FAO No.31 of 1995 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.31 of 1995 Date of Decision. 29.09.2010 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Smt. Mamo Devi w/o Sh. Dal Singh and others ......Respondents 2. FAO No.32 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Prem Singh son of Balbir Singh and others ......Respondents 3. FAO No.33 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Om Parkash son of Ram Lok and others ......Respondents 4. FAO No.34 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Ganpat Rai Sarpal son of Shri Ram Rakha Mal and others ......Respondents 5. FAO No.35 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Smt. Renu Bala widow of Shri Raj Kumar Wadhwa and others ......Respondents FAO No.31 of 1995 -2- 6. FAO No.36 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Smt. Pushpa Devi wife of Kharati Lal and others ......Respondents 7. FAO No.77 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Smt. Asha Rani wife of Late Shri Surinder Kumar and others ......Respondents 8. FAO No.78 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Miss Rekha Rani d/o Shri Baldev Raj, minor and others 9. FAO No.79 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Kaushalya Devi wife of Ram Kumar and others ......Respondents 10. X Obj. No.66-CII of 2010 in/and FAO No.80 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Geeta Sarpal widow of Shri Vinod Kumar Sarpal and others . .....Respondents FAO No.31 of 1995 -3- 11. FAO No.81 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Mahindera widow of Gurdev Singh and others ......Respondents 12. FAO No.82 of 1995 State of Haryana through the Secretary and Transport Commissioner Haryana Roadways, Chandigarh (owner of the bus No.HNC-1419) and another .....Appellants Versus Smt. Ninni Bai widow of Shri Braham Singh and others ......Respondents 13. FAO No.1812 of 1995 treated as X Obj No.52-CII of 1996 in/with FAO No.77 of 1995 Shri Jagmohan Lal resident of H.No.3054, Sector 15-D, Chandigarh ......Appellant Versus State of Haryana and others ......Respondents Present: Mr. Kunal Garg, AAG, Haryana for the appellants. Mr. L. M. Suri, Senior Advocate with Mr. Radhika Suri, Advocate for the New India Assurance Company Ltd. Mr. P.S. Rana, Advocate Mr. Varinder Singh, Advocate Mr. Sat Pal Singh, Advocate for cross objectors in FAO No.77 of 1995. Mr. R.S. Chauhan, Advocate for Oriental Insurance Company Limited. 14. FAO No.2488 of 1994 Miss Rekha Rani d/o Shri Baldev Raj, minor and others ......Appellants Versus FAO No.31 of 1995 -4- Sadhu Ram son of Shri Shish Ram resident of Karotha and others ......Respondents 15. FAO No.2489 of 1994 Smt. Pushpa Devi wife of Kharati Lal and others ......Appellants Versus Sadhu Ram son of Shri Shish Ram resident of Karotha and others ......Respondents 16. FAO No.914 of 1995 Inder Pal son of Shri Sant Ram resident of 386, Sector 15-A, Faridabad ......Appellant Versus Shri Om Parkash son of Rameshwar Dass and others ......Respondents Present: Mr. Ashit Malik, Advocate for the appellants. Mr. R.S. Chauhan, Advocate for Oriental Insurance Company Limited. Mr. Kunal Garg, AAG, Haryana. 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.(ORAL) 1. The New India Assurance Company and the owner and driver of the bus, who are aggrieved from the awards have preferred the appeals except FAO Nos.2488, 2489 and 914 of 1994 which are the appeals filed by the claimants. When the appeals came up for hearing, learned Senior Counsel appearing for the appellants seeks for transposition of the insurance company as a respondent and seeks for permission for prosecuting the appeals as instituted by the owner and the driver of the bus. I accord permission in terms of the FAO No.31 of 1995 -5- judgment of the Hon'ble Supreme Court in Chinnama George and others Vs. N.K. Raju and another 2000 (4) SCC 130 and direct the registry to carry out the amenment in the memo of parties by transposing the New India Assurance Company Limited as respondent in each one of the appeals. The appeals are being now taken as appeals preferred by the owner and driver of the bus only in so far as they are challenging the liability cast on them. 2. This batch of 15 appeals with cross objections in FAO Nos.77 and 80 of 1995 arise out of the same accident. All the claimants are either representatives of deceased persons or injured persons who were travelling in the bus, which had been insured with the New India Assurance Company Limited. The claimants sought an adjudication that arose by a collision of the insured's vehicle with a truck, which had been insured with Oriental Insurance Company. The driver, owner and the insurer of the truck had also been made as parties. All the claimants sought adjudication on a pleading that the collision occurred by the negligent driving of the driver of the truck. In the course of trial, however, the parties were not as affirmative but were prepared to contend that both vehicles were responsible for the accident. The driver of both the bus and the truck had been examined. The site plan as well as the photographs were also introduced as evidence. I will not detain myself with reference to each one of the witnesses, who were the claimants and who were also eye-witnesses to the accident. The evidence of the driver of the bus and the truck meant trading of charges against each other. The Tribunal on appreciation of evidence found the bus FAO No.31 of 1995 -6- driver to be wholly responsible for the accident. 