FAO No.2159 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2159 of 2002 Date of decision 19.12.2008 Vijay Pal and others .....Appellants versus Mukesh alias Khoda and others .....Respondents Coram:- Hon'ble Mr. Justice K. Kannan. Present: Mr.S. P.Chahar, Advocate for the appellants. Mr. N. K. Khosla, Advocate, for the respondents. K. Kannan, J. 1. The claim of compensation by the petitioners for the death of their son in a motor accident aged 20 years on the intervening night of 17/18.7.2000, resulted in dismissal for want of proof of negligence of the ill fated jeep in which the deceased was travelling. 2. The accident had a poignant background that on 17.7.2000 the deceased and another person by name Sandeep accompanied by a host of others belonging to the same family were proceeding from Kherman to go to Girewar, on hearing the death of a lady by name Anita. The Jeep was being driven by the first respondent and it was owned by the second-respondent. As narrated in the FIR, at the thick of the night, a truck was going ahead of the jeep but the first respondent was driving the vehicle rashly and negligently and struck against the truck. The deceased had been immediately taken to the hospital at the PGI MS, Rohtak, where he was declared dead. The fellow passenger had given the complaint with the police, which had been registered in FIR No.198 dated 18.7.2000 at the police station at Sampla. The petitioners' contention was that the deceased FAO No.2159 of 2002 -2- was earning Rs.4000/- as a peon in J. R. Kishan Technical Institute, Asthal Boghar, Rohtak. He was the only bread-winner of the family. As parents dependent on the earning of their son, the petitioners' claimed that they were entitled to be compensated. The second respondent as the owner of the vehicle and the third respondent as the insurer of the jeep in which the deceased was traveling were jointly and severely liable. 3. The third respondent had entered contest denying the accident and further denying that the petitioners were entitled to any compensation. The defence found favour with the Tribunal, which delivered a verdict dismissing the petitioners' claim. The Tribunal had found that the petitioners had merely filed the FIR but did not adduce any proof by calling any witness either of the informant in the FIR or any fellow passenger in the jeep. The Tribunal for the sake of comprehensive adjudication on all issues stated, that the driver namely the first respondent had held a valid driving licence. As regards the income, the Tribunal found that the salary certificate produced before the Tribunal did not appear to be true that he could have earned Rs.4000/- per month and the appointment letter was also a fabricated one. The Tribunal observed that the petitioners had misused the process of the Court by deliberately referring to the involvement of jeep, so that the compensation could be claimed by hook or crook with the seal of Court. 4. The counsel for the appellants assails the reasoning of the Tribunal that the vehicle had not been involved in the accident at all and that the case was a fabrication. The non-examination of the complainant found in FIR was explained by the petitioner by pointing out that the complainant was a close relative of the owner of the vehicle and he could not therefore, secure his evidence in the Court. The petitioners' contention FAO No.2159 of 2002 -3- was that in summary proceedings such as a claim for compensation before the Tribunal, strict rules of evidence should not be taken and the recitals in the FIR must be taken as establishing the vital facts, unless there was a strong reason to suspect its genuineness. The counsel for the appellant pointed out to the evidence of RW-I, the driver of the vehicle HR- 26H/4266, who spoke to the fact that his cousin Anita had died in a road accident and was admitted in PGIMS Rohtak where she had expired. Her husband had called Anita's brother Sandeep, who took Vikas, the deceased, to go to the hospital with him. The deceased had immediately called the family members of Anita and the accident had taken place only at the time where they were going towards the hospital. This portion of evidence of RW-I corresponds with the facts stated in the FIR. The driver had also spoken to the fact that the truck was going ahead of him and when it suddenly stopped the jeep struck the truck at its rear side. This portion of evidence also confirms clearly the involvement of the jeep in collision with yet another motor vehicle. An accident could not have resulted, if the driver had applied caution in his driving. No where in the cross-examination of RW-I it had been suggested that the accident itself did not take place or that the vehicle had not been involved in the accident. It was on the other hand suggested to RW-I, that he had collected fares from the passengers. Perhaps the attempt was to show that the petitioners' son was traveling in a vehicle which had been used as a taxi and hence without a valid insurance cover for a vehicle that qualified for the definition of 'Transport Vehicle' under the Motor Vehicles Act, the petitioner could not lawfully pursue the claim against the Insurance Company. 