FAO No. 2641 of 1996 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 2641 of 1996 (O&M) Date of decision: 11.2.2010 Smt. Shimla Devi and others .. Appellants v. State of Punjab and others ..Respondents. CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Sanjeev Patial, Advocate for the appellants. Mr. Palvinder Singh, Senior Deputy Advocate General, Punjab. ... Rajesh Bindal J. The claimants are in appeal against the award dated 22.5.1996, whereby the Motor Accidents Claims Tribunal, Chandigarh, awarded Rs. 1,80,000/- as compensation on account of the death of Balbir Chand. Briefly, the facts are that on 6.3.1995, at about 5.45 p.m., Balbir Chand (deceased) was driving tempo No. HR-37-1490 and going from the side of PTL Tempo Union towards the JCT light point for coming to Chandigarh. When he reached near the light point chowk and had crossed more than half of the rotary, bus bearing No. PB-12-9405 came at a fast speed from the side of Cremation Ground and struck against the rear side of the tempo. Due to the accident, Balbir Chand received serious injuries. Ultimately, he succumbed to the injuries. The appellants, being widow and minor children, filed the claim petition. The learned Tribunal held Balbir Chand (deceased) and the bus driver equally responsible for the accident. It is this award, which is impugned herein. Learned counsel for the appellants submitted that from the material on record produced by the appellants, it could not be concluded that there was negligence on the part of the driver of the tempo. It was the bus, who had hit the tempo at a crossing and then dragged the tempo upto electric pole. The tempo, in fact, had already come in the middle of the crossing and it was the bus, who had to stop under the circumstances. The witness produced by the appellants was an independent witness, whereas in defence, the evidence produced by the FAO No. 2641 of 1996 [2] respondents was in the form of interested witnesses, who were none other than the driver and conductor of the bus. The learned Tribunal had gone wrong in opining that the appellants had failed to produce clinching evidence. Appellant No. 1 in the present case is an illiterate lady, who at that time was in the state of shock as she had to take care of six minor children with no source of income. The respondents could very well lead the evidence in case they were so sure of the case that the accident was as a result of negligence on the part of the driver of the tempo. In fact, by withholding the material evidence, which was available with them, an adverse inference should be taken against the respondents. On the other hand, learned counsel for the State submitted that onus of the issue as regards the negligence was on the appellants and they having failed to discharge the same to enable the Tribunal to hold the respondents 100% negligent and accordingly liable to pay the entire amount of compensation, the award of the learned Tribunal does not call for any interference. In their statements, the driver and the conductor of the bus, who were the best persons and were present at the spot at the time of accident, categorically stated that the accident had occurred on account of negligence of the driver of the tempo and not of the bus driver. Appropriate amount of compensation has already been assessed and paid. Both the parties being equally guilty have been held to be negligent 50:50. Heard learned counsel for the parties and perused the paper book. It is a case in which the accident had taken place between a Punjab Roadways bus and a tempo, being driven by the husband of appellant No. 1 and father of respondents No. 2 to 7. The place of accident is a crossing. The case set up by the appellants is that the accident occurred when the tempo had already reached at the crossing and the bus hit the same and dragged the tempo upto a pole on the side of the road, on account of which the driver of the tempo expired. In support, the evidence of one eye-witness was led, who stated the manner in which the accident took place. As against that, the evidence led by the respondents was only in the form of statements of driver and the conductor, who were the interested witnesses, to prove that the accident had not occurred on account of negligence on the part of the driver of the bus. In case, the stand put forth by the appellants regarding the manner of accident and the negligence was not correct, the respondents also in their defence could lead evidence to demolish the same and should not have merely produced oral evidence of the interested witnesses. The manner in which the accident has been suggested by the driver of the bus, still they can be said to be more negligent than the driver of the tempo. It is claimed by the FAO No. 2641 of 1996 [3] driver of the bus that he had dropped certain passengers before the crossing and was at a very slow speed when the crossing was being passed and the tempo came at a high speed and struck against the bus. Even if this is the position, that means that the bus driver had not seen any vehicle coming at a fast speed from the other side before entering the crossing area, which he was required to do. Had he done so, the unfortunate accident could be avoided. Considering the aforesaid facts, in my opinion, the negligence of 50:50, as opined by the learned Tribunal calls for interference, which is modified to 75:25 for the driver of the bus and the tempo. It is held that negligence on the part of the driver of the bus was to the extent of 75%, whereas of the driver of the tempo, it was to the extent of 25%. The award of the learned Tribunal is modified to that extent. The additional amount of compensation shall be payable to the appellants along with interest @ 6% per annum w.e.f. 7.4.1995, the date of filing of the claim petition till the amount is paid. It was informed by learned counsel for the appellants that three of the daughters, namely, appellants No. 2 to 4 have already been married. Appellants No. 5 to 7 remain to be married. Considering the fact that the widow had made all out efforts in the present case to take care of the large family left on account of the unfortunate death of her husband, in my opinion, it would be appropriate to direct payment of the entire enhanced amount of compensation to appellant No. 1, as the other claimants at present, namely, appellants No. 5 to 7 are also grown up and major. Ordered accordingly. The appeal is disposed of in the above terms. (Rajesh Bindal) Judge 11.2.2010 mk