FAO No.2820 of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2820 of 1999 DATE OF DECISION: April 6, 2011 BALWANT KAUR & ORS. ...APPELLANTS VERSUS AVTAR SINGH & ORS. ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? No 3. Whether the judgement should be reported in the digest? No ---- PRESENT: MR.P.S. JAMMU, ADVOCATE FOR THE APPELLANT. MS.SHAMSHER KAUR, ADVOCATE FOR THE RESPONDENTS. K.KANNAN, J.(ORAL) 1. The appeal is for enhancement of claim for compensation for death of a male aged 39 years. The claimants were widow, two major sons, and two minor children and the mother. At the time of accident, the deceased was said to have been travelling in the cabin of the truck of which he was the owner and driven by his brother. The vehicle capsized when the insured's vehicle coming from the opposite direction dashed against the rear tyre of the truck in which the deceased was travelling. The Tribunal found on the basis of evidence that brother of the deceased was driving the truck of which the deceased was the owner and had contributed to the accident and after determining the compensation of `2,74,000/- partially abated the claim at 50% and awarded `1,37,000/- as compensation payable to the claimants. 2. As regards the finding relating to contributory negligence, FAO No.2820 of 1999 -2- learned counsel for the appellants would state that it was not a case of head- on collision, but it was a case where the insured's vehicle struck against back side of the truck and due to the impact the rear axle of the truck had broken and rear tyres got disconnected. Resultantly, the truck turned turtle towards the left side of the road and Jaswant Singh fell on the road through the window and got crushed under the truck. This version was supported through the recital from the complaint made in the FIR. The driver of the truck which was driven by the brother of the deceased was also examined in this case. The Tribunal had observed that he denied the knowledge that the offending vehicle was coming on the correct side and he stated that only when the insured's vehicle came very near, he took a turn towards the left side to avoid the accident and there was heavy traffic near the place of the accident as it was the main road. The Tribunal observed that from the solitary statement of the driver of the truck in which the deceased was travelling it could not be inferred that the accident had been caused only by the negligence of the insured's driver. The Tribunal reasoned that if the truck in which the deceased was travelling, was going on the right side and the 1st respondent's vehicle had gone to the wrong side, would have hit on the front side or at least in the middle portion. There was every likelihood due to heavy rush on the road that the driver of the truck in which the deceased was travelling took a sudden turn and the respondent's vehicle which was coming on the opposite side could not have been able to control the truck hitting the same at the rear portion of the truck. The Tribunal also found that his brother Ajit Singh must have been added as a party in the case. 3. I will not go as far as to state that the case ought to fail for non- FAO No.2820 of 1999 -3- impleadment of the driver of the truck in which the deceased was travelling. As far as the deceased was concerned, it was a case of composite negligence and under the normal circumstances, there could not have been any abatement of claim. However, the situation would be slightly different where other person who had in some way contributed to the accident was his own employee driving the vehicle in which case his driver's negligence of the owner must be shared by the representatives of the deceased. The Tribunal was conscious of the fact that the vehicle had dashed at the rear axle of the truck in which the deceased was travelling. The evidence of driver Ajit Singh that he had not noticed the vehicle coming till at a time when he steered to left to avoid the collision definitely meant that he had come too close to the vehicle when in his attempt to avoid a head-on collision he had exposed the rear side of the vehicle for a collision from the vehicle coming from the opposite side. There must be some negligence on his part and I will not, however, place abatement as high as 50%. I will take that to be at 25% contribution for the accident and the abatement of claim which the Tribunal made at 50% is, therefore, liable to be reduced to 25% abatement. While the claim arising from a passenger or a representative of the passenger cannot be understood in the normal sense of contributory negligence, in this case since the negligence of his own driver has to be borne by the owner of the vehicle, namely, the deceased, I will, therefore, find that the claim must abate to the extent of negligence of the driver employed by the deceased. 4. In the manner of assessment of quantum of compensation, the Tribunal had taken the income to be `2000/- per month taking that to be a minimum that he would have earned if he had been an unskilled worker. It FAO No.2820 of 1999 -4- was in evidence that the deceased was himself the owner of the vehicle and, therefore, his income could not have been taken as that of an unskilled worker. His evidence was that he was engaged in the business of purchase and sale of tyres as well as in repair of tyres. He was supporting a large family consisting of his wife, four children and mother. I would, under the circumstances, not accept the income as stated by the deceased as high as `10,000/-, but I will take the income to be `4000/- per month. I will make a deduction of 1/4th and take the contribution to the family at `3000/- and apply a multiplier of 15 as taken by the Tribunal and hold the loss of dependency at 5,40,000/-. Adding the conventional heads of claim by providing of `5000/- as loss of consortium to the wife and `2500/- for the two minor children, `4000/- for funeral expenses and `2500/- for loss to estate, the total assessment of compensation will be `5,56,500/- making a 25% abatement of the claim for the negligence of the driver of the deceased, the amount of compensation which shall become payable will be `4,17,370/-. 5. The amount in excess over what has already been awarded by the Tribunal shall attract interest @ 6% from the date of petition till the date of payment. 6. The amount shall be distributed amongst the claimants in the same proportion as was determined by the Tribunal. 7. The award of the Tribunal is modified and the appeal is allowed to the above extent. April 6, 2011 (K.KANNAN) Gulati JUDGE FAO No.2820 of 1999 -5-