IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.589 of 1985 (O&M) Date of decision:05.01.2011 Dev Karan Sharma and others ....Appellants versus Lal Chand and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Deepak Gupta, Advocate, for the appellants. Mr. Sanjiv Pabbi, Advocate, for respondent No.4. Ms. Manmeet Kaur, Advocate, for respondent No.5. None for remaining respondents. ---- 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 appeal is filed against the award of dismissal of the petition for compensation for death of a passenger in a truck owned by the second respondent and driven by the first respondent. As per the claimants' case, the deceased was travelling on the tool box of the truck and the accident had happened when the driver of the truck dashed against an excise barrier and by virtue of the impact, the passenger died. The claimants were the aged parents, widow and minor children. 2. The Tribunal held that the deceased himself was careless in sitting on the tool box and he had no authority to sit in the truck. FAO No.589 of 1985 (O&M) - 2 - Consequently, the Tribunal held that no negligence could be attributed to the driver of the truck. In my view, the reasoning is absolutely wrong and perverse. If the driver had no authority to take a passenger but he had allowed a passenger to board the vehicle and he had also allowed a person to sit in a place which was risky, the driver shall be responsible for the consequences of his act and for the same reason, the owner shall also be vicariously liable. It shall not be possible to relieve the obligation of a driver and owner for the negligent act allowing a person to sit in a precarious place and run the passenger to a risk of accident. The very fact that the vehicle dashed against an excise barrier was sufficient to show that the driver had been rash and negligent also in his driving. The liability of the driver and owner is clearly established and the dismissal of the petition was, therefore, unjustified. 3. As regards the quantum of compensation, the Tribunal had evidence before it that he was living in Delhi and he was earning Rs.970/- per month. The wife had given evidence to the effect that the husband used to give Rs.1,000/- per month for family expenses. Strangely the Tribunal thought that in a case he had to support a large family of 11 dependents on him, the deceased would have spent 2/3rd of his income for himself and would have contributed only Rs.300/- to the family. This again, in my view, is grossly unfair and poor appreciation of fact. I would take the contribution to the family at Rs.1,000/- and since he was aged 30 years, I would, therefore, apply a multiplier of 17 and take the loss of dependence at Rs.2,04,000/-. I would add Rs.5,000/- towards loss of consortium to the wife and provide for loss of love and FAO No.589 of 1985 (O&M) - 3 - affection for three children @ Rs.2,500/-. I will add another Rs.2,500/- towards loss to estate and Rs.2,000/- towards funeral expenses. In all, the total sum will be Rs.2,21,000/-. The Insurance Company could not have been made liable in a case where the deceased was a passenger in a truck and even the policy had been filed in this case as R1 that showed that it was a commercial vehicle and there could not have been a passenger in a truck. There was no provision even under the MV Act of 1939 to cover the risk to a passenger in a truck. The liability shall, therefore, be only on the owner and the driver and the Insurance Company shall stand exonerated. 4. The award of the Tribunal is set aside and there shall be an award in favour of the claimants for the amount mentioned above and it shall be distributed amongst the widow and children equally with the parents of the deceased together taking one share along with the other representatives of the deceased. Since the case relates to an accident that had taken place in the year 1982 and the award has been granted only against the owner and the driver, in the event of the matter being placed before the Tribunal for execution, it shall take up the matter immediately and proceed to execute the award with utmost sense of urgency. 5. The appeal is allowed to the above terms. (K.KANNAN) JUDGE 05.01.2011 sanjeev