F.A. O. No.303 of 1997. -1- In the High Court of Punjab and Haryana at Chandigarh. F.A.O.No.303 of 1997. Date of decision:1-5-2008. Varinder Singh and others. ...Appellants. Versus Ramesh Chander and others. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. R. K. Malik, Senior Advocate with Mr. Parveen Rohilla, Advocate for the appellants. Mr. D.P.Gupta, with Mr. Kunal Garg, Advocate for respondent No.3/ Insurance Company. ... K. C. Puri, J. Judgment. This is an appeal directed by the claimants/appellants against the award dated 11.10.1996 passed by the Motor Accident Claims Tribunal, Karnal vide which claim petition No.62 of 1994 titled Varinder Singh and others Versus Ramesh Chander and others, was dismissed. Briefly stated the facts are that on 24.12.1993, Narinder F.A. O. No.303 of 1997. -2- Singh, since deceased, was working as a Cleaner on truck No. HNR- 1542. The said truck was being driven by Ramesh Chander, respondent, in a rash and negligent manner. When the truck reached near village Manak Majra, District Karnal, at about 3-00 AM, another truck bearing registration No.DL-IG-3797 which was loaded with goats came from Delhi side. The driver of truck No.HNR-1542 could not control his truck and brought the same on his wrong side of the road and struck against truck No. DL-IG-3797 due to which some goats were killed. The cleaner of the offending truck succumbed to his injuries. Both the trucks turned turtle. Nathu Ram also received injuries on account of accident. Four claim petitions were filed bearing MACT No.31 of 1994, titled Prabhu Dayal Versus Ramesh Chander, MACT No.44 of 1994, titled Nathu Ram Versus Ramesh Chander, MACT No.62 of 1994, titled Varinder Singh and others Versus Ramesh Chander and MACT No.,120 of 1994 titled Kaptan Singh Versus Rajneesh Kumar and others. In claim petition No.31 of 1994, Prabhu Dayal has claimed that he was the owner of goats loaded in truck No.DL-IG-3797 which were killed in the accident. He claimed a sum of Rs.five lacs as compensation. Nathu Ram, has filed claim petition claiming compensation of Rs. five lacs for the injuries sustained by him in the accident. F.A. O. No.303 of 1997. -3- Kaptan Singh has filed claim petition in respect of damage to truck No.HNR-1542 by taking the plea that the driver of truck No. DL-IG-3797 was negligent and the accident has taken place due to rash and negligent driving of that driver. He has claimed Rs.two lacs on account of damage to his truck No.HNR-1542. The present claimants have averred that Narinder Singh deceased was employed as a Cleaner with Kaptan Singh and was earning Rs.1,500/- per month. The claimants are brothers of the deceased. They being the legal representatives of Narinder Singh are entitled to claim compensation amounting to Rs.five lacs. All the four claim petitions were resisted and have been disposed of with the common award dated 11.10.1996 passed by Shri R.C.Gupta, the then Motor Accident Claims Tribunal, Karnal. The learned Tribunal framed the following issues:- 1. Whether the accident dated 24.12.1993 near village Manak Majra resulting into the deaths of goats of Prabhu Dayal, injuries to Nathu Ram, death of Narinder Singh and damage to truck No.HNR-1542 took place due to rash and negligent driving of truck No.HNR-1542 by its driver- respondent Ramesh Chander, or due to rash and negligent driving of truck No.DL-IG-3797 by its driver-respondent Rajneesh Kumar or it is case of composite negligence of both the drivers?OPP. F.A. O. No.303 of 1997. -4- 2. Whether applicant Prabhu Dayal is entitled to any compensation on account of deaths of goats. If so, how much and from whom? OPP. 3. Whether applicant Nathu Ram is entitled to any compensation on account of the injuries. If so, how much and from whom? OPP. 4. Whether applicants Varinder Singh etc. are entitled to any compensation on account of the death of Narinder Singh. If so, how much and from whom? OPP. 5. Whether applicant Kaptan Singh is entitled to any compensation on account of damage to his truck No.HNR- 1542. If so, how much and from whom? OPP. 6. Whether both the vehicles were being driven by unauthorised persons, who were not holding a valid driving licence at the time of accident. If so, its effect ?OPR. 7. Relief. While deciding issue No.1, the learned Tribunal has returned a finding that the accident had taken place due to rash and negligent driving on the part of driver of truck No.HNR-1542. Issue No.4 was decided against the claimants holding that