IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2492 of 1995 (O&M) Date of decision:13.12.2010 Smt. Sumitra Wanti and another ....Appellants versus Murari Lal and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Ms. Manisha Setia, Advocate, for Mr. Ashit Malik, Advocate, for the appellants. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The appeal is for enhancement of compensation at the instance of the claimants for death of the husband of the first claimant. The Tribunal had awarded Rs.50,000/- on no fault basis and exonerated the Insurance Company on the ground that the surveyor of the Insurance Company had secured a letter from the licensing authority that the particular driving licence bearing No.F-7245 said to have been issued in the name of Murari Lal had not really been issued in his name. 2. The accident was spoken to by the son of the deceased, who was travelling along with him in a bicycle and his evidence was that the accident took place by the driver driving the vehicle at a very fast speed FAO No.2492 of 1995 (O&M) - 2 - and dashing against him. He had given evidence to the effect that they had stopped the vehicle and took the father to the hospital where he died. This evidence was challenged by the driver of the offending vehicle itself, who said that the accident took place when the deceased came suddenly from behind the truck without noticing the oncoming vehicle and got hit. He had also given evidence to the effect that he had himself taken the deceased to the hospital and had him admitted. The Tribunal found that there was a contradiction between the eyewitness-PW2's account and the evidence of the driver about the manner and the vehicle in which the deceased was transported. The Tribunal, therefore, found that the accident took place only on account of the negligent act of the deceased and the compensation could be awarded only on no fault basis. 3. I would accept the evidence as given by PW2 and hold that the driver of the car was alone responsible for the accident. It is no evidence for a driver to give that a cyclist committed a wrong in coming from behind a truck and, therefore, the accident took place. If the driver of the car had noticed cyclist emerging from behind the truck, all the more reason it was, that the driver had been careful to avoid a collision. I cannot find fault that the cyclist using the road when a motor driver is bound to exercise greater circumspection and care while driving the vehicle. I will, therefore, find the driver to be wholly responsible for the accident. 4. Even as regard the exoneration of the Insurance Company, the Tribunal was in error in merely relying on a letter said to have been received by the surveyor from the licensing authority. No evidence was FAO No.2492 of 1995 (O&M) - 3 - placed by the Insurance Company by summoning the original records or securing the attendance of any witness connected with the records. A letter of the licensing authority that was purported to have been issued to a surveyor cannot form a definite basis for finding that the licence was not genuine. I will hold that the Insurance Company had not discharged the burden of proof that the driver did not have a valid driving licence. 5. In the manner of ascertainment of compensation, I will take the income to be Rs.2,500/- as set out by the widow, provide for a 1/3rd deduction and apply a multiplier of 9. I will add Rs.5,000/- towards loss of consortium to the wife, Rs.2,500/- for loss of love and affection and Rs.2,000/- for funeral expenses. In all, the amount that would become payable would be Rs.1,71,500/-. The amount in excess over what has been awarded already by the Tribunal shall attract interest at 6% from the date of petition till date of payment. 6. The appeal is allowed to the above terms. (K.KANNAN) JUDGE 13.12.2010 sanjeev