3. One significant aspect, which has come through the evidence of the respective drivers of the bus and truck that the point of impact of the vehicles is on the left side of the respective vehicles meaning thereby that the drivers have saved themselves in the collision and the driver of the bus, who was proceeding from the north had swerved the vehicle towards the east while the truck driver, who was proceeding from North to South had swerved the vehicle towards the west in a bit to save each other and to avoid collision. The site plan reveals the place of the accident at the middle of the road but at the time when the sketch was drawn the bus has been shown to be on the right side extreme of the road while the truck remained stationary at the middle of the road. The Tribunal while assessing the evidence took note of the fact that the bus was in the right side extreme and therefore, believed that the bus must have come of the way to the right side of the road to cause the accident. The site plan is invariably drawn after the accident and where the vehicles are parked. It is a case where both the drivers have survived and they must have therefore driven the vehicles to some distance to park them. The fact that the bus remained parked right side ought not to be understood as meaning that the accident itself took place on the right side extreme of the road. On the other hand, the site plan reveals that the point of impact was at the middle of the road. It was clearly a case of the drivers of both the vehicles being negligent and it is not possible to place the entire burden on the driver of the bus as responsible for FAO No.31 of 1995 -7- the accident. It is a case of composite negligence where the drivers of the respective vehicles must take 50% responsibility and therefore, I modify the award finding of the Tribunal in placing the burden wholly on the driver of the bus as responsible for the accident and apportioned the liability between ther drivers as 50:50. Consequently the respective owners and the insurers will take the responsibility for satisfying the claims in the above manner. 4. The appeals in FAO Nos.31 to 35 and 78 to 82 of 1995 are all appeals by the owner and driver of the bus. The quantum of claims in the respective cases are not in challenge and I will retain the quantum as assessed by the Tribunal but would direct the respective insurance companies namely the New India Assurance Company and the Oriental Insurance Company Limited to share the liability as 50:50. 5. The case would survive for consideration as regards the claim for enhancement, which have come in FAO No.36 of 1995 and where the claimants have preferred cross appeal in FAO No.2489 of 1994 and in FAO No.78 of 1995, the claimants have preferred an appeal in FAO No.2488 of 1994. The claimants in FAO No.1812 of 1994 are the respondents in FAO No.77 of 1995 and this Court has already passed an order directing that FAO No.1812 of 1994 must be treated as cross objections in FAO No.77 of 1995. The claimants also have filed the cross objections in FAO No.80 of 1995. The claimant whose case was dismissed before the Tribunal has preferred an appeal in FAO No.914 of 1995 against the dismissal of the claim petition. FAO No.31 of 1995 -8- 6. As far as the claimant in FAO No.914 of 1995, the Tribunal has dismissed the claim petition on the ground that the driver of the bus and the owner and insurer had not been impleaded and having regard to the fact that the Tribunal found the owner to be responsible for the accident held that the non-impleadment would vitiate the claim petition dismiss the action. The decision was clearly wrong in view of the decision that I have taken that both the vehicles were responsible for the accident. I would sustain the claim and proceed to examine the compensation claim in the case. The claimant was an Assistant in a Nationalized Bank and he had claimed that in the accident he had suffered a fracture of the tibia. The doctor, who was treating him gave evidence as PW-13 to say that he had put him in a plaster of paris to reduce the fracture and he was regularly under his treatment for three months and he was still taking