In the High Court for the States of Punjab and Haryana, at Chandigarh. FAO No. 376 of 1989 Decided on February 27,2008. Smt.Luxmi Devi and others -- Appellants/claimants vs. State of Punjab and others --Respondents. Present: Mr.G.S.Punia, Advocate,for the appellants/claimants. Mr.B.S.Chahal, D.A.G, Punjab, for respondent Nos.1 and 2. Rakesh Kumar Jain, The appellants/claimants have come up in this appeal against the Award dated October 05,1988, passed by the Motor Accident Claims Tribunal, Ludhiana (hereinafter referred to as 'the Tribunal'), whereby the claimants were held not entitled to any compensation on account of negligence on the part of the bus driver. However, they were held entitled to compensation of Rs.15,000/- on account of 'no fault liability' under Section 92-A of the Act, as the respondents have admitted the accident, in which Ram Rattan, since deceased received injuries and died. It was further held that the claimants have already received Rs.15,000/- on the basis of ' no fault liability' vide order of the Tribunal dated September 28,1987. It was also held that if the aforesaid amount is not recovered earlier, then it shall be recovered by the claimants FAO No. 376 of 1989 -2- No.1 to 4 from the respondents, who were made liable to pay the same jointly and severally and in case, the said amount is recovered by the claimants from respondent Nos. 1 and 2 then they were further held entitled to recover the same from respondent No.3, who had admitted the accident having taken place due to his negligence. Briefly stated, the facts as pleaded by the claimants in the claim petition are that on December 16,1986,at about 10.a.m., the deceased Ram Rattan along-with his son Sudhir Kumar, was coming towards Khanna after visiting village Mohanpur on their respective vehicles Hero Majestic Moped bearing registration No. PAN-4912 and Scooter bearing registration No. PJN -2155, respectively. After entering G.T.road, the deceased was going on the extreme left side of the road while Sudhir Kumar was behind him. He had stopped on the way to meet a customer, when all of a sudden a bus belonging to Punjab Roadways bearing registration No. PJG-1630 of Ferozepur Depot, being driven by its driver- respondent No.3- Gurbax Singh,rashly and negligently wanted to overtake the deceased from the wrong side, who was going on the correct side, hit him from behind. Consequently, right front wheel of the bus ranover the moped, due to which, Ram Rattan succumbed to his injuries at the spot and died. A sum of Rs.10,00,000/- was claimed by claimant Nos.1 to 4 on account of the death of said Ram Rattan being wholly dependant on him. It was further case of the claimant that the deceased was 55 years of age at the time of the accident and was doing business of Cloth Merchants as a partner in the firm M/S Ram Sarup Ram Rattan at G. T. Road, Khanna and in M/S Rattan Sons Khanna in which FAO No. 376 of 1989 -3- he had 25% share and 10% shares respectively. Respondent Nos. 1 to 3 filed their separate written statements. Respondent Nos. 1 and 2 admitted the accident but attributed the negligence to the deceased. It was alleged that the deceased who was riding moped No. PAN-4912, came from village lane and entered the G.T.Road without caring to see if the road ahead was clear of the traffic and he suddenly came in front of the bus, which was going on its correct side at a normal speed, the bus driver tried his level best to avoid the accident but could not do so. Repondent No.3, driver of the bus, in his written statement dated July 27,1987 narrated the version of accident stating that the accident had taken placed solely due to the rash and negligent driving of the deceased, who while entering the main road from the lane did not care to see if the road ahead was clear of any coming traffic. He suddenly came in front of the bus which was going on its correct side and at a normal speed. However, on August 21,1987, respondent No.3, driver of the bus, filed an application before the Tribunal for amendment of his written statement, which was accepted by the Tribunal vide its order dated September 02,1987. In the amended written statement dated September 15,1987,the driver of the offending bus admitted the negligence. Para No.8 of the amended written statement reads thus:- “ In reply to para No.8, of the petition, it is submitted that the accident took place on 16.12.1986 at about 10.00.A.M and the deceased was on a Moped Hero Magestic. The accident took place after crossng T. Junction where the road coming from Village Mohanpur enters the FAO No. 376 of 1989 -4- G.T.Road. The respondent was a bit late to reach Khanna and to cover up the late he wanted to over take the deceased who was going on his Moped. As there was rush and no space was available on the right side of the deceased, the respondent in good faith took the vehicle Bus No. PJG- 1630 from the let side of the deceased. As a result of this the accident took place. Inspite of best efforts of the respondent, the right hand front wheel struck with the deceased driving moped, consequent thereof the deceased died on the spot”. On the pleading of the parties, following issues were framed:- 1. Whether the accident took pace on account of the rash and negligent driving of Gurbax Singh, driver, respondent No.3 and the deceased Ram Rattan received injuries in that accident and died on account of those injuries ? O P Claimants. 