IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 520 of 1998 Date of Decision:August 25, 2009 Ishwar and others ....Appellants Versus Amarjeet Singh and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Pritam Saini, Advocate for the appellants. None for respondents No.1 and 3. Mr. R.M.Suri, Advocate for respondent No.2. Mr. Neeraj Khanna, Advocate for respondents No.4 and 5. T.P.S. MANN, J. Alongwith the present appeal, the Court intends to dispose of F.A.O. Nos. 521, 522, 523, 524, 525, 526, 527, 528, 1295, 1296, 1297, 1298, 1299 of 1998 and Civil Revision Nos. 1627, 1628, 1629, 1827, 1828, 1829, 1830, 1831, 1832 and 1833 of 1998, as all of them arise out of a common award rendered by Motor Accidents Claims Tribunal, Karnal on 20.10.1997. Fourteen claim petitions were filed before the learned Tribunal on the allegations that on 24.4.1993 the standing crops of the claimants were to be harvested by harvester/combine bearing registration No. HR-05-6552. At about 1.30 p.m. when the thrashing FAO No. 520 of 1998 -2- was in progress, the harvester/combine came in contact with loose electricity wires of the Haryana State Electricity Board (hereinafter referred to as the Board), which were passing over the fields where the said harvester/combine was working. On account of the harvester/combine coming in contact with the loose wires, a spark occurred. The spark fell on the diesel tank of the combine which gave rise to the fire. The combine was badly burnt. The fire also spread to the dry wheat crops and, as a result, the wheat crop in about 70 acres of the land belonging to the claimants was burnt/destroyed. According to the claimants, the wires had not been properly installed by the Board and they were hanging virtually in the shape of a bow. In case the Board had been careful in maintaining the electricity wires and the driver of the combine in driving the combine, the accident would not have occurred and the crops of the claimants would not have suffered damages. Therefore, both the Board and the driver of the combine were responsible for the accident. The matter was also reported to the police vide DDR No. 18 dated 24.4.1993. In all the claim petitions, Bhupinder Singh, driver of the combine, Ishwar, Prem and Sahiba, registered owners of the combine, the United India Insurance Company Ltd. Karnal, insurer of the combine, State of Haryana through Secretary, Ministry of Power and Electricity, the Chief Engineer, Haryana State Electricity Board and Sub Divisional Officer (Operation), Haryana State Electricity Board were FAO No. 520 of 1998 -3- arrayed as respondents. Bhupinder Singh, driver of the combine, was proceeded against ex parte. In their written statement, Ishwar, Prem and Sahiba, registered owners of the combine, besides taking preliminary objections regarding maintainability of the claim petitions and the claim petitions having been hopelessly time barred, denied the contents of the claim petitions and pleaded that Bhupinder Singh was driving the combine with due diligence. The accident had taken place due to the fact that loose and stray wires of the Board came in contact with the combine when it was passing under them and as a result thereof the diesel tank of the combine had caught fire and burnt. Even as per the DDR, the accident had taken place without any fault on the part of the driver. The United India Insurance Company Ltd. in its written statement took up the preliminary objections about the liability of the Insurance Company being limited upto Rs.6,000/- and the driver of the combine had been wrongly attributed negligence. On merits, it was asserted that the facts in the DDR were twisted. The story of the negligence of the driver had been tailored just to file the claim petitions under the Motor Vehicles Act. The accident had occurred due to the electric spark and there was no negligence on the part of the driver of the combine. The loss occurred to the claimants was denied on the ground that the same had been assessed wrongly. Additional plea about the driver of the combine not holding a valid driving licence was also FAO No. 520 of 1998 -4- taken. The State of Haryana, Chief Engineer of the Board and the Sub Divisional Officer (Operation) of the Board in their joint written statement while taking preliminary objections of locus standi, jurisdiction and the claimants not coming to the Court with clean hands, denied the contents of the claim petitions. It was pleaded that they had no knowledge about the alleged accident nor they were aware of any report. They denied knowledge about the manner in which the accident had taken place. There was no negligence whatsoever on the part of the Board in maintaining local distribution system as there was no complaint of loose/stray wires by any of the claimants. Infact, there were no loose/stray wires as alleged. The accident occurred due to the negligence on the part of the claimants themselves, who had not looked after the crops in proper manner. If at all there was any negligence, it was on the part of the driver and owner of the combine with which the alleged accident had taken place. Also, the amount claimed was highly excessive. All the claim petitions were consolidated by the learned Tribunal. The following issues were framed:- 1. Whether the accident in question took