IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 1564 of 1995 Date of Decision : May 12, 2010 Manjit Kaur and others ....Appellants Versus Tilak Raj and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. S.S.Swaich, Advocate for the appellants. None for respondents No.1, 2 and 4 to 6. Mr. N.K.Khosla, Advocate for respondent No.3. T.P.S. MANN, J. Instant appeal is directed against the judgment passed by Motor Accidents Claims Tribunal, Patiala on 17.2.1995 whereby the petition filed by the claimants/appellants under Section 166 of the Motor Vehicles Act, 1988, was dismissed. The case of the claimants, who are legal representatives of deceased Gurcharan Singh, was that on the night intervening 17/18.7.1993 at about 12 o'clock, Gurcharan Singh deceased was on his bicycle and going to his village. He was riding the bicycle on the left hand side of the road. When he reached near Bains Petrol Pump on the G.T.Road, an Ambassador Car bearing No. CH-01H-1411 came from behind and hit the cycle of deceased Gurcharan Singh. Due to the FAO No. 1564 of 1995 -2- impact, Gurcharan Singh fell on the road. He sustained injuries and died at the spot. Death of Gurcharan Singh took place due to rash and negligent driving of the car by Tilak Raj respondent No.1. The accident was witnessed by many people of the locality and was even seen by the passers by. Gurcharan Singh deceased was working as a Driver on truck No. PEP-7271 owned by one Shiv Ram. He used to earn Rs.3,000/- per month. The claimants were dependent on him. Accordingly, they sought Rs.8,00,000/- as compensation. The claim petition was contested by Tilak Raj, respondent No.1 by pleading that Krishan Kumar, resident of House No. 2021, Sector 44-C, Chandigarh was the registered owner of the car in question and the car was insured with National Insurance Company, Branch, Chandigarh. Tilak Raj denied that any accident took place due to his rash and negligent driving. Respondent No.2-Krishan Kumar in a separate written statement admitted that he was owner of the car. It was pleaded that the car was being driven by Tilak Raj, who had a valid driving licence to drive the car. This car was insured with National Insurance Company. National Insurance Company-respondent No.3, in a separate written statement, denied the occurrence and also its liability to pay any amount. Later on, it came out that Krishan Kumar had sold the car to FAO No. 1564 of 1995 -3- one Gurdev Singh. Said Gurdev Singh was impleaded as respondent No.4. Since he had died, his legal representatives were impleaded as respondents No.4 to 6 but they did not file any written statement. From the pleadings of the parties, the following issues were framed:- 1. Whether Gurcharan Singh son of Sucha Singh died in road accident caused by rash and negligent driving of Ambassador Car No.CH-01H-1411 by Tilak Raj- respondent No.1 on 17.7.1993 near Bains Petrol Pump, G.T. Road, Bassi Pathana?OPA. 2. Whether the claimants are entitled to compensation, if so, to what extent and from whom of the respondents?OPA. 3. Relief. After hearing learned counsel for the parties and going through the file, the Tribunal decided issue No.1 against the claimants and dismissed the claim petition with costs. While doing so, the Tribunal observed in para 13 of the impugned judgment as follows:- “The fact, that Amar Singh who had lodged the FIR on the next morning that some unknown vehicle had caused the accident and further the fact that no record from the police was produced to show that the police had further investigated the case in pursuance of this FIR, goes to show that the police had closed the case. Further, for all the six months period, the number of vehicle was not disclosed nor any representation or complaint ever made to any authority that the police FAO No. 1564 of 1995 -4- was involving the driver of the vehicle or the owner of the vehicle, and then giving the number of the vehicle and the name of the driver in the claim petition only, will show that the claimants are colluding with driver respondent No.1 and the owner, so that compensation be awarded and the Insurance Company becomes liable to pay the compensation, since the owner shall have to be indemnified by the Insurance Company. When the occurrence had taken place near the Petrol Pump and four five persons of the Petrol Pump had come as claimed by AW2 and the police had also come, then the number of vehicle could easily be given to the police at that time or any of those four five persons of that Petrol Pump could come and depose about the number of the vehicle. The only conclusion