IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 4250 of 2007 Date of Decision : February 02, 2009 Lakhvinder Kaur and another .....Appellants Versus Hardev Singh and another .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. G.S. Saini, Advocate for the appellants. None for respondent No. 1. Mr. T.S. Gujral, Advocate for respondent No. 2. T.P.S. MANN, J. Petition filed by the appellants under Section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act') for the grant of compensation to the tune of Rs.8,00,000/- on account of death of their son Yadvinder Singh in a road side accident was dismissed by learned Motor Accidents Claims Tribunal, Kaithal on 23.7.2007. Aggrieved of the same, the present appeal has been field by the appellants under Section 173 of the Act. In their claim petition, the appellants had averred that on 19.1.2007 their son Yadvinder Singh, since deceased, while driving F.A.O. No. 4250 of 2007 -2- motorcycle bearing registration No. HR-08-F-9358 at a normal speed was coming from Chakoo Ladana towards his house at Umedpur Dera. He was driving the said motorcycle and one Bagicha Singh was pillion rider on the same. At about 5.30 P.M. when they reached near petrol pump Janetpur, suddenly a stone came under the tyre, as a result of which the motorcycle fell down and the deceased received serious injuries, including head injury, to which he later on succumbed. As the accident had taken place due to use of the motorcycle, therefore, the claimants, who were dependent upon their son, were entitled to the grant of compensation. The motorcycle bearing registration No. HR-08-F-9358 belonged to Hardev Singh and he was, accordingly, arrayed as respondent No.1 in the claim petition. The said motorcycle stood insured with the Oriental Insurance Company Limited-respondent No.2. In his written statement, the owner of the motorcycle stated that he had satisfied himself before giving his motorcycle to Yadvinder Singh that the latter could drive the same very well and he was also having a valid driving licence. The motorcycle stood insured with respondent No.2. However, he himself was not at fault for the accident which occurred on account of a stone coming under the tyre of the motorcycle. As such, he was not responsible to pay any compensation. The Insurance Company filed its written statement challenging the locus standi of the claimants to file the petition as the deceased was neither the driver nor having any valid and effective F.A.O. No. 4250 of 2007 -3- driving licence at the time of the alleged accident. Said petition had been filed in contravention of the provisions of the Act as well as of the insurance policy. The claim petition had been filed in collusion with respondent No.1 in order to extract illegal gain by way of compensation, as no accident had taken place with the involvement of the motorcycle. From the pleadings of the parties, learned Tribunal framed the following issues :- 1. Whether the accident resulting into the death of Yadvinder Singh son of Satnam Singh took place on 19.1.2007 at about 5.30 P.M. near petrol pump Janetpur due to involvement of motorcycle No. HR-08-F- 9358 which was being driven by the deceased ? OPP. 2. If issue No. 1 is proved, whether the claimants are entitled to claim compensation, if so to what amount and from whom ? OPP. 3. Whether deceased Yadvinder Singh was neither the driver nor holding valid and effective driving licence at the time of the alleged accident ? OPR.2. 4. Relief. F.A.O. No. 4250 of 2007 -4- In support of their case, the appellants had examined Bagicha Singh, eye-witness as PW2, besides Lakhvinder Kaur-claimant herself appeared as PW1. They also tendered in evidence affidavit Ex.P.1, DDRs Ex.P.2 and P.3, copy of post mortem report Ex.P.4, medical certificate of cause of death Ex. P.5, Bills Exs.P.6 to P.18 and affidavit Ex.P.19. On the other hand, the respondents examined Vikas Choudhry, Advocate as RW1, besides tendering in evidence copy of registration certificate Ex.R.1, copy of cover note Ex.R3 and copy of insurance policy Ex.R.4. After going through the evidence brought on record by the parties and hearing learned counsel representing them, learned Tribunal held that deceased Yadvinder Singh did not receive the injuries on account of use of the motorcycle bearing registration No. HR-08-F-9358 and the said motorcycle had been falsely involved in the accident in order to obtain compensation from the Insurance Company. In view of the said finding on issue No.1, issue Nos.2 and 3 were held to be redundant and the claim petition was, accordingly, dismissed. According to the claimants, at the time of the accident, motorcycle bearing registration