IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1521 of 1998 (O&M) Date of decision:19.04.2011 Sukhdev Singh and another ...Appellants versus Shri Gurbachan Singh and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Ramanjeet Singh, Advocate, and Mr. Jai Bhagwan, Advocate, for Mr. Arun Palli, Senior Advocate, for the appellants. None for respondents 1 and 2. Mr. Ravinder Mohan Suri, Advocate, and Ms. Vandanaa Malhotra, Advocate, for respondent No.3. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The appeal is against the dismissal of the petition filed for compensation for death of a lady by name Sito Devi. The claimants were the sons of the deceased. The accident was said to have taken place on 25.06.1996 when the deceased was travelling in the second respondent's passengers' bus. The bus was said to have capsized while overtaking a tractor-trolley and when the tyre of the bus got stuck in the mud portion FAO No.1521 of 1998 (O&M) - 2 - that resulted in the bus capsizing and some of the passengers in the bus had received injuries in the accident. The driver of the bus himself had given a complaint to the police the following day i.e. on 26.06.1996, on the basis of which, a DDR had recorded the fact of the accident. 2. The averments in the petition was that the deceased had been taken to the Civil Hospital, Lahra where she was admitted, but later, she had been referred to the Civil Hospital at Sangrur and in the course of transit to the hospital, she had succumbed to her injuries. The contention in the petition was that the deceased was doing agricultural work and since both the petitioners were students, they were not themselves earning and they were fully dependent on the deceased, the father having already expired. The petitioners pleaded that there had been no body to look after them. 3. In the written statement filed by respondents 1 and 2 namely, the driver and the owner, the accident itself was not denied. They had specifically admitted the averments in paragraphs 8 to 10 which contained reference to the accident and the fact that the deceased was travelling in the bus bearing No.PB-11F-9642. They were only interested in contending that the bus was going in the correct and normal speed and there was no negligence on the part of the driver. The Insurance Company filed a statement denying in general terms all the averments in the petition and also the details of insurance and the driving licence of the driver. It was denied that the claimants are the sons of the deceased. It was also denied that the deceased was 45 years of age and had stated that she was 60 years of age. FAO No.1521 of 1998 (O&M) - 3 - 4. Although the involvement of the vehicle or the fact of death of the deceased in the accident was not specifically denied in the pleadings, the trial took a strange turn when the Insurance Company rode on pure conjectures and was trying to make a different story out of the documents produced before the Court that the deceased was not travelling in the bus; the petitioners were not her children and in any event, it was not proved that the petitioners' mother died in the accident. The learned counsel appearing on behalf of the Insurance Company again reiterates with vehemence that there had been discrepant evidence about who accompanied the deceased and when she actually died. The Tribunal found that the petitioners had not established that the deceased had died only out the motor accident and proceeded to dismiss the petition. I find the ultimate decision of the Tribunal to be wholly unacceptable and perverse. The issue is whether there exists any fallibility in evidence that goes so deeply into the merits of the claim for a court to suspect that there was no accident, that there was no death of the woman by name Sito Devi and that the petitioners were not the children of Sito Devi. I may reproduce the evidence to show that the case is not tainted by any untruth on essential points. The under current that goes through the entire version admits of no ambiguity that there had been an accident on 25.06.1996 when the bus bearing No.PB-11F-9642 had capsized and some passengers had suffered injuries. That a woman by name Sito Devi travelled in the bus was also admitted in the statement of respondents 1 and 2. There is no discrepancy in the version of PW3, who was the first petitioner. He stated that he was travelling along with FAO No.1521 of 1998 (O&M) - 4 - the mother and he took Sito Devi to the Civil Hospital, Lahra Gagga and she had been referred to the Civil Hospital at Sangrur. The evidence is to the effect that he had gone along with his mother to the hospital. It was suggested to him in the cross-examination that he was not in the bus at that time and that he had made a false statement. PW4 had been examined in this case, who gave a narration about the accident that had taken place. He had also testified to the fact that Sito Devi was one of the passengers in the bus along with him and that her son was also travelling with her at that time. It was suggested to him also that he was not travelling at that time and that he was giving false evidence only to help the petitioners. PW1 was a Pharmacist at the hospital, who gave evidence to the effect that as per the summoned record, the entry against serial No.5743 contained a reference to a name Sito Devi wife of Hari Chand and it was mentioned in that entry that she was having accident injury on her person. This entry was said to have been made in the hand writing of a doctor by name Anil Batta and he gave evidence to the effect that the said doctor had been transferred to Faridkot. This was a manner of explanation as to why the doctor was not examined. His evidence cannot be discarded, for, his evidence was with reference to the entry in hand writing of a person whose hand writing the witness was acquainted with. I have no doubt in my mind that these versions bring out a