will be that Gurcharan Singh was hit in the night by some vehicle. He died and till the next morning, none knew as to which vehicle was involved, therefore, the FIR was lodged that some unknown vehicle had hit and killed Gurcharan Singh. Thereafter also it could not be ascertained who had caused the occurrence. Then after waiting for some time and when the statutory period for filing the claim petition was coming to an end, then some vehicle which was insured and a driver who had a driving licence, were impleaded, so that compensation may ultimately be taken from the Insurance Company. From all this, this issue is decided against the claimants in favour of the respondents”. Learned counsel for the parties have been heard and the file scanned with their able assistance. FAO No. 1564 of 1995 -5- In the claim petition, the manner in which the accident had taken place, was described as under: “That on dated 17/18.7.1993 at about 12.00/12.15 P.M. (night) Gurcharan Singh deceased was on his bicycle and was going to his village and was on the left side of the road. When he reached near the Bains Petrol Pump on the G.T. Road then an Ambassador Car came from behind and hit the cycle of the deceased. Due to the impact, the deceased fell down on the road and sustained various injuries on his body and died on the spot. The speed of the Ambassador Car was very fast. The Registration Number of the car was CH01/H 1411. The accident took place because of rash and negligent driving of respondent No.1. The accident has been witnessed by so many people of the locality and was seen by the passers by.” In support of the aforesaid, the claimants had examined AW2 Rajinder Kumar, who deposed as under: “On 17.7.93 at about 12 in the night, I was coming from Mubarakpur to Chandigarh on my scooter. When I was at a distance of 2½ kilometers towards Ambala side from Zirakpur, facing Zirakpur side, near Bains Petrol Pump, then an Ambassador Car No. CH- 01H-1411 came from behind. It was of red colour. It had come at fast speed. I just got saved from that car. It went ahead of me at a high speed. When it had just gone 15/20 yards further, a cyclist was peddling his cycle and going towards Zirakpur. That car struck in FAO No. 1564 of 1995 -6- that cycle from behind. That cyclist fell down with multiple and many injuries. That car was stopped by the driver at a further distance of 15/20 yards. He had brought the car back to the place of occurrence. A black colour Hindu gentleman was driver of the car but when he saw the cyclist in that condition and felt that the cyclist had died, he had run away from the spot. I can recognize the driver if shown. 4/5 persons came from the petrol pump. That cyclist had died meanwhile. From search of the pocket a driving licence was found from the person of that cyclist. From that licence we learnt that deceased was Gurcharan Singh of Lohgarh. The Petrol Pump persons had informed Dera Bassi Police Station. The police had come and they had recorded my statement. I had given my address to the police and to the Petrol Pump people and then had left. Police had taken the dead body for post mortem examination”. During his cross-examination, he stated that he had gone to Mubarakpur since some of the dealers of National Textile Agency on whose shop he worked as a Salesman, resided there and there was birthday of son of that dealer. The cyclist had fallen on further left side of the road after the cart had hit the cyclist. Since the car driver brought the car back to the spot, he noted its registration number. The dead body was taken by Harpal Singh, SPO from the spot for post mortem and he did not accompany and left therefrom. He denied the suggestion that he was not present at the time of accident. He also denied the FAO No. 1564 of 1995 -7- suggestion that in fact he had hit his scooter in the cycle and caused the accident. Respondent Tilak Raj had stepped into the witness box as RW1 and deposed as under: “I am working as driver for the last seven years. I have brought the original Driving Licence. Ex.R1 is the photostat copy of the same. In the year, 1993, I was working as driver with Gurdev Singh, owner of M/s Gurdev Trading Company, Chandigarh on car No. CH- 01H-1411. On 17.7.1993, I was driving that car from Ambala to Chandigarh and at about mid night when I was near a petrol pump near Dera Bassi. Then some person was coming on his cycle. He came all of a sudden on the road from the Pump side. I applied the brakes and tried to save that man. My car had hit that cycle. The cyclist fell down. Then people from the Petrol Pump also