No. HR-08-F-9358 owned by Hardev Singh respondent No.1 was being driven by Yadvinder Singh, since deceased and to Bagicha Singh was sitting on the pillion seat. While appearing as PW2, Bagicha Singh deposed that at about 5.30 P.M. on 19.1.2007 when Yadvinder Singh, since deceased, and he himself F.A.O. No. 4250 of 2007 -5- reached near petrol pump, Janetpur while riding the aforementioned motorcycle a stone came under the tyre of the motorcycle as a result of which both of them fell down. Yadvinder Singh received injuries and was taken to Amar Hospital, Patiala in a taxi from where he was referred to P.G.I., Chandigarh. In his cross-examination, he stated that for the injuries received by him he did not get himself medico legally examined, although he was given treatment by a local doctor in the village. He also admitted that he did not accompany Yadvinder Singh when he borrowed the motorcycle from Hardev Singh or when he was referred to P.G.I, Chandigarh. The fact that Bagicha Singh-PW2 had received injuries for which he was treated by a local doctor in the village establishes his presence at the time of the accident in which Yadvinder Singh also received injuries and succumbed to the same later on. The Insurance Company has relied upon the testimony of Shri Vikas Choudhry, Advocate-RW1, who was appointed as an Investigator of the case. Said Vikas Choudhry testified that he had investigated the case and submitted his report Ex.R3. In his investigation, he found that claimant Lakhvinder Kaur and owner of the motorcycle Hardev Singh, were closely related to each other and the involvement of motorcycle bearing registration No. HR-08-F-9358 was found to be false. He further stated that no photographs of the motorcycle has been taken at the place of occurrence and no mechanical examination of the motorcycle ever got conducted. It had also come to his knowledge that two DDRs F.A.O. No. 4250 of 2007 -6- had been recorded after a gap of two months. The report Ex.R3 had been relied upon by the learned Tribunal to hold that involvement of motorcycle bearing registration No. HR-08-F-9358 was false. The Investigator had been appointed by the Insurance Company. Normally, he would be expected to submit his report in favour of the Insurance Company to whom he is answerable. He had not been appointed under any Act or rules or by any public authority to submit his report in regard to the accident. In his cross-examination, he stated that when he visited the village of the claimants, he did not give any notice to the parties. He did not join the Sarpanch or Panch nor any police official during his investigation. He did not visit the Police Station nor met the Investigating Officer who had lodged the DDR. Therefore, such a report cannot be made the basis to deny the relief to the claimants. As regards two DDRs, one DDR No.19 was recorded on 23.1.2007 at 6.10 P.M. at the instance of E.H.C. Manbir Singh, wherein he stated that he recorded the statement of Malook Singh, who mentioned that his nephew Yadvinder Singh along with his maternal uncle's son Bagicha Singh was coming on a motorcycle to his house from village Chakoo Ladana. The motorcycle was being driven by Yadvinder Singh. At about 5.30 P.M., when they reached near petrol pump at Janetpur, a stone came under the tyre of the motorcycle as a result of which the motorcycle slipped. Both, Bagicha Singh and Yadvinder Singh fell down. Yadvinder Singh received injuries on his head, whereas Bagicha F.A.O. No. 4250 of 2007 -7- Singh had received injuries after they had fallen along with their motorcycle. Mere fact that the registration number of the motorcycle was not mentioned in DDR No. 19 was no ground to hold that the identity of the motorcycle was not established. As regards DDR No.15 dated 16.3.2007 recorded at 2.30 P.M. Ex.P.3, apparently an attempt had been made by Bagicha Singh to get an affidavit of Malook Singh so that an FIR be got registered, although there was no person responsible for causing the accident. In his affidavit, which was produced by Bagicha Singh, Malook Singh stated that on 19.1.2007 his nephew Yadvinder Singh received injuries by falling from a motorcycle bearing registration No. HR-08-F-9358 and on account of injuries on his head, Yadvinder Singh had died. It was for the first time that the registration number of the motorcycle was documented. Even if DDR No.15 dated 16.3.2007 Ex.P.3 is ruled out, that would not cause any doubt on the veracity of the claimants' case that the deceased along with Bagicha Singh had fallen from a motorcycle belonging to Hardev Singh and received injuries. As per the post mortem report Ex.P.4, the injuries found on the dead body