FAO No.417 of 1992 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.417 of 1992 DATE OF DECISION: January 21, 2011 GURDEEP KAUR & OTHERS ...APPELLANTS VERSUS RAMINDER SINGH & OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? No 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. A.P. KAUSHAL, ADVOCATE FOR THE APPELLANTS. MR. PARDEEP GOYAL, ADVOCATE FOR RESPONDENT NO.2. NONE FOR THE REMAINING RESPONDENTS. K.KANNAN, J.(ORAL) 1. The appeal is against the award dismissing the claim of compensation for death of Kehar Singh who was a Mason and was said to be aged 43 years. The claimants were widow, daughter and mother. The accident was said to have taken at the time when the deceased was standing near the grain market when the motorcycle owned by respondent No.1 coming from the Kapurthala side dashed against him, as a result of which he fell down and received injuries. An FIR was lodged on an information given by one Hardial Singh and it had referred to the involvement of the motorcycle with particular reference to the registration number. The accident was spoken to by two witnesses. They claimed that they were on the spot and they had seen the same. Respondent No.1 had filed a written statement denying that his vehicle was involved. He stated that another FAO No.417 of 1992 -2- truck which was coming at that time had dashed against him and caused his death. The statement denying the involvement of the vehicle by respondent No.1 was rejected by the Tribunal on a reasoning that respondent No.1 did not examine himself and hastened to draw an adverse inference. At the same time, the Tribunal found that the claimant had not established the negligence of respondent No.1. It is a rather strange reasoning and cannot be accepted. If the involvement of the vehicle could be taken as established by drawing an adverse inference against respondent No.1 for his non- appearance, such adverse inference must have been taken to its logical end. There was no justification for a Court to reject the evidence of two witnesses who spoke not merely about the involvement of the vehicle, but also about the negligent driving of the driver of the motorcycle. The cause for rejection of their evidence was that their presence was not noted in the FIR and the author of the FIR was himself not examined. I take the said facts to be duly irrelevant when the case is to be considered in the light of evidence which is tendered and if there were two witnesses who spoke about the rash driving of the driver, consistent with the finding that first respondent's vehicle was involved in the accident, it ought to have also held that negligence against respondent No.1 was established. 2. As regards the quantum, the contention of the learned counsel is that as Mason the deceased was earning about `90/- per day, Mason could not have been employed on all days, therefore, I would take the average income to be `2250/- @ `75/- per day. I would make a deduction of 1/3rd for personal expenses and take the contribution to the family as `1500/- and take again a multiplier of 14 suitable to the age and find the loss of dependency at `2,52,000/-. I would `5000/- towards loss of consortium to FAO No.417 of 1992 -3- the wife and `2500/- for loss of love and affection for the child. I would make further addition of `2500/- for loss to estate and `2000/- towards funeral expenses and held the compensation payable as `2,64,000/- 3. The Tribunal had already awarded `25,000/- and the amount in excess over what has already been awarded by the Tribunal shall attract interest @ 6% from the date of petition till the date of payment. 4. The amount determined shall be distributed amongst the claimants who are the wife, child and the mother in the ratio of 2:2:1. The liability shall be on the insurance company as the vehicle has been found to be involved in the accident. 5. The appeal is allowed to the above extent. January 21, 2011 (K.KANNAN) Gulati JUDGE