2. If issue No.1, is proved, to what amount of compensation, the claimants are entitled and from whom ? O P Claimants. 3. Relief: The claimants/appellants examined Dr. A.K.Batta, Medical Officer, Civil Hospital, Khanna, as AW-1, who had conducted the post mortem on the dead body of the deceased and opined that the injuries are possible in a road side accident. Krishan Kumar-claimant appeared as FAO No. 376 of 1989 -5- AW-2 and deposed about the income of the deceased. Sudhir Kumar claimant No.7 appeared as AW-3, who had deposed not only about the income of the deceased, but also about the manner of accident, it was stated by him that he was present on the spot when the accident took place. Shanker Lal appeared as AW-4, who is the Accountant of M/S Rattan Sons, Khanna, and produced the account books for the years 1985- 86 in respect of income of the firm,in which the deceased was a partner. As against that, respondents examined Gurbux Singh, driver of the offending vehicle as RW-1 , who had admitted in his cross examination that the deceased was on the left side of the road at the time of the accident. Speed of the bus was 50/60 k.m.per hour, he had taken the bus on the kacha portion at the time when the deceased was runover. He had denied the suggestion that the amended written statement was filed by him in collusion with the claimants and his first written statement was correct and also a suggestion that the accident had taken place on account of negligence of the deceased. On the basis of pleadings and evidence on record, the Tribunal decided Issue No.1 pertaining to negligence against the claimants firstly on the ground that presence of Sudhir Kumar at the time of accident near the place of accident is not proved because he had stated that he was talking to one Gurdial Singh, who has not been examined, therefore,an adverse inference has been drawn. Sudhir Kumar lodged the FIR Ex.PB without mentioning the name of Gurdial Singh who is not even mentioned in claim petition. The Tribunal further observed that even if it is assumed for the sake of arguments that Sudhir Kumar was FAO No. 376 of 1989 -6- present on Mohanpur link road as stated by him even then it is not expected of him to witness the accident as he has stated in his examination-in-chief that he was talking to Gurdial Singh at a point which is 50 yards from T Point, from where the link road bifurcates from the G.T.Road, meaning thereby that he was at a distance of 100 yards. The Tribunal held that no person can see the accident from such a distance, especially when he is busy in talking with some other person. It was also observed that the accident had taken place at 10..A.M.,but the FIR was lodged at 12.40.p.m. The news with regard to the accident must have spread in City of Khanna and family members of the deceased to know about it and then Sudhir Kumar lodged the F.I.R. pertaining to accident, otherwise, Sudhir Kumar would have lodged the report earlier. The Tribunal has further disbelieved the amended written statement filed by respondent No.3 on September 15,1987 and the admission made by him in his cross examination on the ground that the amended written statement has been filed under the influence of the claimants for some ulterior motive and in respect of his appearance in the Court, the Tribunal observed that in the examination-in-chief, he had tried to blame the deceased but in the cross examination, he stated that he took the bus on the kacha portion of the road and crushed the deceased. The Tribunal has further given another reason for deciding issue No.1 against the claimants that since deceased was coming from the link road, then it is the duty of the person coming from the link road to the main road to see if there is any traffic on his left or right side. It is observed that this rule does not seem to have been followed by FAO No. 376 of 1989 -7- the deceased,otherwise, he would not have entered the G.T.road before the bus had cross the 'T' point. It was also observed that since the accident took place on kacha portion of the road while going from the side of Ludhiana to Khanna, which means that the bus driver took the bus to his extreme left side and went to the kacha portion of the road, therefore, fault was found