treatment for another three months as outpatient. The doctor has given evidence that the claimant had remained immobilized for three months and that he had suggested him special diet, which would have caused him Rs.30/- per day during the period of his treatment. The doctor also gave evidence to the effect that he had charged him Rs.1,000/- for treatment and the claimant himself had given evidence that he had purchased medicines of Rs.1500/-. As far as the medical expenses are concerned, the suggestion was that he would have been reimbursed but the claimant refused the suggestion by saying that the accident took place during his private visit and therefore, no reimbursement was possible. He has also produced taxi bills to the tune of Rs.6375/- towards his FAO No.31 of 1995 -9- transport expenses. He had also given evidence that he had employed a nurse for seven months and he was paying Rs.700/- per month. He had given a disability certificate to show that his disability was 10%. Although the claimant had contended that he had spent about Rs.50,000/-, I would apportion it to the bills which he had produced and the evidence that he had led through the doctor that he had spent Rs.1500/- towards medicines and Rs.1000/- towards payment to doctor, which would be Rs.2500/-. I will add another Rs.2500/- for the continuance treatment and the period as an inpatient and take medical expenses to be Rs.5,000/-. For payment of nurse for seven months @Rs.700/- per month, I will accord to him the same way as he required and take that to be Rs.5000/- for attendant charges. For special diet, he had stated that he spent Rs.30/- per day, I will accord to him the same @Rs.1000/- per month that will be Rs.3,000/-. He has claimed that he has spent about Rs.6375/- towards transport expenses. I will round off the amount to Rs.6500/- towards transport expenses. For a fracture and for his complete immobilization for a period of three months, I would grant to him Rs.15,000/- as agony towards the pain and suffering. He has claimed that he has suffered 10% disability, which ought to have been only temporary, for he had only a fracture and he was in a plaster cast and the doctor's evidence was to the effect that he would have had difficulties in walking for another period of six months after the treatment period also. The disability component, therefore, must be taken as loss of amenities for life for nearly one year and I would accord to him Rs.5000/- for all. In all FAO No.31 of 1995 -10- the total amount that will become payable would be Rs.39,500/-. The claimant also contended that he had loss of income for three months when he was immobilized. He was a bank employee and he must have been remunerated during the period of leave but there is no contrary evidence tendered by him that he was in loss of pay for three months. I will provide to him an additional amount of Rs.10,500/- and round off the claim as Rs.50,000/-. This amount of compensation will also attract interest @6% from the date of the petition till the date of payment. In this case although only the insurance company for the truck namely the Oriental Insurance Company Limited is a party, the whole award is passed against Oriental Insurance Comapny and Oriental Insurance Company in turn is entitled to recover 50% of the same against the New India Assurance Company or in the alternative the New India Assurance Company itself shall take notice of the award and pay 50% of the amount without having to wait for a claim routed through Oriental Insurance Company Limited. 7. As regards the claim in FAO No.2488 of 1994, the claim is for the death of a doctor, who was RMP. He was aged 36-38 years and the claimants wre the widow, mother and three minor children. His income had been taken as Rs.1880/- by the Tribunal. I will retain the same and provide for a deduction of 1/5th towards his personal expenses and take the contribution to the family at Rs.1440/-. The yearly dependence will be taken as Rs.17280/- and if a multiplier of 15 were to be adopted, the compensation payable would be Rs.2,59,200/-. I add the conventional heads of claim at FAO No.31 of 1995 -11- Rs.5,000/- for loss of consortium for the wife and Rs.5,000/- for each of the minor children, that shall add to another Rs.20,000/- and I will add another Rs.5,000/- towards loss to estate and funeral expenses. The amount that will become payable would be Rs.2,84,200/- which I will round off to Rs.2,84,500/-. The Tribunal has awarded Rs.1,73,000/-. The amount in excess of what has has already been awarded by the Tribunal shall bear interest @6% from the date of the petition till the date of payment. This liability will also be borne equally between both the insurance companies. 