FAO No.1599 of 1992 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1599 of 1992 (O&M) Date of Decision: 31.05.2011 Davinder Kaur and others ... Appellants Versus Manjit Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present: Ms. Vibha, Advocate for Mr. SS Narula, Advocate, for the appellants. None for respondents No.1, 2, 4, 5 & 6. Mr. Raj Kumar Bishmboo, Advocate, for respondent No.3. ***** 1. Whether reporters of local papers may be allowed to see the judgment? NO 2. To be referred to the reporters or not? NO 3. Whether the judgment should be reported in the digest? NO K. KANNAN, J. (Oral) 1. The appeal is against the dismissal of the petition for compensation filed against the owner, driver and the Insurer of the tempo for a collision that had taken place between a maruti car and the tempo. The deceased was a passenger in maruti car. The accident had taken place on 10.10.1990 and the complaint had been given on 27.10.1990. Before the Tribunal, the evidence was given by PW-1, who was said to be a scooterist, to the fact that he saw the maruti car overtaking him and was alleged to be the eyewitness to the collision with the tempo which was already overladen with goods. According to him, the collision had taken place only by the negligence driving of the driver of tempo. 2. The driver of the tempo who was arrayed as first respondent, gave FAO No.1599 of 1992 (O&M) -2- evidence to the fact that tempo had been stationary at the relevant time when one of the tyres had burst and the Cleaner had gone away to fetch a person to effect repairs. The driver himself was said to be standing by the side of the tempo when maruti car struck at a high speed and, therefore, turned turtle. 3. While sifting evidence of PW-1 and the evidence of the driver, the Tribunal reasoned that the presence of PW-1 at the spot itself suspect and the fact that no complaint immediately came to be registered was relevant to hold that he could not have been present at the spot. The Tribunal further observed that on the complaint lodged with the police, the police had launched an investigation and also filed a report that showed PW-1 himself had not given any statement and if PW-1 was present at the spot, his evidence must also available with the police. 4. Learned counsel appearing for the petitioners had argued that the driver of the tempo was also guilty of negligence in allowing the vehicle to be parked in the middle of the road in a dangerous position, which was itself a contributing factor for the accident. Rejecting the plea that the vehicle was dangerously parked in the manner contemplated under Section 122 of the Motor Vehicles Act, the Tribunal held that this Section would be applicable only in a case where a deliberate parking was made in the middle of the road and would not apply in the case where one of the tyres had burst and he could not keep the vehicle away from the place. In my view, the assessment of the applicability of Section 122 was wrongly made. While bursting of tyres at all times might not be the result of any negligence of the driver, if a situation warranted the vehicle to be stationary at the middle of the road, then, the driver of such vehicle must take appropriate caution to fend away any vehicle coming proximate to the stationary vehicle by placing boulders or sufficient FAO No.1599 of 1992 (O&M) -3- warning lights. Although it was stated that parking lights were on the fact that the vehicle had been stationed in the middle of the road had surely contributed to the accident. Some responsibility must be taken by the driver of the stationary vehicle. I will place a higher percentage of want of case on judgment of the driver of the maruti car. The owner of the maruti car that had been arrayed as respondent No.5 and the driver of the maruti car that had also been arrayed as respondent No.4. I apportion the liability between the owner, driver of the maruti car on the one hand and owner, driver and insurer of the tempo on the other hand as 60: 40. 5. On the issue of quantum, the Tribunal had before it the evidence of widow who said that her husband was running an electrical shop and was earning `4,500/- per month. She stated that after his death his son was running it but being young and not trained in business, he was unable to earn sufficient income to make both ends meet. I will take the income at `4,000/- p.m., make a deduction of 1/4th for personal expenses and take the contribution to the family at `3,000/-. The age of the deceased was stated to be 45 and I will take the same 45 plus and apply a multiplier of 13 to hold the loss of dependency at `4,68,000/-. I will take `5,000/- towards loss of consortium and `7,500/- towards loss of love and affection for the unmarried daughters and the minor son and make a further provision of `5,000/- towards funeral expenses and loss to estate. Overall amount payable under accident will be `4,85,000/- and it will attract interest @ 7.5% from the date of petition till the date of payment. The liability shall be between owner, driver of the maruti car and the owner, driver and insurer of the tempo in the ratio of 60: 40, which would mean that the respondents No.4 and 5 will be responsible for FAO No.1599 of 1992 (O&M) -4- `2,91,300/- with interest and the balance of the amount assessed will be on the respondents No.1 to 3. The liability shall be joint and several with respect to the amounts apportioned in the manner referred to above. 6. The award is modified and the appeal is allowed to the above extent. MAY 31, 2011 ( K. KANNAN ) Rajan JUDGE