with the deceased and it was held that the accident took place on account of the negligence of the deceased and not of the bus driver. While deciding Issue No.2, The Tribunal has assessed the income of the deceased at Rs. 16648/- for the year 1985-86 ending 31.3.1986, on the basis of Exs.PC and PF on the file,but this was not taken to be loss to the claimants on the ground that Smt. Luxmi Devi claimant No.1 has stepped into the shoes of the deceased in both the firms as admitted by AW-3 Sudhir Kumar. Finally in respect of Issue No.3, since respondents were not found to be negligent, no compensation was ordered. However, a sum of Rs. 15,000/- was ordered as ' no fault liability' under Section 92-A of the Act. Dissatisfied with the order of the Tribunal, the claimants are in appeal before this Court. Mr.G.S.Punia, learned counsel for the appellants/claimants has vehemently argued that the findings on Issue Nos. 1 and 2 are both illegal and deserve to be set aside. Firstly, it was contended that findings recorded by the Tribunal on the point that Sudhir Kumar was not present at the spot because he had not mentioned the name of Gurdial Singh in the FIR FAO No. 376 of 1989 -8- and that he could not have witnessed the accident from a distance of 100 yards is erroneous. Mr.G.S.Punia, learned counsel for the appellants has argued that the First Information Report is only aimed at intimating the occurrence to the police which cannot and does not purport to be an encyclopaedia of the facts. Therefore,non-mentioning of the name of Gurdial Singh is not fatal to the case of the appellants as it was later on mentioned in the statement of the eye witness Sudhir Kumar. In this regard, counsel has relied upon two decision of this Court in the cases of Gurcharan Kaur and others v. Darshan Singh and others (2006-3) P.L.R. 329 and National insurance Co. Ltd. v. Bala Devi and others, 2006 (3) P.L.R. 134. He has further relied upon a decision in the case of Mahipalpur Co.op. Society Ltd v. Smt. Prabhati and others A.IR 1986 Delhi 94. Arguing further, it has been submitted by Mr.Punia, that the distance of 100 yards is not a long distance to witness an accident between a bus and a moped on a open road. It was also submitted that so far as the F.I.R. having been registered after 2 and ½ hours of the accident, which is considered by the Tribunal as an after-thought, is not correct, it was contended that since father of the witness (Sudhir Kumar) had died at the spot, his first reaction was to inform the family members and not to run to the police station for registration of the F.I.R. Therefore, the same was not unnatural. Learned counsel has further asserted that when respondent No. 3, driver of the offending bus has himself admitted in his written statement the manner in which the accident had taken place and also his negligence which was further corroborated by him when he FAO No. 376 of 1989 -9- appeared as RW-1 before the Tribunal, it become a case of admission in which no proof is required. He pointed out that respondent Nos. 1 and 2 have failed to allege as to what was ulterior motive on the part of respondent No.3, to have amended his written statement admitting his guilt before the Court. Mr.Punia has also referred to the photographs available on the record at pages 39 and 40 of the Lower Court record pertaining to the position of offending bus and the moped. In respect of other findings that it was for the deceased to have been careful when he entered from the link road to the G.T.road, learned counsel submitted that once the driver of the bus has admitted that he was getting late and in order to cover up his timings, he took the bus on the wrong side of the deceased and in that process, the accident took place, the question of giving such finding does not arise. It was further pointed out that even the Tribunal has observed while deciding issue No.3., that if the amount of Rs. 15,000/- granted under 'no fault liability' is recovered by the appellants from the employer, then the employer shall further be entitled to recover that amount from respondent No.3, driver of the bus, who has admitted his negligence. Continuing with his submissions, Mr. Punia has argued that even the compensation which has been assessed is on lower side and it has been wrongly held that once the wife has entered as a partner, then, the dependents of the deceased were not entitled to the amount of compensation as there was no loss in the income of the claimants. On the contrary, Mr. B. S. Chahal, learned Deputy Advocate FAO No. 376 of 1989 -10- General, appearing on behalf of the respondents-State has vehemently argued that the findings recorded by the Tribunal are just,proper and reasonable because name of Gurdial Singh was not mentioned in the FIR and the claim petition, therefore, it can be presumed that the