fairly cogent trail of events that a lady by name Sito Devi was travelling in the bus which was capsized on account of the negligent driving of the bus and on account of the injuries suffered by her, she had been taken to the hospital. FAO No.1521 of 1998 (O&M) - 5 - 5. A whole edifice has been built by the insurer to bring a ring of suspicion about every one of these facts by factors which are extraneous of the incident. The learned counsel for the Insurance Company would say that the post mortem had not been conducted and it was not shown that a lady by name Sito Devi has died. It was also contended that the death certificate itself had been obtained only subsequent to the filing of the petition. A further point that is made is that the accident had taken place on 25.06.1996 and from the averments in the petition made, it appears as though she had died on the same day. I do not find that any of these discrepancies detract from the fundamental position that Sito Devi travelled in the bus that met with the accident. The fact that the post mortem had not been done would not lead to a conclusion that Sito Devi did not die at all. If the case of her death were to be testified only on the evidence of the petitioners themselves, I will take that to be sufficient. They have contended that their father had already died and with the death of their mother, there is no one to support them. A certain amount of inference will have to be made even in the absence of documentary evidence. I will not discard heartlessly that the death was not true by the fact that the post mortem was not conducted or that the death certificate had been obtained only subsequent to the filing of the petition. 6. Normally an Insurance Company ought not to be heard on any issue other than what is permissible under Section 149, unless it was a case of collusion between the claimants and the owner/driver themselves. The Insurance Company ought not to be heard on either the FAO No.1521 of 1998 (O&M) - 6 - issue of negligence or the involvement of the vehicle itself. The involvement of the vehicle, in this case, was an admitted fact and entered in the DDR. If there was any doubt about the fact whether the deceased was travelling in the bus, I would take the evidence of PW3 as sufficient and I would take also the evidence of PW1, who has made reference to the fact that a lady by name Sito Devi had been brought to the hospital with injuries along with others when an accident had taken place. Cases do admit of certain discrepancies but the important consideration shall be to see whether it is so grave and fundamental that there is a serious cloud of suspicion about the entire narration of facts. I will not uphold the finding of the Tribunal that the petitioners had not proved that their mother died in the motor accident. I cannot also accept the plea that the petitioners are not the sons of Sito Devi. The petitioners have described themselves to be the sons of Hari Chand and Sito Devi had been described as the wife of Hari Chand. If the petitioners were young and if they had stated that their mother was 45 years of age, I will take that to be worthy of acceptance. 7. Learned counsel for the Insurance Company states that there was no negligence on the part of the driver and the accident had taken place by the tyre getting stuck in the mud and the accident was in some way inevitable. I find this to be a strange argument to make on behalf of the insurer. In the first place, the Insurance Company shall not be allowed to join issues on negligence and in the second place, an accident that results in vehicle capsizing does not happen from the blue. If an accident has resulted and the vehicle capsized, it ought to be taken as FAO No.1521 of 1998 (O&M) - 7 - resultant to a negligent maneuvering of the steering by the driver of the bus and the finding of the negligence in such situation ought to be made without exception. 8. The learned counsel for the Insurance Company pleads that the evidence was that PW3 was 22 years of age and the other son Baldev was 3 years younger to him. Both of them were bachelors and claimed that the first petitioner was doing a work as a tailor earning about Rs.1,000/- to Rs.1,200/- and that his brother was working with one halwai and earning Rs.700 to Rs.800/- per month. I would proceed, therefore, to determine the compensation taking the age of the mother to be 45 years as stated by the petitioners and discard a reference to the age as 60, for, even according to the respondent, the death certificate which had been entered subsequently ought not to obtain any credibility. The mother's position to young sons even when they had attained the age of majority cannot be underestimated. In the periods of youth and before marriage, a sobering influence, a mother always has and if both the sons had lost their mother in a situation where they had already lost the father earlier, their loss is poignant and I will take the value of the services of the mother as Rs.2,000/- at the relevant point of time when the accident had taken place and I will estimate the personal loss and contribution to the family of her sons to be at least Rs.1,000/- per month. The sons would have moved on in their life by now and they could have also been married but I would take the loss of dependency of the sons on the mother at Rs.1,68,000/- (1,000x12x14). I will make a further addition of Rs.7,000/- towards the loss to estate and funeral expenses and award FAO No.1521 of 1998 (O&M) - 8 - Rs.1,75,000/- as a compensation payable to the petitioners. The liability shall be on the respondents jointly and severally and the claimant shall be entitled to enforce the award against the 3rd respondent. The amount shall also carry interest at 7.5% from the date of petition till date of payment. 9. The appeal is allowed with costs assessed at Rs.10,000/- against the insurer. (K.KANNAN) JUDGE 19.04.2011 sanjeev