8. In FAO No.80 of 1995, cross objections have been filed seeking for enhancement after considerable delay only in the year 2010. All these cases have been pending for disposal for no fault of the litigants and I will not, therefore, hold the delay as material. The delay is consequently condoned. The claim relates to the death of a retired Captain from Army, who was aged 47 years and whose income had been taken at Rs.3,000/- per month. The claimants were son, daughter and parents and the Tribunal disposed of the case taking the monthly dependent to be Rs.2,000/- and adopted a multiplier of 10. I would take the monthly dependence at Rs.2,000/- as determined by the Tribunal and adopt a multiplier of 13 as suggested by the decision of the Hon'ble Supreme Court in Sarla Verma Vs. DTC 2009(6) SCC 121. The compensation payable would be Rs.3,12,000/-. I would add towards the convention heads of claim another Rs.13,000/- for loss of consortium, funeral expenses and loss to estate and round the claim to be Rs.3,25,000/-. The amount ordered in excess to what has already been awarded by the FAO No.31 of 1995 -12- Tribunal will attract interest @6% from the date of the petition till the date of the payment. The amount shall again be borne between the New India Assurance Company Limited and Oriential Insurance company in equal proportions. 9. FAO No.1812 of 1995 has been treated as cross-objection in FAO No.77 of 1995. The case relates to a claim by the widow, minor children and father. The deceased Surinder Kumar was aged 30 years and the claimants had filed proof of his income as Rs.1800/-. The Tribunal took the extent of dependence at Rs.1200/-, adopted a multiplier of 14 and took the compensation payable at Rs.2, 02,000/-. Out of this amount, Rs.10,000/- each was directed to be paid to the father and mother and the balance was directed to be paid to the widow and children. 10. The only modification that this case would require is to provide for a 50% increase in salary and take the same as Rs.2700/-. I would provide for a 1/4th deduction and the annual contribution to the family would be Rs.24,300/-. If a multiplier of 17 is to be adopted, the amount of compensation would come to Rs.4,13,100/-. I would also provide for an additional amount of Rs.5,000/- as loss of consortium to wife and a like amount of Rs.5,000/- for each one of the minor children. I will also provide for funeral expenses and loss to estate at Rs.5,000/-. In all the total amount that will become payable would be Rs.4,33,100/-, which I will round off to Rs.4,33,000/-. The amount in excess of what has already been awarded shall bear interest @6% from the date of the petition till the date of payment. Out of the increased amount, father shall be FAO No.31 of 1995 -13- paid Rs.15,000/- and rest of the amount will be paid equally to the widow and the two children. 11. FAO No.36 of 1995 addresses the claim for injury to a person Pushpa, who was filed her own cross appeal for enhancement in FAO No.2489 of 1994. The Tribunal has dealt with the claim elaborately referring to the fact that she had a fracture of her left arm and was confined in the hospital for 15 or 16 days. She has stated that she has taken treatment with Dr. P.K. Bhatia, who has also been examined in this case as PW6. The doctor had certified the disability to be 17%. The Tribunal has made reference about a personal inspection of the hand of the injured person and observed that the disability was about 10%. The Tribunal has assessed Rs.10,000/- for pain and suffering, Rs.7,000/- as cost of treatment and Rs.10,000/- for permanent disability qua the whole body. The Tribunal has also provided for Rs.3,000/- for special diet and loss of income was assessed at Rs.1,000/-. In all, an amount of Rs.31,000/- has been awarded. I find that all the relevant heads of claim have been properly addressed and there would be no requirement for making any modification in the award except in the manner of apportionment between two insurance companies as referred to above. The cross appeal by the appellant in FAO No.2489 of 1994 is, therefore, dismissed. 12. Learned Senior Counsel appearing for the New India Assurance Company states that during the pendency of these appeals, the insurance company has satisfied most of the claimants. In case where there have been a complete satisfaction accorded for FAO No.31 of 1995 -14- the claimants, the appellant-insurance compay will recover 50% of the amount paid from the Oriental Insurance Company which is found as an insurer for the truck to be liable to bear 50% responsibility. In respect of claims where the enhancement is now presently ordered, the whole amount shall be recovered from the Oriental Insurance Company provided, however, it does not exceed 50% of the overall liability, which I have cast on the Oriental Insurance Comapny. 13. All the appeals and cross appeals are disposed of as above. (K.KANNAN) JUDGE September 29, 2010 Pankaj*