place due to defective electricity wiring and transformers by the HSEB or due to rash or negligent driving of the combine/harvester No. HR-05-6552 by respondent FAO No. 520 of 1998 -5- No.1 Bhupinder Singh or due to the negligence of both respondent No.1 and HSEB?OPP 2. If issue No.1 is proved whether the petitioners in all the petitions are entitled to get compensation, if so, how much and from which of the respondents?OPP. 3. Whether respondent No.3-Insurance Company is not liable to pay any compensation in view of the preliminary objections and additional pleas taken in the written statement?OPR 4. Whether this Tribunal has got jurisdiction to try this claim petition?OPP 5. Whether the petitioner has locus standi to file this petition against HSEB?OPP 6. Relief. After hearing learned counsel for the parties and going through the evidence on record, learned Tribunal held that on account of strong wind blowing on the day of the accident, the electricity wires passing over the fields of the claimants had become loose and, therefore, came in contact with the harvester. At the same time, Bhupinder Singh had not taken due care while driving the combine and as a result the unfortunate accident occurred. Had he been conscious about the wires hanging loose over the fields, the accident could have been easily avoided. Therefore, the Board was negligent to the extent of 25% whereas the negligence of the driver of the harvester/combine was 75%. FAO No. 520 of 1998 -6- The driving licence of Bhupinder Singh was not disputed by the Insurance Company but despite the same the liability of the Insurance Company qua the damage to the property was only to the extent of Rs.6,000/-, more so when no extra premium had been paid for third party property damages. Issues regarding jurisdiction of the learned Tribunal and the locus standi of the claimants were decided in favour of the claimants in view of the decision of this Court in Baldev Kaur and others V Nazar Singh and others 1997 PLR 1. Accordingly, all the claimants, except Smt. Phulka and Bhupinder Pal Kaur, were granted compensation @ Rs.6,275/- per acre. The claim petitions filed by Smt. Phulka and Bhupinder Pal Kaur were, however, dismissed for want of any evidence. Out of the amounts granted to the claimants as compensation, the liability of the Insurance Company was held to the extent of Rs.6,000/- in each case and for the remaining amount, the liability was held to be that of Bhupinder Singh, driver and Ishwar, Prem and Sahiba, registered owners of the harvester/combine, jointly as well as severally. Aggrieved of the impugned award, Ishwar, Prem and Sahiba, registered owners and Bhupinder Singh, driver of the harvester/combine filed F.A.O. Nos. 520 to 528 of 1998 and Civil Revision Nos. 1627 to 1629 of 1998 wherein they have prayed for setting aside of the impugned award. Similarly, the Haryana State Electricity Board through its Chief Engineer and Haryana State FAO No. 520 of 1998 -7- Electricity Board, Gharaunda through its Sub Divisional Officer (Operation) filed F.A.O. Nos. 1295 to 1299 of 1998 and Civil Revision Nos. 1827 to 1833 of 1998 wherein they also prayed for setting aside of the impugned award and dismissal of the claim petitions of those claimants whose claim petitions stood accepted by the learned Tribunal. I had heard learned counsel for the parties and perused the impugned award as well as the evidence available on the record. To prove their case, the claimants had examined PW1 Amarjit Singh son of Kulwant Singh, PW2 Nishabar Singh, PW3 Baldev Singh, PW4 Amarjit Singh son of Gian Inder Pal Singh, PW5 Rupinder Kaur, PW6 Paramjit Singh, PW7 Kashmir Kaur and PW8 Jasbir Kaur, who were the claimants in their respective claim petitions. They also examined PW9 Sultan Singh, Patwari, who proved his statement Ex.PX and copies of jamabandies Exs. PX/1-13. According to him, the total loss assessed was Rs.4,00,000/-. He also proved copy of Rojnamcha Ex.PX/15 and the loss per killa was Rs.6,275/-. The claimants also tendered in evidence the newspaper cutting dated 1.5.1993 mark X and closed their evidence. On the other hand, the respondents in the claim petitions had examined RW1 Trivedi Lal, Senior Assistant, United India Insurance Company Limited, who proved copy of insurance policy Ex.R1, RW2 Tara Chand, Junior Engineer, HSEB, RW3 Harminder Singh, who proved the site-plan Ex.R2, RW4 Bhupinder Singh, driver of the harvester/combine, RW5 Bhartu Ram, FAO No. 520 of 1998 -8- RW6 ASI Bhagwan Chand, who proved DDR No. 18 dated 24.4.1993, RW7 Ishwar, owner of the harvester/combine, RW8 Rajiv Singh, who claimed to be present in the fields of one of the claimants on 24.4.1993 and plying his combine and RW9 Shruti Kant, Assistant, D.C. Office, Karnal, who proved instructions Exs.R5 and R6. It is the admitted case of the claimants on the one hand and the driver and registered owners of the offending harvester/combine on the other that the accident did take place on 24.4.1993 when the harvester/combine came in contact with the wires of the Board, which were passing over the fields and there was a spark as a result of which the harvester/combine caught fire and the fire spread in the fields and destroyed the crops belonging to the claimants. From the testimonies of the claimants, it is clear that on 