story coined by Sudhir Kumar was false, whereas the amendment of the written statement admitting the negligence by respondent No.3, is due to some ulterior motive best known to him. Further, it was contended that there was no loss which can be compensated due to the death of the deceased because he has been replaced by his widow Smt.Luxmi Devi in the partnership firm. Therefore, it was submitted that the order of the Tribunal deserves to be upheld. I have heard learned counsel for both the parties and with their assistance have perused the record. While deciding issue No.1, much reliance has been placed by the Tribunal on the fact that author of the F.I.R.,Sudhir Kumar did not mention the name of Gurdial Singh with whom he was allegedly talking when the accident took place. Secondly, he was at a distance of 100 yards from the place of accident and could not have witnessed the same, if he was talking to said Gurdial Singh. Thirdly,Gurdial Singh was not mentioned in the claim petition and also that the FIR has been registered after 2 and ½ hours of the accident. So far as the FIR is concerned, it is now well settled that it is not an encyclopaedia of all the attending facts ,rather it is aimed at intimating an occurrence to the police. Therefore, there is nothing unnatural if the name of person with whom Sudhir Kumar is alleged to FAO No. 376 of 1989 -11- have been talking was not mentioned in the FIR. In the cases of Gurcharan Kaur and Bala Devi (Supra), which pertain to the claim filed under the Motor Vehicles Act, similar view has been taken, therefore, I hold that the non-mentioning of the name of said Gurdial Singh in the FIR by Sudhir Kumar could not be taken to be a reason for disbelieving the manner of accident. So far as the ocular version of accident is concerned, 100 yards on an open road is hardly any distance for the purpose of witnessing an accident, that too by a vehicle as big as bus. Besides these short-comings pointed out by the Tribunal, the statement of eye witness remained unshaken and negligence of respondent No.3 is proved especially in view of the fact that the driver of the offending bus himself had admitted the accident in the amended written statement as well as in his oral statement when he appeared before the Tribunal as RW-1. In the event of an admission of negligence by the driver of the offending vehicle, the same is proved because the driver himself took a risk of his being prosecuted in a criminal Court of law as the FIR was also registered against him. Therefore, no ulterior motive can be attached to his admission. Moreover, from the perusal of photographs at pages 39 and 40 of the lower Court record, where the bus is shown to be on kacha portion of the road and the moped is lying under it, this Court is convinced that the accident had taken place due to the rash and negligent driving of respondent No.3, the driver of the offending bus. Thus, issue No.1 is decided in favour of the appellants and against the respondents. FAO No. 376 of 1989 -12- Regarding issue No.2, although income of the deceased has been assessed vide documents Ex.PC and P-F to the tune of Rs.16648/-, but it has been wrongly held that no loss has been caused to the income of the claimant because widow of the deceased had entered as a partner in the firm in his place. This finding is not acceptable to this Court because the deceased was earning profits in the business not merely by his presence but by his business acumen and skill, which was definitely a loss to his family and could only be compensated in terms of money. Therefore, I hold that the appellants are entitled to compensation. Now the question that arises is as to how much compensation should be awarded to the appellants in the given circumstances of the case. Since the income of the deceased has already been assessed to the tune of Rs. 16648/-,out of which, if 1/3rd is deducted towards his personal expenses which comes to Rs. 5548/-, the remaining amount of Rs.11,100/- per annum is assessed as dependency of the deceased. As the deceased was admittedly 55 years of age at the time of accident, a multiplier of 8 is appropriately applicable as per schedule of the Motor Vehicle Act. Thus, the compensation amount comes to Rs. 88,000/- besides Rs. 2000/- as funeral expenses. Therefore, I hold that the appellants are entitled to a compensation of Rs. 90,000/- along-with interest @ 9% p.a. from the date of filing of the claim petition till its realization. It is, however, made clear that amount of Rs. 15,000/- awarded as 'no fault liability' shall be FAO No. 376 of 1989 -13- deducted from the total amount of compensation at the time of making the payment to the appellants. This appeal stands allowed in the terms as indicated above,but without there being any order as to costs. Februry 27,2008 (Rakesh Kumar Jain) RR Judge