FAO No.3160 of 2008 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3160 of 2008 Date of Decision.27.10.2010 Suresh Kumar aged about 28 years son of Shri Sai Dass resident of Ward No.3, Dalal Park, Hansi (mentally disturbed, through his wife and next friend Smt. Sunia wife of Suresh Kumar, resident of ward No.3, Dalal Park, Hansi, District Hisar and others ......Appellants Versus Maha Singh son of Sh. Jot Ram and others ......Respondents Present: Mr. Anurag Jain, Advocate for for the appellants. Mr. Ajit Sihag, Advocate for respondent Nos.1 and 2. Mr. Navin Kapoor, Advocate for respondent No.3. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. The claimants, whose petition was dismissed on the ground that brother and brother's children of the deceased are not entitled to maintain the claim petition, are in appeal. 2. The deceased was said to have obtained a lift in a goods carriage owned by the 2nd respondent and driven by the 1st respondent and the vehicle capsized resulting in his fatal injuries. The claimants made improvement in their versions during the course of the trial when they said that he had got into the vehicle with biris which he was vending and therefore, he must be taken to be owner of the FAO No.3160 of 2008 -2- goods travelling along with the goods. The Tribunal accepted the contention and found that the insurance company would be fully liable to indemnify the insured but still on the question of entitlement of the claimants, it found that the brother of the deceased was not himself examined and the examination of the wife stating that her husband was mentally disturbed and that he was wholly dependent on the deceased were not acceptable and hence dismissed the petition. 3. I will take the negligence of the driver of the offending vehicle as established and his own evidence that the accident took place by the mechanical defect cannot explain away the issue of negligence of the owner. A vehicle capsizing on the road even when it was running must have been the result of poor upkeep of the vehicle and owner, therefore, has to be held responsible for the same. 4. As regards the further issue that the insurance company would be liable as the claim arising out of the death of an owner of the goods travelling with the goods, the insurance company itself is not in appeal since the ultimate dispensation was one of the dismissal. Therefore, I will proceed to examine whether such a finding was tenable. 5. The claimants would disclose the occupation of the deceased as biri hawker and the further details set out in column 24 in the petition was that the deceased after doing his work of selling the biri in the village was standing on the bus stand of village Pur for waiting for the bus. In the meanwhile, the respondent No.1, who had been known to the deceased came via the bus stand of village Pur driving the insured's vehicle and after seeing the deceased, he FAO No.3160 of 2008 -3- stopped the vehicle and offered him the lift. That he happened to have also biri in his hands was taken by the Tribunal to be justification enough to be answering a situation that even a death or bodily injury to such person would be entitled to a compulsory insurance company as contemplated by Section 147 of the Motor Vehicles Act. I cannot accept such a reasoning. A goods carriage is meant to carry goods. It is the transport of goods which shall be the primary concern and the fact that an owner travels along with his goods will provide the immediate next justification for a person to obtain the benefit of an insurance cover. In this case, the deceased was taking a lift from the driver of the vehicle. That he happened to have incidentally some biris with him cannot be taken as the vehicle being used for transport of goods and that the owner incidentally came along with goods. In the manner in which the evidence was led, it was a clear improvement of what was originally stated in the petition. I cannot accept that this would provide any entitlement to the claimants to enforce the award against the insurer. I will accordingly vacate that finding. 6. As regards the entitlement itself, the Tribunal found that the claimant is not entitled to make a claim by virtue of the fact that the brother or brother's children cannot make a claim for the death of the deceased. It was elicited in evidence that even apart from the first claimant, there was yet another brother by name Manoj and he had not been also impleaded as a party. The term legal representatives used in Sections 165, 166 and 168 of the Motor Vehicles Act are wide enough to include legal heirs as well. The evidence was that the deceased was a bachelor and that by virtue of FAO No.3160 of 2008 -4- the fact that the 1st claimant was mentally affected, the whole family was only dependent on the deceased. The 1st claimant was evidently the legal heir in the absence of any other class I relatives and even in capacity as a legal heir, the brother was entitled to make a claim. The wife had given evidence to the effect that her husband had been mentally affected and she also produced medical certificate issued by the Shanti Mission Hospital that he had "P. Schizophrenia with post psychiatric depression" since January, 2005. The certificate revealed that this was a chronic illness and he had been under treatment on a regular basis. Several medical prescriptions had also been filed as P1 to P12 to prove that the 1st claimant had been afflicted with mental illness. All this was to prove that he was dependent on his brother. I would accept this contention to afford a basis to the first claimant to make a claim. The children of the first claimant could not obtain the same benefit for what we are examining is whether a legal representative is a person who is lawfully entitled to be maintained. The children of the first claimant who are the children of the brother of the deceased are not legally entitled to maintenance out of the estate of the deceased and therefore, I will not make any provision for maintenance of the children. This Court has also held that a brother, who is a dependent on the deceased would be entitled to maintain a claim for compensation in FAO Nos.2024-26 of 2008 decided on 23.08.2010 in United India Insurance Company Ltd. Vs. Om Parkash and others. I have examined all the case law arising in this type of situation particularly with reference to the decision of the Hon'ble Supreme Court in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbai AIR 1987 SC FAO No.3160 of 2008 -5- 1690 and decisions of this Court in Subhash Chander and others versus State of Punjab and Haryana and others AIR 1974 Punjab and Haryana 54 and in Dharam Pal Chandna versus Ram Singh and others 1985 II ACC 366. 7. There had been no specific evidence relating to the income of the deceased but the Tribunal assessed the compensation payable at Rs.2,90,000/- as per Schedule II on the basis that he would have earned Rs.36,000/- per year. I would adopt the same assessment as of the deceased at Rs.36,000/- per year, provide for 50% contribution to the brother and take the extent of dependence of the brother to be Rs.18,000/- I will adopt a multiplier of 13 and the loss of dependence would come to Rs.2,34,000/-. I will add the conventional heads of claim to the loss of estate and the funeral expenses at another Rs.6000/- and find the total amount payable to the 1st claimant as Rs.2,40,000/-. 8. The appeal is, therefore, allowed for the compensation of Rs.2,40,000/- to the 1st appellant only. The claim of the other claimants will be dismissed. The award will be satisfied only against the 2nd respondent, which is owner of the vehicle which was involved in the accident and the insurer shall stand completely exonerated on the basis that the deceased was a gratuitous passenger and he was not entitled to cover in any risk arising out of his death. (K. KANNAN) JUDGE October 27, 2010 Pankaj*