IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.377 of 1999 (O&M) Date of decision:08.10.2010 Surjit Kaur and others ....Appellants versus Surjit Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Jatinder J.C.Nagpal, Advocate, for the appellants. None for respondent No.1 Mr. Baljinder Singh, Advocate, for respondents 2 and 3. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The claim is for enhancement at the instance of the representatives of the deceased, who was 35 years of age and who was said to be an agriculturist. He was a pedestrian and was crushed to death by the respondents' bus. The Tribunal found that the deceased was guilty of contributory negligence and made a partial abatement of 1/3rd of what the Tribunal determined as compensation payable. The compensation was determined by taking 1/3rd and applying a multiplier of 13. Since the deceased fell below the income limit of Rs.40,000/-, I would adopt the compensation in the manner provided by Schedule-II of the MV Act. FAO No.377 of 1999 (O&M) - 2 - Taking his income as Rs.2,100/- and providing for deduction of 1/3rd and taking the contribution to be Rs.1,400/- as determined by the Tribunal, I will apply the multiplier of 16 instead of 13 as taken by the Tribunal and find the extent of dependency to be Rs.2,68,800/-. I will also add the conventional heads of claims to another Rs.9,500/- and take the compensation payable at Rs.2,78,300/-. 2. As regards the finding regarding contributory negligence in a case where an accident takes place involving a pedestrian, it will be usually wrong to apply a principle of contributory negligence. No pedestrian walks on road to get killed. The driver of motorcycle alone shall apply at all times greater caution and I will, therefore, vacate the finding that the pedestrian had contributed to the accident. It has been decided by the Hon'ble Supreme Court in Khaushama Begum Versus New India Assurance Company Limited-(2001) 1 SCC 155 that a driver may not wholly responsible for an accident. In that case, the tyre burst resulting in an accident. The Court applied the principle of strict liability norm laid down under Rylands Versus Fletcher and found the entire amount to be payable by the owner of the vehicle and the insurer. This norm finds legislative acceptance through the enactment of Section 163- A. A person that dies in an accident is not required to prove the negligence unless he was a tort-feasor himself. A pedestrian could never be a tort-feasor what the claimants could have obtained as their entitlement under Section 163-A cannot be lost by an application under Section 166 and abatement of a portion of the claim by finding contributory negligence is set aside. FAO No.377 of 1999 (O&M) - 3 - 3. The appeal is allowed and an enhancement is provided in the manner indicated above and the amount in excess over what was already awarded by the Tribunal, shall carry interest at 6% from the date of the petition till the date of payment. (K.KANNAN) JUDGE 08.10.2010 sanjeev