FAO No. 612 of 1991 -1- THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 612 of 1991 Date of Decision : April 26, 2010 Asha Chakravarty and others ....Appellants Versus Satish Kumar Adlakha and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Sandeep Sharma, Advocate for Mr Sandeep Vermani, Advocate for the appellants. Mr Aseem Aggarwal, Advocate for for respondent Nos. 1 and 2. None for respondent No.3. T.P.S. MANN, J. (Oral): Award dated 7.3.1991 passed by the Motor Accidents Claims Tribunal, Faridabad has been challenged by the claimants-appellants to the extent of granting them inadequate compensation on account of death of Suresh Chakravarty in a motor vehicular accident. According to the claim petition, on 2.5.1990 at about 10.00 AM, Suresh Chakravarty, since deceased, was going to Delhi from Ballabgarh on his scooter bearing registration No. DBN-7018. He was driving the scooter while Narender Kumar PW-2 was his pillion rider. When they reached near Y.M.C.A crossing, they saw one truck going ahead of them. When the deceased tried to overtake the said truck from the right side, one ambassador car bearing registration No. DIC 114, while being driven by respondent No.1 in a rash and negligent manner and at fast speed came from the opposite direction and struck the scooter by coming on its FAO No. 612 of 1991 -2- wrong side. As a result of the accident, the deceased received injuries. He was first removed to Escort Medical Centre, Faridbad, from where, he was referred to All India Institute of Medical Sciences, New Delhi, where he unfortunately succumbed to his injuries on 6.5.1990. According to the claimants, who are wife and three minor children of the deceased, the deceased was about 32 years of age at the time of his death and one of the three partners of M/s Chakravarty Steel, situated at Faridabad and earning approximately Rs.5,000/- per month. The claimants were entirely dependent upon his income and as the accident had taken place due to negligence of respondent No.1, driver of the offending car, they were entitled to an amount of Rs.15 lakhs as compensation. While opposing the claim petition, respondent Nos. 1 and 2, i.e. the driver and owner, respectively, of the offending car, filed a joint written statement, wherein they admitted the factum of the accident but asserted that at the time of the accident, respondent No.1 was neither rash nor negligent in driving the car. In fact, on the day of the accident, one side of Mathura road was closed and the entire traffic moving in the opposite direction stood diverted to move on a single road and the accident took place due to mis- judgment and mis-calculation and therefore, they were not liable to pay any compensation. Respondent No.3 i.e. the Insurance Company with which the offending car stood insured filed separate written statement, wherein it denied the allegations levelled by the claimants and stated that it was not liable to pay any amount as compensation. The car in question had not struck head-on with the scooter. The driver of the scooter did not have a valid driving licence. Moreover, the claim petition was bad for non-joinder FAO No. 612 of 1991 -3- of necessary parties as the owner and insurer of scooter No.DBN-7018 had not been impleaded as such and for mis-joinder of parties. On 15.11.1990, the Tribunal framed the following issues: 1. Whether the accident on 2.5.90 at about 10.00 A.M in the area of PS Central Faridabad, took place due to rash and negligent driving of Satish Kumar, driver of Car No.DIC- 114? OPP 2. If issue No.1 is proved whether the petitioners are entitled to compensation, if so, to what amount and from whom? OPP 3. Whether the claim petition is bad for non-joinder of necessary parties and mis-joinder of parties as alleged in para no.3 of the preliminary objections of written statement? OPR-3 4. Whether the respondent no.1 was having a valid driving licence and was authorised by the insured to drive the vehicle at the time of accident? OPR-3 5. Relief. In support of their claim petition, the claimants had examined PW-2 Narender Kumar, PW-3 Kamal Singh, PW-4 Lekh Raj, Ahlmad, PW-5 Sushil Nagpal, Chartered Accountant, PW-6 Sudarshan Chakravarty, besides one of the claimants, namely, Asha Chakravarty stepping into the witness box as PW-1. On the other hand, the respondents examined RW-1 Naresh Kathuria. Copy of the insurance policy Ex.R-1 was tendered into FAO No. 612 of 1991 -4- evidence. After hearing learned counsel for the parties and going through the evidence brought on record, the Tribunal held that the accident in question had taken place due to negligence of both the drivers i.e. the deceased himself, who was driving scooter No.DBN-7018 and respondent No.1, who was driving the offending car and they were equally