IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 217 of 2005 with Cross Objection No.360 of 2005. Judgement reserved on: 23.3.2009. Date of decision: March 26, 2009. Parvesh Kumar & anr. ….. Appellants. Vs. Kukki Devi & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. Romesh Verma, Advocate, for respondents No.1 & 2. Mr. Ashwani Sharma, Advocte, for respondent No. 3. Kuldip Singh, Judge. This judgement shall dispose of FAO No. 217 of 2005 alongwith Cross Objection No. 360 of 2005, arising out of award dated 19.2.2005, passed by learned Motor Accident Claims Tribunal (II), Solan camp at Nalagarh in MAC Petition No. 30-NL/2 of 2002, awarding Rs.1,60,000/- to respondent No. 1 and Rs.42,000/- to respondent No.2, total Rs.2,02,000/- (wrongly typed Rs.2,02,2000/- in relief part of the award) alongwith 9% interest per annum from the date of filing the petition till realization, after adjustment of interim Whether the reporters of the local papers may be allowed to see the Judgment? …2… compensation amount, if any. The appeal has been filed for setting – aside the impugned award and the cross objections have been filed by respondents No. 1 and 2 for enhancement of compensation. 2. The brief facts of the case are that respondents No.1 & 2 parents of Sanjeev Kumar filed claim petition, under Section 166 of Motor Vehicles Act, 1988 against the appellants and respondent No. 3 claiming Rs.10,00,000/- compensation on the ground that their son Sanjeev Kumar was knocked down by scooter CHP 1256 on 4.1.2002 at about 8.45 p.m., when he was walking on the left side of Baddi-Pinjore road near old truck union in front of Dhaba of Parvesh Kumar. The scooter was being driven by the appellant No. 2 rashly and negligently. Sanjeev Kumar suffered multiple and grievous injuries in the accident and he died on 7.1.2002 at P.G.I., Chandigarh. FIR No. 4 of 2002 was got registered at Police Station, Barotiwala on 5.1.2002. Sanjeev Kumar was 18 years of age and was working as cleaner on the truck of Jasbir Singh and earning Rs.3000/- salary per month and Rs.50/- per day daily allowance alongwith uniform. The scooter was owned by appellant No. 1 and was insured with respondent No. 3. The respondents No. 1 & 2 had incurred Rs.30,000/- on the treatment of the deceased. The respondent No. 4 Ranjit Singh was impleaded in the petition later on. 3. The appellant No.1 contested the petition by filing reply and took preliminary objections of maintainability, necessary parties, and lack of cause of action. He denied that appellant No. 2 was driving the scooter HP-12-1256 at the time of accident. He has pleaded that respondent No. 4 Ranjit Singh was driving the scooter at …3… the relevant time. He denied the claim and has submitted that amount of compensation claimed is otherwise excessive. The deceased was unemployed. The expenses allegedly incurred on the treatment of the deceased were also denied. The respondent No. 3 had also contested the petition and pleaded that scooter was not covered under the insurance policy of respondent No. 3 at the time of accident. It has been pleaded that the drivers of the vehicle were not having valid and effective driving licence. The respondent No. 4 has been collusively impleaded as driver in the petition. The scooter was being driven in breach of standard policy conditions, and, therefore, respondent No. 3 is not liable to pay any compensation. In the reply, respondent No. 3 sought permission to take all defences to contest the petition. The respondents No. 1 and 2 have not filed the petition with clean hands and they have no locus-standi to file the petition. The respondent No. 3 denied the claim of respondents No. 1 and 2. The respondent No. 4 also filed reply and took preliminary objections of maintainability and lack of cause of action. On merits, he denied the income of the deceased. He took the stand that he was driving the scooter, the deceased was walking on the side of the road, he was hit by a stone and fell on the road side ahead of the scooter on account of his negligence and suffered injuries due to fall on the road. He denied rest of the claim of respondents No. 1 and 2. The learned Tribunal had framed the following issues:- 1. Whether on 4.1.2002 at about 8.45 P.M. on Baddi-Pinjore Road near old truck union in front of the Dhaba of Sh. Parvesh Kumar, Baddi Teh. Nalagarh,Distt. Solan, Sanjeev Kumar son of petitioners No. 1 and 2 while going on foot being a pedestrian was crushed and died due to …4… the rash and negligent riding of scooter rider, respondent No. 2, Jaswinder Singh as alleged? OPP. 2. If issue No. 1 is proved, to what amount of compensation, the petitioners are entitled to and from whom? OPP. 3. Whether the petition is not maintainable as alleged OPR- 1&2. 4. Whether the petition is bad for mis-joinder of necessary parties as alleged? OPR- 1&2. 5. Whether the scooter rider did not have a valid and effective driving licence at the time of the accident as alleged? OPR-3. 6. Whether the offending scooter was being driven in violation of the provisions of M.V. Act and also in breach of the terms and conditions of the standard policy conditions as alleged? OPR-3. 7. Whether Sh. Ranjit Singh was driving the scooter No. CHP-1256 rashly and negligently on the day of accident? OPR 1&2. 8. Whether the respondent No. 4 did not have a valid and effective driving licence at the time of accident? OPR-3. 9. Relief. Issues No. 1, 5 were answered in affirmative, issues No. 3, 4, 6, 7 and 8 in negative and under issue No. 2, an award of Rs.2,02,000/- was passed in favour of respondents No. 1 and 2, as noticed above, hence this appeal. 4. I have heard Mr. Ramakant Sharma, learned counsel for the appellants, Mr. Romesh Verma, learned counsel for respondents No. 1, 2 / cross –objectors, and Mr. Ashwani Sharma, learned counsel for respondent No. 3 and have also gone through the record. It has been submitted on behalf of the appellants that learned Tribunal has erred in allowing the petition. The scooter driver was not negligent, the amount of compensation awarded is on the higher side. …5… The learned counsel for respondents No. 1 and 2 has submitted that compensation awarded to respondents No. 1, 2 is on the lower side and submitted for enhancement of compensation. The learned counsel for respondent No. 3 has supported the impugned award. 5. PW 1 Durga Dutt has stated that his son Sanjeev Kumar was knocked down on 4.1.2002 by scooter No. CHP 1256, which was being driven by Jaswinder Singh. Sanjeev Kumar was walking on the side of the road. He was taken to P.G.I., Chandigarh in an injured condition and died on 7.1.2002. The accident took place due to the negligence of the scooter driver. The deceased was working as cleaner and earning Rs.3000/- per month plus Rs.50/- daily allowance for expenses. PW 2 Ranjodh Singh has stated that on 4.1.2002, Sanju was hit from back side by the scooter, which was being driven by Jaswinder Singh alias Shami. Sanju was taken to P.G.I. in an injured condition. The accident took place due to the negligence of the scooter driver. PW 3 Sewa Singh HC has proved FIR Ex. PW 3/A registered under Section 279, 337 IPC on 8.1.2002. He conducted the investigation in the aforesaid case and found Jaswinder Singh alias Shami negligent, who was driving the scooter. 6. RW 1 Jaswinder Singh in his examination-in-chief in the form of an affidavit tendered in evidence has stated that he was sitting on scooter CHP 1256 on pillion behind Ranjit Singh. He admitted in his cross examination that case was registered against him under Sections 279, 337, 201, 304-A IPC read with Sections 120-A, 177, 181 of Motor Vehicles Act. RW 2 Parvesh Kumar in his examination-in-chief in the form of an affidavit tendered in evidence …6… has stated that he is the owner of scooter No. CHP 1256 which was insured with National Insurance Company. Ranjit Singh told him that Jaswinder Singh was pillion rider on the scooter, which met with an accident on 4.1.2002. In cross-examination, he has admitted that Jaswinder Singh was prosecuted for the accident. RW 3 Ranjit Singh in his examination-in-chief in the form of an affidavit tendered in evidence has stated that scooter No. CHP 1256 on 4.1.2002 was returning from Baddi to Pinjore. On the way near Baddi barrier, a man was going and that man met with an accident with some vehicle. He and Jaswinder Singh took that man to Chandigarh. The accident did not take place with the scooter. He produced photo copy of his driving licence Ex. RW 3/A. In cross-examination, he has stated that he had disclosed about the accident to Parvesh Kumar next day. The scooter owner Parvesh Kumar told him to become party in the case. RW 4 Arun Kumar has proved policy Ex. RW 4/A and its terms and conditions are Ex. RW 4/B and investigation report Ex. RW 4/C. 7. Ex. PW 3/A is FIR recorded at Police Station, Barotiwala, which was recorded at the instance of Parvesh Kumar. In the FIR, it has been clearly stated that Sanju was knocked down by scooter which was being driven by Shami son of Bagga Ram and Sanju sustained injuries and became unconscious. Ex. PA is the notice of accusation which was put to Jaswinder Singh, under Sections 279, 304-A IPC and Sections 181, 187, 177 of the Motor Vehicles Act regarding the accident dated 4.1.2002. It is thus clear that Sanjiv Kumar died in the accident involving scooter CHP 1256 owned by appellant No.1. It has also come on record that Sanjeev …7… Kumar was walking on the side of the road when scooter hit him and he sustained injuries. The appellants have taken the stand that appellant No. 2 was not driving the scooter at the time of accident, it was respondent No. 4 who was driving the scooter. The cumulative effect of the above discussed evidence is that the accident took place due to rash and negligent driving of the person, who was driving the scooter at the time of accident. Who was driving the scooter at that time will be considered later on in the judgement. The learned Tribunal has rightly held that accident took place due to rash and negligent driving of the person, who was driving the scooter at the time of accident. 8. The next question is whether appellant No. 2 or respondent No. 4 was driving the scooter at the time of accident. In the earliest version in FIR Ex. PW 3/A appellant No. 1 Parvesh Kumar owner of the scooter had disclosed to the police that Shami, who is none-else but appellant No. 2, was driving the scooter at the time of accident. Later on, appellant No. 1 Parvesh Kumar took the stand that respondent No. 4 Ranjit Singh was driving the scooter at the time of accident and not appellant No. 2 Jaswinder Singh. RW 3 Ranjit Singh in evidence by way of an affidavit has disclosed a different story. He has stated that on 4.1.2002, he was returning from Baddi from Pinjore on scooter No. CHP 1256, a person near Baddi barrier was walking on the side of the road, who met with an accident. He has not stated that accident took place with scooter No. CHP 1256. He has also stated that he had disclosed about the accident to Parvesh Kumar next day. The FIR was registered on …8… 5.1.2002 by Parvesh Kumar naming Shami, who was driving the scooter at the time of accident. PW 3 Sewa Singh HC had conducted the investigation of the case in FIR Ex. PW 3/A and found that Jaswinder Singh was driving the scooter at the time of accident. On 14.6.2004, appellants had stated before the learned Tribunal that appellant No. 2 was not having a driving licence to drive the scooter. Parvesh Kumar filed an application dated 16.8.2004 for impleading Ranjit Singh as respondent in the petition. The appellant No. 2 was impleaded as respondent No. 4 in the petition by learned Tribunal, vide order dated 19.8.2004. The appellant No. 2 was not having a driving licence to drive the scooter, therefore, appellants took an afterthought plea that respondent No. 4 Ranjit Singh was driving the scooter at the relevant time. It is thus clear that Jaswinder Singh alias Shami was driving the scooter at the time of accident. No fault can be found with the finding of learned Tribunal that accident was caused due to rash and negligent driving of scooter by Jaswinder Singh. 9. The learned Tribunal has assessed the income of the deceased at Rs.2000/- per month and dependency of respondents No. 1, 2 at Rs.16,000/- per annum, which in the facts and circumstances of the case, is not on the higher side. The deceased was 18 years of age, whereas respondent No. 1 was 42 years and respondent No. 2 was 45 years of age at the time of accident and death of their son Sanjeev Kumar. In these circumstances, it cannot be said that multiplier of 12 applied by the learned Tribunal for assessing the compensation is on the higher side. The learned …9… Tribunal on the basis of material on record has rightly assessed Rs.1,92,000/- compensation in addition to Rs.10,000/- conventional amount, total Rs.2,02,000/- compensation on account of death of Sanjeev Kumar. 10. The appellant No. 2 was not having a driving licence to drive the scooter at the relevant time. The accident took place due to the negligence of appellant No. 2 which caused the death of Sanjeev Kumar. The appellant No. 1 was the owner of the scooter at the relevant time, therefore, the learned Tribunal under issue No. 1 has rightly held appellants No. 1 and 2 liable to pay the award amount, which is to be paid initially by respondent No. 3- insurer with liberty to recover the same from appellants No. 1 and 2. The respondent No. 3 has accepted the impugned award. The learned counsel for the appellants has failed to make out a case for interference on any ground. 11. The learned counsel for respondents No. 1 and 2 in support of cross-objections has submitted that amount awarded to respondents No. 1 and 2 by learned Tribunal is on the lower side. There is no concrete evidence on record in support of the income of the deceased that he was drawing Rs.3000/- per month in addition to Rs.50/- daily allowance. The employer of the deceased has not been examined. The learned Tribunal, in these circumstances, has committed no error in assessing the income of deceased at Rs.2,000/- per month and on that basis awarding Rs.2,02,000/- to respondents No. 1 and 2, as discussed above. The respondents No. 1 and 2 have failed to make out any case for enhancement of …10… compensation in presence of evidence, which has come on record. There is no merit in the cross-objections. 12. No other point was urged. 13. The result of the above discussion, the appeal as well as cross-objections are dismissed, with no order as to costs. March 26, 2009. ( Kuldip Singh ), (Hem) Judge.