24.4.1993 at about 3.00 p.m. when the thrashing was in progress, the harvester/combine came in contact with the electric wires, which were hanging at a height of 8/9 feet from the ground. On account of the harvester/combine coming in contact with the loose electric wires, there was a spark as a result whereof the harvester/combine caught fire. The wheat crop also caught fire from the harvester/combine. There was a strong wind blowing at the relevant time. On the other hand, it has come in the statements of RW5 Bhartu Ram and RW7 Ishwar that due to strong winds, the electricity wires touched each other and there was a spark and on account of the same the harvester/combine caught fire. Both of them also stated that the FAO No. 520 of 1998 -9- harvester/combine did not come in contact with the wires. However, their statements cannot be given any credence in view of the version given by PW3 Baldev Singh immediately after the accident, i.e. on 24.4.1993 at 4.00 p.m. when said Baldev Singh reached Police Station Gharaunda and made a statement on the basis of which DDR No. 18 was registered. It was mentioned by him in the said DDR, copy of which is on the record as Ex.PX/14, that the spark occurred on account of the harvester/combine coming in contact with the loose electricity wires passing over the fields as a result whereof the harvester/combine as well as the crops caught fire. Though while appearing as PW3 Baldev Singh deposed that there was a spark from the overhead electric wires due to which the harvester/combine caught fire yet at the same time, he also stated that the driver of the harvester/combine was negligent too. In cross-examination, he once again reiterated that the driver of the harvester/combine was negligent and he had not taken proper care before he reversed the combine. Therefore, it is writ large on the file that the accident occurred on account of the negligence on the part of Bhupinder Singh in driving the combine as despite the overhead wires hanging loosely, he went on to drive the combine as a result of which the combine came in contact with the overhead electricity wires which resulted into sparking, which spark further resulted in the combine getting burnt and consequently the crops belonging to the claimants getting destroyed on account of the fire. FAO No. 520 of 1998 -10- According to RW2 Tara Chand, Junior Engineer, the height of the wires was 16½/17 feet from the ground level and the accident, if any, occurred on account of the fire breaking out due to fault in the combine. This was not the case of any of the claimants on the one hand and driver and registered owners of the combine on the other. Moreover, said Tara Chand was not present at the spot and, therefore, his version cannot be accepted especially in preference to the ocular account given by PW1 Amarjit Singh and PW2 Nishabar Singh. A duty was cast on the Board to ensure that the overhead electricity wires were at a sufficient height from the ground level so as to avoid coming in contact with the machinery and instruments ordinarily used by the agriculturists while carrying out agricultural operations. Regular inspections of overhead electricity wires were also required on the part of the Board to ensure that those wires did not become loose especially during the summer months when on account of high temperature and strong winds, there was every likelihood of the overhead wires becoming loose and there were chances of the machinery/implements coming in contact with those wires. Therefore, the learned Tribunal was justified in holding that the Board was negligent to the extent of 25% whereas the negligence of the driver of the harvester/combine was 75%. According to PW9 Sultan Singh, Patwari, he had assessed the loss occurring to the claimants on account of the fire as Rs.4,00,000/- whereas per killa loss was Rs.6,275/-. The land holdings FAO No. 520 of 1998 -11- of the claimants were depicted in the jamabandies, which have been brought on record as Exs.PX/1 to 13 whereas the assessment of loss to the tune of Rs.4,00,000/- stood reflected in the roznamcha wakiati Ex.PX/15 prepared by the village Chowkidar. The said material had been made the basis by the learned Tribunal to award the various amounts of compensation to the land owners. Therefore, it cannot be said that the land owners were coming up with inflated claims or that the amount assessed regarding loss of the crops was on the higher side. Though the harvester/combine stood insured with the United India Insurance Company Ltd., Karnal, as is clear from the insurance policy Ex.R1 yet no extra premium had been paid for enhanced third party property damages. Thus, the Insurance Company could be saddled with liability to the extent of Rs.6,000/- only in each case whereas for the remaining amount, if any, the liability has to be that of the driver and the registered owners of the harvester/combine, jointly and severally. In view of the above, there is no merit in the stand taken by the driver and registered owners of the harvester/combine as well as by the Board in any of the appeals and the revisions. Resultantly, F.A.O. Nos. 520 to 528 and 1295 to 1299 of 1998 and Civil Revision Nos. 1627 to 1629 and 1827 to 1833 of 1998 are dismissed. FAO No. 520 of 1998 -12- ( T.P.S. MANN ) August 25, 2009 JUDGE ajay-1