there was nothing on the file whether any loss of estate has been caused to the claimants i.e. the brothers of the deceased and hence they were not entitled to any amount of compensation. Consequently, the claim petition filed by the F.A. O. No.303 of 1997. -5- present claimants was dismissed. Issue No.5 was decided against Kaptan Singh, in view of findings on issue No.1. Issue No.6 was also decided against the Insurance Companies. Issue No.2 was decided against Prabhu Dayal. Issue No.3 was decided in favour of Nathu Ram and an amount of Rs.6,000/- was granted to him as compensation on account of the injuries sustained by him in the accident. In the present appeal, the controversy is whether the claimants are entitled to compensation on account of death of their brother Narinder Singh. The learned Tribunal has non-suited the claimants on the ground that the claimants have failed to prove that they were living with the deceased. Another ground taken by the Tribunal is that since the dead body was cremated by the police,on that count, the claimants were not entitled to claim any amount for the death of Narinder Singh. The other ground for non-suiting the claimants was that the claimants have not asked Kaptan Singh that Narinder Singh was a Cleaner on his truck and on that count a presumption has been taken that Narinder Singh was a gratuitous passenger and hence the claimants are not entitled to claim compensation from the Insurance Company. The learned counsel for the appellants has submitted that the Hon'ble Supreme Court of India in the authority reported as Gujrat State Road Transport Corporation, Ahmedabad V.Ramanbhai Prabhatbhai and another, Accidents Claims Journal 1987,page 561 F.A. O. No.303 of 1997. -6- has categorically held that a brother of a person who was killed in a motor vehicle accident can claim compensation in a proceeding instituted before Motor Accidents Claims Tribunal being legal representative. It has been further held in that authority that object of Section 110-A of the Motor Vehicles Act, 1939 and Sections 1-A and 2 of Fatal Accidents Act, 1855 is the same and the brothers being legal representatives are entitled to compensation on account of death in a motor vehicle accident. In para No.14 of the said judgment, the Hon'ble Apex Court has held as under:- “Before concluding we may add that although the Act was extensively modified after the receipt of the report of the Law Commission, Parliament did not choose to amend section 110-A of the Act by defining the expression 'legal representative' in relation to claims under Chapter VIII of the Act as the 'spouse, parent and children of the deceased' as recommended by the Law Commission. The Law Commission had observed in its 85th Report that it would be appropriate to assign to the expression 'legal representative' the same meaning as had been given to the expression 'representative' for the purposes of the Fatal Accidents Acts, 1855 and that would effectively carry out the purpose of social justice underlying Chapter VIII of the Act, to which the Fatal Accidents Act, 1855 was the nearest F.A. O. No.303 of 1997. -7- approximation. This recommendation was made after referring to the divergent views expressed by the various High Courts on the meaning of the expression 'legal representative' in section 110-A of the Act. The fact that Parliament declined to take any action on the recommendation of the Law Commission of India suggests that Parliament intended that the expression 'legal representative' in section 110-A of the Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased.” So, from the bare reading of the above observations, it is clear that the Parliament has declined to take any action on the recommendation of Law Commission of India in context to Section 110-A of the Act, thereby giving wider meaning to the legal representatives and that is not confined to spouse, parents and children of the deceased. No contrary authority to the above-said authority has been produced by the opposite party. The learned Tribunal has discussed that the deceased may be a gratuitous passenger but that finding is without any evidence. Varinder Singh, while appearing as PW-1 has stated as under:- “P.W.1 Varinder Singh son of Shri Nardev Singh, aged 20 years, labourer, resident of village Moth Karnail, District Hissar F.A. O. No.303 of 1997. -8- on SA( applicant in MACT Case No.62/94). My parents have died. We were four brothers. Our elder brother Narinder Singh, aged 