came. They allowed me to go since I was not at fault. The occurrence did not take place due to any fault of mine. The person, who had fallen on cycle was alright at that time when I left the spot.” From the tenor of suggestion put by the respondents to AW2 Rajinder Kumar during his cross-examination which he denied that infact he had hit his scooter in the cycle and caused the accident, it is apparent that the respondents admitted that said Rajinder Kumar was present at the spot at the time of accident. If that was so, his version that it was an Ambassador car bearing registration No. CH-01H-1411 which FAO No. 1564 of 1995 -8- dashed against the cycle pedalled by the deceased from behind and as a result, the deceased fell down and received injuries has to be accepted. Mere fact that he had not lodged any report or not divulged the number of the offending vehicle is no ground to hold that he had not witnessed the accident. He had deposed that it was Harpal Singh, SPO, who took the dead body for post mortem. His version finds corroboration from the post mortem report A3 wherein it was mentioned that the dead body was brought by said Harpal Singh. AW2 Rajinder Kumar was an independent witness as no material is available to show that he was related to or connected with the deceased. In the absence of any suggestion by the Insurance Company to RW1 Tilak Raj as well as to AW2 Rajinder Kumar, it cannot be concluded that there was a collusion between the claimants on the one hand and owner and driver of the car on the other. In view of the above, finding on issue No.1 arrived at by the Tribunal is reversed by holding that the accident in question was caused by Tilak Raj respondent by driving Ambassador car No. CH- 01H-1411 in a rash and negligent manner. In the post mortem report as well as the claim petition, the deceased was mentioned as 26 years of age. According to his widow AW1 Manjit Kaur, he used to work as a driver on a truck with Shiv Ram and giving Rs.3,000/- per month for household expenses. His father had FAO No. 1564 of 1995 -9- already died whereas his mother was an aged lady of 60 years of age. He also left behind daughter Seema, aged 6 years. All the claimants were dependent on him as they were having no other source of income. In cross-examination, AW1 Manjit Kaur stated that the owner of the truck used to give Rs.3,000/- per month as salary to the deceased. She denied if the deceased was not a driver by profession or that he was only a casual labourer. There is no material on the file to establish that the deceased was a truck driver. AW1 Manjit Kaur admitted that she did not know Shiv Ram, the truck owner, with whom her husband was working. She did not know registration number of the truck which the deceased used to drive. So much so, she did not produce the driving licence of the deceased. Under these circumstances, the deceased can only be taken as a casual labourer and earning Rs.1,500/- per month. Keeping in view that the deceased left behind his old mother, widow and six years' old daughter, the dependency has to be calculated as 2/3rds, i.e. Rs.1,000/- per month or Rs.12,000/- per year. The deceased being 26 years of age, it would be appropriate to apply the multiplier of 17. Thus, the claimants are entitled to an amount of Rs.2,04,000/- (Rs.12,000x17) as compensation. Over and above, amount of Rs.5,000/- can be granted to the widow on account of loss of consortium and Rs.2,000/- towards the transportation of the dead body and funeral expenses. In all, the claimants are entitled to receive Rs.2,11,000/- as FAO No. 1564 of 1995 -10- compensation. There is no denial of the fact that the offending car stood duly insured with respondent No.3 and Tilak Raj respondent No.1 had a valid licence to drive the same. Under these circumstances, respondent- Insurance Company is liable to indemnify the driver and owner(s) of the offending car. Issue No.2 is decided, accordingly. Resultantly, the appeal is accepted, impugned judgment passed by Motor Accidents Claims Tribunal is set aside and the claim petition is allowed by granting the claimants/appellants an amount of Rs.2,11,000/- as compensation to be paid by the respondents jointly and severally. The claimants shall also be entitled to interest at the rate of 7.5% per annum on the aforesaid amount from the date of filing of the claim petition till its realization. Out of the compensation amount, the mother of the deceased be paid Rs.30,000/- while the remaining be paid to the widow and daughter of the deceased in equal shares. ( T.P.S. MANN ) May 12, 2010 JUDGE ajay-1