at fault. The deceased was found to be earning an amount of Rs.32.239.66 ps. per annum. However, he had drawn more amount for his expenses than the profit in the year 1990, so it was presumed that he was spending more than 1/3rd income upon himself. Accordingly, 40% was considered towards his personal expenses and the dependency assessed at Rs.19,344/- per annum, which was rounded of to Rs.19,350/-. As the deceased was 32 years of age, multiplier of '20' was applied by the Tribunal to determine compensation as Rs.3,86,880/-. However, the claimants were awarded an amount of Rs.1,93,440/- only as compensation since the liability of respondent No.1, the driver of the offending car was only 50%. All the respondents were held jointly and severally liable to pay the aforementioned amount as compensation, alongwith interest at the rate of 12% per annum from the date of petition till the payment of the amount. I have heard learned counsel for the parties and perused the evidence with their able assistance. It is there on the record that on the date of accident, one side of Delhi Mathura dual carriageway meant for the traffic moving from Delhi to Ballabgarh stood closed and for that reason, the said traffic diverted on the other side of the divider, meant for traffic proceeding from Ballabgarh to Delhi. Respondent No.1 at that time was driving the offending car from FAO No. 612 of 1991 -5- Delhi to Ballabgarh. On the other hand, the deceased while accompanied by PW-2 Narender Kumar was proceeding on his scooter No.DBN-7018 from Ballabgarh towards Delhi. There was a truck moving in front of the scooter driven by the deceased. In order to over-take the said truck, the deceased moved on to the wrong side of the road without noticing the ambassador car coming from the opposite direction. At that point of time, there was mis-judgment and mis-calculation on the part of the deceased, who was driving the scooter and respondent No.1, who was driving the offending car. Under these circumstances, both the drivers were equally at fault in the commission of the accident. Therefore, the Tribunal was justified in concluding that it was a case of contributory negligence and both the drivers were responsible equally in causing the accident. The deceased was 32 years of age at the time of his death. As per the testimony of PW-5 Sushil Nagpal, Chartered Account, the deceased had earned an amount of Rs. 32,239.66 ps. in the year 1989-90 as profit from the partnership, but had withdrawn an amount of Rs.48,700/- for his personal expenses. This was held to be an indication of the fact that the deceased was spending more than 1/3rd of the income upon himself. Accordingly, 40% was deducted out of Rs.32,239.66 ps. towards the personal expenses so as to determine the dependency as Rs.19,344/-, rounded of to Rs. 19,350/-. The multiplier of '20' was then applied to hold that the total amount of compensation was Rs.3,86,880/-, but in view of the fact that liability of respondent No.1 was only 50% in causing the accident, the claimants were held entitled to receive an amount of Rs.1,93,440/- as compensation. To that extent, the findings arrived at by the learned Tribunal do not call for any interference. FAO No. 612 of 1991 -6- However, learned Tribunal did not award any amount to the claimants towards funeral expenses, transportation of the injured first to Escort Medical Centre, Faridabad and thereafter, to All India Institute of Medical Sciences, New Delhi and the amount spent by the claimants on the treatment of the deceased before his death. Further, no amount has been awarded to Smt. Asha Chakravarty on account of loss of consortium. It has appeared in the statement of PW-1 Asha Chakravarty that she had spent an amount of Rs.7/8,000/- on the treatment of her husband before his death on 6.5.1990. In all reasonableness, the claimants were entitled to receive an amount of Rs.7,500/-on the said count. Besides, they were also entitled to an amount of Rs.2,000/- towards the funeral expenses and Rs.2,500/- on account of transportation and other miscellaneous expenses. At the same time, Smt. Asha Chakravarty was also entitled to receive an amount of Rs.5,000/- under the head 'loss of consortium'. Therefore, the amount of compensation already awarded to the appellant by the Tribunal requires to be enhanced by an amount of Rs.17,000/-in all. Resultantly, the compensation amount of Rs.1,93,440/- awarded by the Tribunal is enhanced by Rs.17,000/-. All the respondents shall be jointly and severally liable to pay the said amount. The claimants shall also be entitled to interest on the enhanced amount at the rate of 7.5% from the date of the claim petition till its realization. The appeal is, accordingly, disposed of. ( T.P.S. MANN ) April 26, 2010 JUDGE Pds