of Yadvinder Singh were the result of blunt force/surface impact and could be possible by road side vehicular accident. Medical certificate Ex.P.5 issued by Junior Resident, Department of Neuro Surgery, P.G.I.M.E.R., Chandigarh also described the manner of death as accident. Mere fact that the motorcycle in question was owned by Hardev Singh-respondent, who was related to Lakhvinder Kaur-claimant as son F.A.O. No. 4250 of 2007 -8- of her Nanad (sister-in-law) is no ground to hold that there was any collusion between the claimants on the one hand and owner of the motorcycle so as to obtain compensation from the Insurance Company. Similarly, mere absence of any photographs of the motorcycle or a mechanical examination report in respect of the motorcycle, would not mean that no such accident on account of use of the motorcycle bearing registration No. HR-08-F-9358 had taken place. This is so because no third person was involved in the accident and the accident had taken place when the tyre of the the motorcycle went over a stone lying on the road as a result of which the motorcycle slipped leading to both its occupants falling down and receiving injuries and out of those two occupants, Yadvinder Singh receiving injuries on his head, which ultimately proved to be fatal. In view of the above, finding arrived at by the learned Tribunal on issue No.1 is set aside. It is held that deceased Yadvinder Singh received the injuries on account of use of the motorcycle bearing registration No. HR-08-F-9358. The deceased was 22 years of age as mentioned in the claim petition. His age was mentioned as 22 years in the post mortem report Ex.P.4 and 22/23 years in the medical certificate Ex. P.5. The age of the deceased, thus, can be taken as 23 years at the time of the accident. In affidavit Ex.P.1 tendered in evidence by Lakhvinder Kaur PW1, it was stated that the deceased had been growing vegetables, etc. in the F.A.O. No. 4250 of 2007 -9- agricultural land and earning Rs.3,300/- per month. Out of the said earning he had been giving Rs.2,500/- to his parents every month and keeping the remaining amount for his personal use. In her cross- examination, she had stated that the family owned about six acres of agricultural land. Taking an overall view of the case, it can safely be concluded that the deceased must be earning at least Rs.80/- per day, i.e. Rs.2,400/- per month. As family of the deceased consisted of his parents only, the dependency is to be taken as 2/3rd, i.e. Rs.1,600/- per month and the yearly dependency at Rs.19,200/-. Keeping in view the age of the deceased as 23 years and the fact that he was unmarried, it can again be concluded that he would have served his parents for a period of seven years, at least, and, therefore, multiplier of seven is required to be applied. Thus, the amount of compensation comes to Rs.1,34,400/-. Apart from the compensation amount, the claimants are required to be paid various amounts which they had spent on the treatment of their son Yadvinder Singh before he finally passed away. The claimants have brought on record receipts Ex.P.6 to P.18 showing the various amounts spent by them. All these receipts total upto Rs.12,000/- (approx.). Apart from the same, Rs.3,600/- has to be awarded to the claimants as transportation charges. In all, the claimants are, thus, entitled to receive an amount of Rs.1,50,000/-. as compensation. As regards the liability to pay the amount of compensation, the motorcycle in question stood duly insured with the respondent- F.A.O. No. 4250 of 2007 -10- Insurance Company vide cover note Ex.R.2 and insurance policy Ex. R.4. As the petition was filed under Section 163-A of the Act, the claimants were not required to establish any negligence for being granted amount of compensation. Therefore, non-production of the driving licence of the deceased would not disentitle the claimants from being granted the amount of compensation. In view of the same, it is the Insurance Company who will be liable to pay the entire amount of compensation. Resultantly, the appeal is allowed by accepting the claim petition filed by the appellants under Section 163-A of the Act. The claimants/appellants are held entitled to receive an amount of Rs.1,50,000/- as compensation on account of death of their son Yadvinder Singh in a motor vehicular accident. They shall also be entitled to interest on the said amount @ 7.5% per annum from the date of the filing of the claim petition till its realisation. Liability to pay the entire amount of compensation along with its interest shall be upon the respondent-Insurance Company. ( T.P.S. MANN ) February 02, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO