IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 1891 of 1993 Date of Decision : May 05, 2010 Palwinder Kaur and others ....Appellants Versus United India Insurance Co. Ltd. and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. R.S.Longia, Advocate for the appellants. None for the respondents. T.P.S. MANN, J. By a common judgment, the Court intends to dispose of the present appeal and F.A.O. No. 1892 of 1993 as both of them have arisen out of the award dated 27.8.1993 rendered by Motor Accidents Claims Tribunal, Kurukshetra and the appellants in both the appeals are claimants seeking enhancement of compensation. According to the claimants, on 11.7.1992, Balwant Singh was driving truck No. PB-02B-9623 from Delhi to Amritsar. His brother Buta Singh, co-driver, was also sitting in the driver's cabin. At about 3.30 a.m. the truck reached near Umri chowk on G.T. road and was moving at a slow speed and on its correct side when a truck bearing FAO No. 1891 of 1993 -2- No. PB-08-2033 driven by Joginder Singh respondent in a rash and negligent manner came from the opposite side. Respondent Joginder Singh did not dip the light beam and struck his truck against the truck driven by Balwant Singh. As a result, both Balwant Singh and Buta Singh suffered injuries. They were got admitted in Civil Hospital, Kurukshetra from where Buta Singh was referred to PGI, Chandigarh where he died on 20.7.1992. A case under Sections 279/337/338/304-A IPC was registered against respondent Joginder Singh. In their claim petition, Palwinder Kaur and others, legal representatives of deceased Buta Singh, sought compensation of Rs.51,00,000/- while Balwant Singh filed separate claim petition and claimed a compensation of Rs.5,00,000/- on account of the injuries received by him. In their written statements filed in both the claim petitions, respondent Joginder Singh-driver of the offending truck and Avtar Singh, owner of the said truck, denied that the accident had taken place due to rash or negligent driving by Joginder Singh. In fact, the accident in question was caused by Balwant Singh by driving his truck No. PB- 02B-9623 in a rash and negligent manner. Respondent Insurance Company, with which truck No. PB- 08-2033 driven by respondent Joginder Singh stood insured, in its written statements also denied the claims by pleading that it was FAO No. 1891 of 1993 -3- Balwant Singh, who was rash and negligent in driving his truck as a result of which the accident had taken place. On the basis of the pleadings, the Tribunal had framed the following issues:- 1. Whether the accident took place because of the rash and negligent driving by the respondent driver?OPP. 2. If issue No.1 is proved to what amount of compensation the claimants are entitled in each case and from whom?OPP. 2A. Whether the respondent driver was in possession of a valid driving licence?OPR-3. 3. Relief. After hearing the parties and going through the evidence, the Tribunal held that it was a case of contributory negligence. Both Balwant Singh and Joginder Singh were equally liable for causing the accident. The total compensation, as regards the death of Buta Singh, was assessed at Rs.2,80,000/- while in the case of Balwant Singh for the injuries received by him, it was assessed at Rs.70,000/-. Keeping in view the liability of the vehicle of the respondents as 50%, Palwinder Kaur and others were awarded a sum of Rs.1,40,000/- as compensation whereas Balwant Singh was granted Rs.35,000/-. Both the sets of the claimants were also held entitled to interest @ 12% per annum from the date of the claim petitions till realization of the compensation amount FAO No. 1891 of 1993 -4- besides costs of Rs.300/-. The entire amount was made payable by respondent Insurance Company. The only question which needs to be determined in the appeals is about the quantum of compensation to which the claimants would be entitled to. Deceased Buta Singh, according to his legal heirs, used to earn Rs.2,500/- per month, while working as a driver. According to the Tribunal, there was no cogent proof in that regard and, therefore, bare statement could not be taken as a gospel truth. The income was, however, assessed at Rs.2,000/- per month. It is true that the claimants did not produce any material on the record that Buta Singh used to earn Rs.2,500/- per month but at the same time, none of the respondents could rebut the evidence of the claimants by bringing evidence to show that the monthly income was Rs.2,000/- and not Rs.2,500/-. Under these circumstances, the Court is of the view that the income of Buta Singh could easily be assessed as Rs.2,500/- per month. Deceased Buta Singh left behind his widow Palwinder Kaur, his four minor children besides his mother Parkash Kaur. The four minor children of Buta Singh have to be counted as two units. As Buta Singh and his family consisted of five units, the dependency had to be calculated as 4/5ths after leaving 1/5th for the expenses the deceased might be incurring upon himself. Taking the dependency to be 4/5ths, FAO No. 1891 of 1993 -5- the monthly