FAO No.3379 of 2001 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3379 of 2001 Date of Decision.16.12.2010 Raksha Devi widow of Sh. Kapil Dev and others ......Appellants Versus Bahadur Singh and another ......Respondents Present: MR. Chetan Dayal, Advocate for the appellants. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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 claim for compensation in a case where the Tribunal had awarded Rs.50,000/- on no fault basis on the ground that the accident had taken place not due to any negligence on the part of the driver but on account of the fact that there was mechanical defect which resulted in the vehicle going out of control and dashed against a tree. The complaint had been given by the driver himself on the basis of which there had been a DDR entry made and further criminal prosecution was taken having regard to the special circumstances indicated in the complaint. This was taken by the Tribunal as totally rendering exculpatory the Transport Corporation. It is against this award that the claimants have come on FAO No.3379 of 2001 -2- appeal. 2. The Tribunal was wholly in error in assuming that if there was no negligence on the part of the driver, the owner also will stand completely excluded from any blame. There is no evidence placed by the Corporation to show that the vehicle had been kept in a state of repair and there was a latent defect which was not possible to identify in spite of best care. The burden of proof in such circumstances shall always be on the owner to explain that the vehicle was properly maintained and that in spite of best care, the accident had taken place. Even the maintenance log sheet relating to the bus had not been placed before the Tribunal. Of what may not have been an act of negligence of a driver could still be taken to be the act of negligence of the owner himself that will render a claim perfectly tenable against the Corporation which is the owner of the vehicle. The award of compensation ought to have been, therefore, on a just compensation basis on the parameters laid down under Sections 165 to 168 of the Motor Vehicles Act and could not have been merely on the basis of no fault. The fault did exist in this case that the vehicle had not been properly maintained by the Corporation. 3. Before the Tribunal, the evidence was placed that the Conductor was earning Rs.9,200/-, which included the over time charges as well. The income itself was Rs.8,000/- with all usual allowances. He was aged 36 years and I would provide for a 50% increase as a prospect definitely possible in the case of his employment under the Transport Corporation and take the average income at Rs.12,000/-. I would provide for a 1/3rd deduction for FAO No.3379 of 2001 -3- personal expenses for he was supporting a family of widow and two minor children and take the extent of dependence per year at Rs.96000/-. I will adopt a multiplier of 15 as suggested in the decision of the Hon'ble Supreme Court in Sarla Verma Vs. DTC 2009(6) SCC 121 and take the loss of dependence at Rs.14,40,000/-. There was evidence to the effect that the body had to be transported from the hospital to his village and the claimants had spent about Rs.15,000/- for the same. I will provide for transportation and funeral expenses at Rs.15,000/- and provide for an additional sum of Rs.5,000/- towards loss to estate and provide for another amount of Rs.5,000/- for loss of consortium to the wife and Rs.2500/- to each one of the children for loss of love and affection. In sum, the total amount that will become payable would be Rs.14,70,000/-. The amount in excess over what has been awarded by the Tribunal shall bear interest @6% from the date of the petition till the date of payment. The liability shall be on the Transport Corporation and the amount shall be distributed amongst the claimants equally. Since the accident had taken place in the year 1999 and since I am examining the case after 11 years in a case where I have adopted as multiplier of 15, I will direct the 75% of the amount that is due to the 1st claimant shall be permitted to be withdrawn and the remaining 25% shall be kept in a deposit in a Nationalized Bank split into five shares, the first share for one year, second share for second year and so on upto five years and then shall be paid on the respective dates of maturity. As regards the share of the minor children, the amount shall be retained in deposit with nationalized bank till the date of their majority and shall be permitted FAO No.3379 of 2001 -4- to be withdrawn upto 75% and 25% shall be deposited in a Nationalized Bank for a future period of five years and distributed in the same manner as indicated in the claim of 1st claimant. 4. The appeal shall be allowed to the above extent. (K. KANNAN) JUDGE December 16, 2010 Pankaj*