23 years, un-married, cleaner by profession died on 24.12.93. His income was Rs.1500/- per month. My two brothers Joginder Singh and Sunder Singh are minors. We all brothers were dependent upon the income of Narinder Singh. After the death we have been ruined. I had no profession but only now have been making my both ends meet after doing the labour job. XXXmn by the respondents. I have a ration-card. In that names of our all brothers figure. I had taken the pay of my brother for 24 days from his employer. I had issued the receipt of the same. He used to sign on the receipt, that is, in the register for taking the pay. He was working with Captain Singh, respondent No.2. I am working as a labourer since 1991. It is incorrect to suggest that my brother was not a cleaner and he was doing nothing. My brother had left no property. It is incorrect to suggest that I am deposing falsely. RO&AC. 15.3.1995.” So, from the bare reading of the statement of Varinder Singh alone, it is revealed that he has stated that deceased Narinder F.A. O. No.303 of 1997. -9- Singh was unmarried and was working with Kaptan Singh, respondent No.2 as a Cleaner. Kaptan Singh has appeared as PW-3. He has not denied the fact that Narinder Singh was employed as a Cleaner. Kaptan Singh was a claimant in his case and could not be cross-examined by the claimants of other case. So, the finding of the Tribunal that it be presumed that he was a gratuitous passenger in the presence of statement of PW-1, Varinder Singh on oath with no rebuttal to the same, does not sustain the test of legal scrutiny. Varinder Singh has stated that he has received the pay of his brother for 24 days from his employer. The Tribunal has given finding that the dead body of Narinder Singh was cremated by the police as unclaimed. Even if the dead body of Narinder Singh was cremated by the police, that does not debar the claimants to claim compensation on account of death of Narinder Singh, in view of authority in Ramanbhai's case (supra). In the light of above discussion, the finding on issue No.4 returned by the learned Tribunal stands set aside and it is held that the claimants are entitled to claim compensation on account of death of Narinder Singh. The learned Tribunal has not assessed the amount of compensation. The accident relates to the year 1993 and it would not be in the interest of justice to remand the case for that purpose. The amount of compensation can be assessed by the Appellate Court also. The claimants have taken a stand that the deceased was F.A. O. No.303 of 1997. -10- earning Rs.1,500/- per month as a Cleaner but there is no evidence on the file to this effect except the bald statement made by Varinder Singh, claimant. Therefore, the income of the deceased can be taken at Rs.1,000/- per month. The deceased must have been married after few years. So, the dependency of the claimants on the deceased can be taken at Rs.500/- per month. The yearly dependency of the claimants comes to Rs.6,000/-. The multiplier applicable to the claimants is 16. As a result, the claimants are held entitled to claim compensation of Rs.96,000/- in all, along with interest @ 6% per annum, from the date of application till realization. While deciding issue No.1, it has been held that the accident has taken place due to rash and negligent driving of truck No.HNR-1542 driven by Ramesh Chander, respondent. The said truck was owned by Kaptan Singh and the Oriental Insurance Company was the Insurance Company of the said vehicle. So, Ramesh Chander, being the driver, Kaptan Singh, being the owner and Oriental Insurance Company, respondent No.3, being the Insurance Company of the offending truck No.HNR-1542 are held liable to pay the amount of compensation jointly and severally. The primary liability to pay the compensation will be that of Oriental Insurance Company,respondent No.3. In view of above circumstances, appeal stands accepted. Award dismissing the claim petition of appellants stands set aside and F.A. O. No.303 of 1997. -11- claim petition stands accepted with costs, to the extent indicated above, and respondent Nos.1 to 3 are jointly and severally directed to make the payment of Rs.96,000/- along with interest @ 6% per annum from the date of application till realization. The primary liability to pay the awarded amount is held to be that of respondent No.3, Oriental Insurance Company. The said amount shall be shared by the claimants in equal shares. May 1,2008. ( K. C. Puri ) Jaggi Judge