5. The Tribunal, if it had properly appraised the contention of the FAO No.2159 of 2002 -4- FIR and noted the quality of evidence of RW-I, it could not have arrived at conclusion that there was no proof that the jeep had been involved in accident. The vehicle number is clearly spoken by RW-I. The statement of a fellow passenger FIR itself had been registered by taking immediately at the hospital where he had been admitted. The non-examination of the complainant is also not very material and the reasons given by the petitioner could also seen to be true, having regard to the fact that the persons traveling in the jeep were all relatives to the owner of the vehicle themselves and they were proceeding towards the hospital to see yet another relative Anita who had died sometime earlier in another motor accident. Under the circumstances, I am clearly of the view that the Tribunal had failed to properly appreciate the circumstances under which the accident had been shown to have been taken place and how in the given situation there could be no doubt about the involvement of the vehicle or the death of the person as due to the motor accident. Even the postmortem certificate which had been filed in the Court reveals that the deceased had been admitted on 18.7.2000 and the doctor entered the particulars that the patient had died due to serious injuries and hemorrhage. Therefore, I set aside the finding of the Court below that the petitioners had not established the rash and negligent driving of the first respondent. It is to be noted that the aspect of proof of negligence itself has undergone a sea-change with the normative acceptance of strict liability for accident of claims arising out of motor accident. The Supreme Court has laid down in Kaushnuma Begum versus New India Insurance Company, (2001)2 SCC 9, that need not be any strict proof of negligence and more so, in the statutory recognition of strict liability by introduction of Section 163A of the Motor Vehicle Act. I, FAO No.2159 of 2002 -5- therefore, find that the first respondent had caused the accident in a rash and negligent manner and the second respondent as the owner of the vehicle was liable to compensate the petitioner. 6. As regards quantum, it is seen that the petitioner had stated that the deceased was working as a peon in a Technical Institute near Rohtak and a salary certificate has also been produced. The Trial Court had rejected the evidentiary value of the document by saying that peon could not have earned Rs.4000/- and that the salary certificate and order of appointment must be fabricated. Even if the Tribunal found that the genuineness of the salary certificate had not been properly established, it could not be said that the deceased person did not be earn any amount. I am unable to fathom as to why the Tribunal took such a serious view of the matter that the case itself must have been fabricated. The Tribunal had allowed itself to be coloured by a perception that since FIR had not been proved by examining the person who gave the complaint, the death itself had not been due to the accident. Its finding relating to the accident had a cascading effect and it went as far as to say that the deceased could not have earned any income. The findings even as regards the income by the Tribunal is also bound to be interfered with. 7. While it is possible to reconstruct the truth of the accident by a chain of events namely the registration of the complaint on 18.7.2000, the entries in postmortem certificate referring to the death of person as could be due to the injuries in an accident, the evidence of the driver of the vehicle involved in the accident referring to the names of the passengers that included the deceased as well as the name of the informant, as traveling in the jeep to the hospital at the thick of the night to see a patient who had died FAO No.2159 of 2002 -6- in yet another motor accident, the fact that there was no suggestion that the jeep had not been involved in the accident, etc. all conjointly establish that the finding of the Tribunal that the vehicle had not been involved in the accident that the petitioners' son did not die in the accident is clearly perverse. However, the genuineness of the salary certificate cannot be taken up by such inference. In the absence of evidence of a person who had issued the certificate, the credibility of the official records like FIR, Postmortem certificate and the evidence of the driver that would go to establish the facts of the accident and the cause of death are not unfortunately available, as regards, the genuineness of the salary certificate itself. Normally, I would have thought it necessary to remit the matter to the Court below to offer the petitioners a fresh opportunity to give evidence about the income particulars of their son. But having regard to the fact that nearly 8 years have passed and the petitioners are fighting for justice for the loss of their son, I take a notional income of Rs.1500/- per month as the income of the deceased. The deceased was 20 years of age and the claimants who were his parents have stated that they had lost the only bread-winner in the family. I deduct one-third as going towards the personal consumption and by applying the yard-stick as provided under Schedule-2 of the M.V. Act, I take the contribution to the family as Rs.12,000/-. I invoke the formula as set down under Schedule-2 and by taking the age of the deceased to be 20 years and adopting a multiplier of 17, determine Rs.2,04,000/- as the amount payable. To the same shall be added the funeral expenses of Rs.2000/-, Rs.2500 towards lost of estate and Rs.2500/- towards transportation and Rs.5000/- towards loss of love and affection of their son and in all, the amount that shall become payable will FAO No.2159 of 2002 -7- be Rs.2,16,000/-. 8. The liability for compensation shall be borne by the third- respondent Insurance Company, having regard to the fact that the vehicle had been comprehensively insured and the petitioner was entitled to secure the claim against the insurer of the second respondent vehicle. 9. In the circumstances the judgement of the Tribunal is set aside and there shall be an award in favour of the petitioner for Rs.2,16,000/- with interest @ 7.5 % from the date of the accident till the date of payment. ( K. KANNAN ) 19.12.2008 JUDGE A. KAUNDAL