondent as to whether the driver of the tanker had turned turtle and the occupants of the car had received FAO No.1027 of 1989 4 injuries. Death of Kanwal Vij is admitted but the amount claimed in respect of compensation is very excessive. The Insurance company respondent No.3 has contested the claim on usual grounds. It has taken the plea of limitation also in defence besides the plea of petition being bad for non-joinder of necessary parties. On the pleadings of the parties, the following issues were settled in a consolidated form on 20.2.1988 in the two cases when the claim petition of Jugal Kishore etc. and Niha were consolidated by Sh.R.S. Bhatia, Motor Accident Claims Tribunal, Rohtak:- 1. Whether the accident and the resultant death of Kanwal Vij and the resultant injuries to Niha was due to rash and negligent driving of the vehicle by respondent No.1 Mahender Singh, OP claimants. 2. To what amount of compensation are the claimants entitled and from whom? OP claimants. 3. If the Insurance company is found liable to pay the compensation, then to what extent does its liability extend? OP claimants. 4. Relief. The parties have led their respective evidence on the aforesaid issues. The learned Tribunal after appraisal of the same, awarded Rs.1,50,000/- to Niha andRs.38,400/- in the petition of Jugal Kishore etc. along with interest @ 12% per annum from the date of petition till actual realization. FAO No.1027 of 1989 5 Feeling dissatisfied with the above said Award, the appellants have preferred their appeals for enhancement of the compensation amount. I have heard learned counsel for the parties and have minutely gone through the records of the case with their help. Mr.Malhotra, learned counsel for both the appellants have vehemently challenged the finding on issue No.1. It is submitted that accident has taken place due to rash and negligent driving of tanker by respondent No.1. The finding of the Tribunal to the effect that the accident had taken place due to negligence of both the drivers of car and tanker is based upon conjectures. It is further argued that according to the report of the Mechanic, the right side of the tanker was damaged whereas the left side of the car was damaged. The said report is conclusive evidence which proved that driver of tanker struck against the car. The tanker turned-turtle after striking with the car also proved the fact that the same was being driven rashly and negligently at a very high speed. The car also caught fire due to variance of driver of tanker. The car was coming from the right side of the tanker and driver of the tanker was under obligation to give way to the car. The evidence on the file proved that accident has taken place due to rash and negligent driving of tanker by its driver. Mere fact that accident had taken place near a busy road does not lead to the conclusion that both the drivers are contributory negligent. Learned counsel for the appellants have further submitted that amount of compensation assessed in respect of death of Smt. FAO No.1027 of 1989 6 Kanwal Vij is on lower side. She was teaching the children besides doing the household affairs. The dependency of the claimants should have been assessed atleast Rs.1500/- per month. The multiplier at the age of deceased is also on lower side. Learned counsel for the appellant-Niha has submitted that amount of compensation assessed by the Tribunal in respect of injuries sustained by Niha is on lower side. Niha suffered burn injuries to the extent of 44½% on her face, legs, arms etc. The Tribunal itself has recorded a finding that due to injuries received by her, her face has been dis-figured and career has been ruined. The Tribunal has further held that marriage chances have become bleak. So, in these circumstances, the amount of compensation assessed is on lower side. It is further contended that the Tribunal has awarded Rs.35,000/- for future treatment, which is highly inadequate. The Doctor has stated that she has to suffer many operations in the life. So, the compensation amount awarded under the head of future expenses is also on lower side. The amount of Rs.1,00,000/- granted in respect of loss of amenities of life is also on lower side, keeping in view the nature of burn injuries. The amount of Rs.50,000/- in respect of marriage chances is also inadequate. The amount of Rs.50,000/- in respect of future career prospectus and earning etc. is also less. So, prayer has been made for enhancement of the compensation amount. In reply to the above noted submissions, learned counsel for the Insurance Company has submitted that the finding of the Tribunal on issue No.1 is correct. Left side of the car struck against the FAO No.1027 of 1989 7 right side of the tanker, which proves the fact that it was the driver of car, who struck the car against the tanker/truck. It is further contended that the liability to pay the amount is limited to the extent of Rs.1,50,000/- and to fortify his argument, learned counsel for the appellant has relied upon authority National Insurnace Co.Ltd. vs. Puja Roller Flour Mills (P) Ltd., and others 2006 ACJ 721. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. The first and foremost issue for determination in the present case is in respect of issue No.1. The Tribunal after appreciating the evidence on the file reached to the conclusion that the accident has taken place due to negligence of driver of car as well as tanker and both are negligent to the extent of 50%. The question arises whether that finding requires any interference ? The answer to that question is in negative. Men may tell a lie but the circumstances cannot. Claimant has examined PW-2 Bishamber Dayal Constable, who has given the mechanical report of Car No.HYR 6308 and tanker No.HYQ-2255. According to his report, the left side of mudguard of car was damaged. Battery was found broken. Transmission system was also found broken. All the four windows were found broken. Head light was also found broken. All the four wheels were also found broken. The roof was also found broken. FAO No.1027 of 1989 8 As per mechanical report of tanker No.HYQ-2255, only right side of the tanker was found broken. Foot board was also found broken. On the left side, there was a scratch but the same has been attributed due to the turned turtle of the vehicle. So, from the mechanical report, it can be safely inferred that car dashed against the fuel tank of the tanker. The condition of the car as well as tanker clearly shows that driver of both the vehicles were negligent. The Tribunal has rightly held that since the car was taken to a busy road and as such the driver of the car should be more vigilant. The fact that tanker turned turtle also showed that speed of the said tanker was high and the same was being driven rashly and negligently. So, in view of the above discussion, the oral evidence ceases its importance in view of the circumstantial evidence. So, in view of the above discussion, the finding given on issue No.1 stands affirmed. So, far as FAO No.1027 of 1989 is concerned that does not call for any interference regarding contributory negligence. Now reverting to the quantum of compensation payable to Niha-appellant is concerned, the Tribunal has assessed the compensation to the tune of Rs.3,00,000, the details of which is given as under :- 1. Medical Expenses Rs.65,000/- 2. Future Medical Expenses : Rs.35,000/- 3. Amount of compensation for pain, shock etc. Rs.1,00,000/- 4. Loss of marriage prospectus : Rs.50,000/- FAO No.1027 of 1989 9 5. Loss of future prosecutes Rs.50,000/- The amount has been slashed by 50% as the owner and driver of car, who were held contributory negligent to the accident was not arrayed as party. The accident has taken place in the year 1987 and the amount of compensation has to be assessed keeping in view the prevalent circumstances of the case. Niha has been granted compensation on all heads and there is no further scope for enhancement. The appeal stands dismissed. Now reverting to FAO No.1029 of 2009, the Tribunal has assessed the amount as Rs.76,800/-. The dependency of deceased Smt. Kanwal has been taken as Rs.400/- per month and yearly dependency has been calculated as Rs.4800/-. Deceased was aged about 38 years and the multiplier applied by the Tribunal was 16 and in this manner amount calculated was Rs.76,800/-. However, the amount was deducted to the extent of 50% as owner and driver of car have not been arrayed as party. So far as the dependency of Rs.400/- taken by the Tribunal is concerned i.e. on lower side. The dependency of a house wife in the year 1987 cannot be taken less than Rs.600/-per month. So, the yearly dependency comes to Rs.7200/-. So, by applying the multiplier of 16 as assessed by the Tribunal the amount calculated is Rs.1,15,200/-. Another sum of Rs.9500/- stands allowed after taking into account, funeral expenses, loss of estate and consortium. So, in this manner the claimants are held entitled to Rs.1,24,700/-. So, a sum of Rs.47,900/- is assessed as enhanced amount. By deducting ½ amount on account of FAO No.1027 of 1989 10 contributory negligence, the claimants are held entitled to claim Rs.23,250/- more along with interest @ 7% per annum from the date of appeal till realization in addition to the amount awarded by the Tribunal. Consequently, the appeal preferred by Jugal Kishore stands accepted to that extent. The liability to pay the enhanced amount shall remain the same as ordered by the Tribunal. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE April 19th , 2010 sv