IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2473 of 1999 Date of Decision: 03.03.2011 Smt. Kuldip Kaur and others ........Appellants Versus Surinder Singh and others .......Respondents CORAM:- HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Hardip Singh, Advocate for the appellants. Mr. Vishal Goel, Advocate for respondent No.1. None for respondent No.2. Mr. Sanjeev Pabbi, Advocate for respondent No.3. ****** K.KANNAN, J. (ORAL) 1. The appeal is by the claimants against the dismissal of the petition seeking compensation for death of male namely Kuldip Singh, aged 29 years. He was soldier in the Army and earning ` 2200/- per month. The claimant No.1 is widow and claimant Nos.2 to 4 are three minor children. The accident took place on 14.11.1993 by a collision of the motorcycle with scooter in which the deceased was on a scooter driven by respondent No.1 and owned by one Balbir Singh-respondent No.2. The factum of accident is not in dispute. The deceased had been taken to the Government Hospital, Kurali immediately and later referred to PGI for better clinical management. The scooterist Surinder Singh also appears to have suffered some injury and the doctor, who had made the entries in the FAO No.2473 of 1999 -2- MLR, had been examined as RW-1. An information regarding the accident was entered in the DDR but the police did not proceed with the investigation to charge the scooterist of any offence, since according to the police, the parties had compromised the matter and the deceased was said to have given a statement that no one is responsible for the accident. The Tribunal accepted this alleged statement as constituting an admission against the claimants. At the trial, apart from AW-1, who was wife of Kuldip Singh, who has spoken about the status, AW-2 one Jit Singh, an elderly person of 60 years and retired as Head Master of the School, gave evidence to the effect that at about 4 PM, a scooter went past him, being driven at fast speed and struck against the motorcycle, coming from the opposite direction. According to him, as a result of impact both the vehicles the drivers fell down and received injuries. The witness stated that he knew Surinder Singh but he did not know Kuldip Singh at the time of accident. In the cross-examination, the witness was put to test from which direction he was going and regarding the manufacturing details of the vehicles. The witness stood his ground and also stated that Kuldip Singh was plying on a Rajdoot motorcycle and he also gave details of the registration numbers of the vehicles. AW-3 brought the DDR, which was said to contain the fact that the accident had taken place by the fault of neither of the parties. 2. On the respondent side, evidence was brought through some doctors to speak about the injuries suffered by Surinder Singh. RW-1 who spoke to the effect that the deceased was under the influence of liquor admitted, however, in his evidence that no such FAO No.2473 of 1999 -3- detail had been entered in the MLR. The Tribunal, therefore, discarded the evidence that the deceased was in a drunken state. RW-2 was a doctor who treated Surinder Singh and his evidence is irrelevant to this case. RW-3, a Head Constable, produced the copy of compromise and statement recorded in DDR from one Karam Singh. RW-4 Surinder Singh stated that the motorcycle was driven in a zig zag manner and it appeared that the deceased had consumed liquor. He admitted that he did not register any complaint to the police, attributing negligence to Kuldip Singh. He stated, however, that he compromised the case with Kuldip Singh and his father and it was reduced to writing. He also stated that it was on the basis of the compromise that DDR was recorded and investigation was closed. Since AW-2 Jit Singh had stated that he was an eye-witness and that he also knew him, he was also cross-examined about his presence at the spot. Surinder Singh admitted that he knew Jit Singh but said that he was not present at the time of accident. The accident had taken place on 14.11.1993 and compromise was said to have been made on 15.11.1993. I will not give any value to this compromise, since it is in evidence of the doctor himself that Kuldip Singh was brought to the hospital in an unconscious stage. He had died in a weeks time and it is impossible to believe that compromise could have been made voluntarily, even if such a compromise is true. This is even a fundamental wrong committed by the Tribunal by relying on this compromise when the person, who wrote the compromise, was not examined and the deceased could not have been bound by a statement made, while on death bed. FAO No.2473 of 1999 -4- 3. RW-5 Swaran Singh gave evidence to the effect that he had seen the accident. He had stated that deceased was under the influence of liquor and the accident had taken place by his negligent driving. RW-6 Amar Chand gave similar evidence to the effect that it was the motorcyclist who was responsible for the accident. RW-7, S.I. Om Parkash, who was present at the police station, spoke about the fact that the compromise has been effected under Ex.R-4 and that an attested copy had been filed as Ex.R-5. He has stated that Karam Singh had given a statement and since there was no evidence pointing to the negligence of Surinder Singh, no case was registered. He admitted that he was not himself personally aware of any compromise and that it was not made in his presence. 4. After going through all the documentary evidence and oral evidence placed, it is proved that the accident had taken place only by collision of both the vehicles. Unfortunately, the site plan has not been produced. It is not possible to comprehend from the evidence as to the exact location of the road where the accident had taken place. On both sides, evidence had been tendered to the effect that the other was responsible and both of them had drawn charges that the other was in a drunken state. This accident is a someway product of negligence and in a case of collision of this type with inconsistent evidence on both sides. I will hold that both of them as responsible for the accident and the deceased had himself contributed to the accident of 50%. I reverse the finding that there had been no negligence on the part of the respondent. I will hold that the respondent Surinder Singh was responsible for the accident to the FAO No.2473 of 1999 -5- extent of 50%. 5. The deceased was a soldier in the Army, drawing ` 2200/-. I will apply the scale of compensation suggested by the Hon'ble Supreme Court in Sarla Verma Versus Delhi Transport Corporation and another, (2009) 6 SCC 121 and tabulated the compensation as below:- Income : 2200 Increase by 50% : 3300 Deduction ¼ : 2475 Multiplicand : 2475 x 12 Multiplier : 17 Loss of dependence : 5,04,900 Loss of consortium : 12,500 Loss to estate : 5000 Funeral Expenses : 2500 _____________ Total 5,24,900 _____________ 6. The total amount of compensation determined shall stand abated by 50% and remaining 50% shall be paid by the first respondent Surinder Singh. Respondents No.2 and 3 have been already exonerated by orders passed by this Court even before the appeal was taken up for hearing. The amount shall also be paid along with interest at 7.5% from the date of petition till the date of payment. The amount shall be distributed equally amongst the widow and children. The award is set aside and the appeal is allowed. March 03, 2011 (K.KANNAN) Gagan JUDGE