FAO No. 1294 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 1294 of 2009 Date of decision January 20, 2011 Gurjit Singh and another ....... Appellant Versus Ajinder Kaur and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. L. M. Suri, Senior Advocate with Mr. Navkiran Singh, Advocate Ms. Shallia Saini, Advocate for the appellants. Mr. Ashok Bector , Advocate for the respondents. **** 1. Whether reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgment should be reported in the digest?Yes K. Kannan, J (oral). 1. The appeal is by the owner challenging the award passed by the Tribunal finding the appellant to be responsible for the accident against the death of a police man whose representatives were the claimants. The contention in the claim petition was that the deceased was travelling on a motor cycle and was proceeding towards Village Niana and at the place of accident he was going towards west and turning towards south. At the same time, the appellant was alleged to be going from east towards west and did not exercise caution while driving his vehicle but was driving rashly and negligently and dashed against the Motor Cycle in which the deceased was going. The deceased hit against the iron railing and FAO No. 1294 of 2009 2 suffered fatal injuries. 2. The accident was said to have taken place around 7.30 P.M. on 26.1.2007. The accident was denied by the appellant and it was his contention that the whole case was a fabrication and would point out to the fact that even the complaint had been lodged only two days later. The contention is that if the accident had really taken place involving the police constable, it must have been immediately brought on record through a complaint and no explanation had been given as to why the complaint was lodged two days later. Again , it is pointed out that in the evidence of PW-2, it has been elicited that the alleged eye witness was a close relative of the deceased being the brother of the first claimant herself, the widow of the deceased. Learned Senior counsel appearing on behalf of the appellant would show other improbabilities in the version that a person who was supposed to be coming in his own vehicle at a distance of 30 yards from the place of accident could not have noticed the accident. It was quite dark at 7.30 P.M. and the accident having taken place during winter, the visibility ought to have been poor. These are the facts that must be elicited in evidence than being a matter of inference, for it was just as well possible that the road had been lit up at the place of junction going to a village road from the main road and it was also possible that there was no fog. I cannot make any such assumption. I have tested only on the basis of evidence that was given. If there had been a contra evidence placed by the appellant himself through the driver who was driving the motor cycle at that time I would have reasons to suspect the version of the person who had lodged the FIR and would have taken with such a modification as the situation could have warranted. In this case the driver of the offending vehicle had not been examined and no explanation is forthcoming for his non-examination either at the trial or in the grounds of appeal. It appears that there had been a criminal case against the appellant and he was also FAO No. 1294 of 2009 3 acquitted. I would not take that to be relevant any more than that there was a criminal case and he was acquitted. The case before the Tribunal has to be decided on merits on the basis of evidence. 3. Even, if I have no difficulty in finding that the appellant's vehicle was involved in the accident, I will not go as far as to state that the appellant alone was responsible for the accident. The site of accident as brought through the site plan drawing by the police which shows that the accident was on the left side of the road and admittedly the deceased was travelling on Balachaur to Ropar G.T. Road and he was turning to the right. I will not accept again the evidence of the eye witness that he could see the deceased turning by putting out his hand to signal that he was turning right. That may not have been possible at a distance of 30 yards even on a clear night and even if it was not foggy. The deceased was turning into a side road from the main road and the appellant travelling along the main road had a right of way. Even a mere collision of two motor vehicles may not have resulted in fatal injuries but for the fact that the deceased must have been thrown off the vehicle and landed on the iron angle by the velocity of the impact. He must have suffered grievous injuries. Again, by the fact that the accident had taken place at a road junction on the left side of the road for a person travelling from east to west, the whole aspect of negligence cannot therefore be placed only on the appellant's driver. I would take that the deceased was guilty of contributory negligence, I would make the modification relating to the finding on such basis and take the responsibility for the accident between the driver of the appellant's vehicle and the deceased in the ratio of 60:40. 4. The deceased was a constable who was said to be drawing salary of `14,836/-. There is no cross appeal for assessment of compensation but I would not see that to be material, for, all that the claimants should have been interested was to support a finding of FAO No. 1294 of 2009 4 negligence in the manner assessed by the Tribunal and for retaining the award of compensation that was already made. In the light of my finding that there had been contributory negligence, I am prepared to examine reasonableness of the quantum even without cross appeal seeking for reassessment on that basis. He was a constable earning around `15,000/- and being in service in government, he had prospects of increase in salary. I would provide for prospect of 50% increase and take the average salary at `22500/- and I will deduct 10% of the same as going towards income tax and take the average salary to be `20250/-. The claimants were widow and two minor children, I will provide 1/3rd deduction for personal expenses and taking the contribution to the family at 13500/-, I would adopt a multiplier of 16 to find the loss of dependency at `25,92,000/-. I will make an addition of `5000/- towards loss of consortium to the wife and likewise a sum of `5000/- for loss of love and affection to each one of the minor child. The claimant had produced documents to the effect that `1,24,000/- was spent and the Tribunal had also accepted the same. Learned counsel appearing for the appellant would state that he was a government employee and that the entire amount must have been reimbursed. I cannot take this to be a matter of presumption especially when the claimant had given evidence in Court that she has spent `1,23,834/- and the was no suggestion to her that she had been re-imbursed. The original bills had been produced in Court and if she had claimed reimbursement, the same would not have been possible. Learned Senior counsel for the appellant points out that she has spent only `1,00,000/- . I do not accept this contention as well. If there were documents of `1,23,834/-, I would only take her statement in the petition as an approximation and not correctly given. I will therefore not allow that objection to prevail. 5. The total amount of compensation will have to suffer abatement of 40% and take the compensation payable at FAO No. 1294 of 2009 5 `16,38,600/-. The amount of compensation already determined shall therefore sand scaled down. The accident has taken place in the year 2007 and I have provided for multiplier of 16. I will, therefore, provide for withdrawal for major claimants only to the extent of 25% and the remaining 75% of the amount shall be retained in a deposit and for a period of 10 years and split into 10 equal shares, the first share for a period of one year and second for a period of two years and so on up to 10th year. As regards minor claimants, the entire amount shall be kept in a deposit till the age of minority and 50% of the amount shall be released to the children on attaining majority. 50% of the amount will be kept for a period to coincide with the period of maturity of the deposit for the major claimants and shall be split up in the same manner as provided above and the amounts paid on the respective dates of maturity for each one of the deposits. The distribution of the claim of compensation shall be in the same manner and the proportion amongst the claimants namely widow, children and parents as determined by the Tribunal. The amount determined as payable for the parents will also stand scale down proportionately to the amount which is now determined. As far as the parents' share is concerned, the entire amount shall be paid without any retention for deposit. The interest as already awarded shall remain same. 6. The appeal is disposed of as above. (K. KANNAN) JUDGE January 20, 2011 archana