contribution made by Buta Singh was Rs.2,000/- per month or Rs.24,000/- per year. Applying the multiplier of 16, as done earlier by the Tribunal, the claimants would be entitled to receive Rs.3,84,000/- as compensation. To the same, an amount of Rs.5,000/- can be added for Palwinder Kaur claimant on account of loss of consortium and Rs.5,000/- to the claimants for the funeral expenses and transportation of the dead body so as to hold the claimants entitled to receive Rs.3,94,000/- as compensation. As the liability of the vehicle of the respondents was to the extent of 50%, their liability is finally determined as Rs.1,97,000/-. Resultantly, the amount of Rs.1,40,000/- awarded to the legal heirs of deceased Buta Singh as compensation by the Tribunal has to be enhanced to Rs.1,97,000/-. In the case of Balwant Singh claimant for the injuries received by him in the accident in question, the Tribunal held that he must have spent Rs.10,000/- on his treatment and another amount of Rs.10,000/- as the expenses for further operation. Similarly, on account of loss of earning suffered by him, pain and sufferings and on all other counts, the damages were assessed at Rs.50,000/-. The total compensation, thus, assessed came to Rs.70,000/- and as he was responsible for contributory negligence in causing the accident to the extent of 50%, he was awarded an amount of Rs.35,000/- as compensation. As per PW1 Dr. P.K.Soni, on 11.7.1992, when he was FAO No. 1891 of 1993 -6- posted as Medical Officer, L.N.J.P. Hospital, Kurukshetra, he conducted medico-legal examination of Balwant Singh and found the following injuries:- 1. There was pain and swelling right thigh. X-ray was advised. 2. Lacerated wound 3 x 1 cm. on right shoulder. X- ray was advised. 3. Lacerated wound 4 x 1 cm. on right arm. Advised X-ray right arm. 4. Lacerated wound 4 cm. x 1 cm. on right side of neck. 5. Lacerated wound 4 x 1 cm. on right shoulder. 6. Multiple abrasions on right side of scalp. X-ray skull was advised. According to him, Balwant Singh had again come to him on 26.11.1992 and after taking X-ray, he opined that it was an old case of fracture of shaft femur. Skiagram Ex.P3 showed the fracture bone in the process of healing which could be set right by way of operation. When examined as PW2, Balwant Singh claimant deposed that while working as a driver, he used to get Rs.2,500/- per month, which included expenses for out stations. He was also earning Rs.2,500/- per month by way of profits. On account of the accident, he had suffered injuries on his face and other parts of the body, including fracture of right leg. He was treated at L.N.J.P. Hospital, Kurukshetra in the first instance and, thereafter, getting treatment from a private doctor FAO No. 1891 of 1993 -7- at Amritsar. He had spent about Rs.50,000/- on his treatment. His leg had not been fully united and the doctor had prescribed another operation costing about Rs.15,000/- to Rs.20,000/-. He further stated that he could not do any work because of the injuries and, instead, had to employ a driver to drive the truck and such a driver was being paid Rs.2,500/- per month. He had also suffered a loss of Rs.20,000/- on that account. In view of the evidence available on the file, awarding of Rs.10,000/- to Balwant Singh for the expenditure already incurred by him on his treatment and another amount of Rs.10,000/- towards the costs of further operation were on the lower side. He ought to have been awarded an amount of Rs.20,000/- for the expenditure already incurred by him on his treatment and Rs.15,000/- for further operation. Similarly, granting a sum of Rs.50,000/- to him for the loss of earning suffered by him, pain and sufferings and on all other counts, was highly inadequate. Atleast, an amount of Rs.75,000/- ought to have been considered as just and equitable on the said count. In all, compensation payable to him should have been assessed at Rs.1,10,000/- and as he had already been held responsible for contributory negligence to the extent of 50%, he is held entitled to a sum of Rs.55,000/- as compensation. Therefore, the compensation awarded to him by the Tribunal to the tune of Rs.35,000/- deserves to be enhanced to Rs.55,000/-. Resultantly, the compensation amount in the case of FAO No. 1891 of 1993 -8- claimants Palwinder Kaur and others is enhanced from Rs.1,40,000/- to Rs.1,97,000/- whereas in the case of claimant Balwant Singh, it stands enhanced from Rs.35,000/- to Rs.55,000/-. Both the sets of the claimants would also be entitled to interest at the rate of 7.5% per annum on the enhanced amount of compensation from the date of filing of the claim petitions till its realization. The enhanced amount of compensation regarding the death of Buta Singh shall be paid to Palwinder Kaur alone. The costs imposed and the interest awarded by the Tribunal is upheld. The entire enhanced amount of compensation shall be payable by respondent-Insurance Company. Both the appeals, i.e. FAO No. 1891 of 1993 and FAO No. 1892 of 1993 are, accordingly, disposed of. ( T.P.S. MANN ) May 05, 2010 JUDGE ajay-1