IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO No.240 of 1992 & Cross Objections No.75-CII of 1992 Date of decision: 6.3.2009 Gurminder Singh & another. -----Appellants Vs. Dr. Rajni Kumari. -----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE JITENDRA CHAUHAN Present:- Ms. Radhika Suri, Advocate for appellants. Mr. Ashit Malik, Advocate for the claimant/cross-objector. Ms. Vandana Malhotra, Advocate for the Insurance Company. ----- ORDER: 1. This appeal has been preferred by Ravinder Pal Singh, owner of tempo No.HNE-9770 and Gurminder Singh, driver of the tempo No.HNE-9770 against the award of compensation on a claim petition filed by Dr. Rajni for injuries suffered by her in an accident on 28.1.1990 caused on account of rash and negligent driving of the appellant-driver. 2. Case of the claimant was that she alongwith her husband Dr. Hemant Kumar and father-in-law Sh. G.D. Kathapalia was traveling in a Maruti van No.DNB-5515. In the accident, she suffered FAO No.240 of 1992 & Cross Objections No.75-CII of 1992 injuries while her father-in-law died. Claim compensation arising out of death of Sh. G.D. Kathapalia was separate and is not subject matter of appeal before this Court. The Tribunal allowed the claim of Dr. Rajni to the extent of 1.95 lacs being 2/3rd of about 2.92 lacs which was assessed to be 60% of loss of income. It was found that the claimant suffered 60% disability in the leg. 3. Learned counsel for the appellants challenges the findings of the Tribunal on the issue of negligence as well as on the issue of award of amount of compensation. It was submitted that the vehicle in which the injured was traveling, was on the wrong side and the Tribunal itself found that husband of the claimant Dr. Hemant Kumar was guilty of composite negligence to the extent of 1/3rd. In fact, the entire negligence should have been of Dr. Hemant Kumar. It was also submitted that percentage of loss of earning could not be equated to percentage of disability in the leg unless it could be shown that loss of earning was directly proportionate to the disability. 4. The claimant has also filed cross-objections to claim that the entire amount of loss assessed on account of injuries received by the claimant, should have been awarded irrespective of composite negligence by the husband of the claimant. The claimant could, in law, claim compensation either from the joint tort-feaser or who may be responsible for composite negligence. He submitted that the finding of the Tribunal on the issue of negligence was correct and the claimant was entitled to the compensation assessed by the Tribunal, if claim for further enhancement was not acceptable. 2 FAO No.240 of 1992 & Cross Objections No.75-CII of 1992 5. Question for consideration is whether the findings of the Tribunal on the issue of negligence, loss of earning to the extent of 60% and holding the claimant to be entitled to only 2/3rd of the loss assessed as compensation call for interference? 6. On the issue of negligence, the Tribunal has recorded the following finding:- “11. In this connection, it is admitted case of both the parties that Maruti van had come from Delhi side and when it reached a point on the G.T. Road from where the side road goes to Uchana Lake, at that time tempo driver by respondent No.2 came from opposite direction i.e. from Ambala side. Further though Dr. Hemant Kumar PW-2, driver of the van in question, and Dr. Mrs. Rajni Kumar PW-5 have stated that at the time of accident its driver was about to turn it towards the lake i.e. right hand side but it has come in the testimony of Mrs. Neelam Kumar PW7 that the accident took place when their van had just started turning. Further according to testimony of said three witnesses examined by the claimants as well as that of respondent No.2 driver of the tempo in question conductor side of both the vehicles have collided meaning thereby that the van had come on its extreme right hand side of the road after having started turning because before that the van must be on its due left of the road. It is admitted case of both the parties at the time of arguments that at the place of accident there is a curve in the G.T. Road and visibility from that point on the G.T. Road is only for a short distance. When such is the position it was duty of the driver of both the vehicles in question involved in the accident to take all precautions in the matter of driving at such a point. Since the Maruti van driver wanted to take a turn towards right hand side on 3 FAO No.240 of 1992 & Cross Objections No.75-CII of 1992 that point it was his duty also to carefully see before starting turning his van from his left hand side of the road towards his right hand side of the road whether any vehicle was coming from the opposite direction of the G.T. Road which is supposed to come every moment and yet he started turning without seeing the tempo coming from the opposite direction when it was more than 10 years away. So he cannot be absolved from his negligence in the matter of causing the accident in question altogether. However, since he was turning towards right obviously his vehicle was slow, whereas the tempo in question coming from the opposite direction was apparently at a high speed because otherwise he could apply the brakes and could easily avoid the accident and therefore, respondent No. was more to be blamed in the matter of causing the accident because as stated by driver of the Maruti Van Dr. Hemant Kumar PW-2 as well as Dr. Mrs. Rajni Kumar PW-5 and Neelam Kumar PW-7 indicator and signal before turning the van was given and that testimony appears to be natural because in that van about 5 or 6 male members and two kids i.e. sons of the van driver i.e. all members and close relations of the family of the van driver were present, therefore, it was natural for him not to be negligent to that extent of not giving indicator before starting turning the Maruti van and so testimony of Gurminder Pal Singh respondent No.2 as RW-1, driver of the tempo, when he states that the driver of the van did not give indicator or signal before taking turn does not inspire confidence. His further testimony that at the time of accident he was driving his tempo from Ambala for going towards Panipat, a bus was coming from opposite direction and behind that bus was coming maruti van in question, does not appear to be credible on the point of the bus also coming in between the two 4 FAO No.240 of 1992 & Cross Objections No.75-CII of 1992 vehicles involved in the accident there being no pleading to that effect in the written statement. Had actually the bus been coming this fact would have been mentioned in the written statement, and he could also specify its number, but he could not do so as RW2. Keeping in view the totality of the circumstances, it seems that the respondent No.2 driver of the tempo in question, was negligent in driving to the extent of 67% and van driver Dr. Hemant Kumar was negligent to the extent of 33% in the matter of causing the accident.” 7. From the evidence, it is clear that the tempo was being driven at high speed and necessary care was not taken in controlling the vehicle, which was responsible for causing the accident. Negligence of the tempo driver was, thus, patent while the driver of Maruti van was also partly responsible. We, thus, affirm the finding of the Tribunal on this aspect and hold that the accident was caused by rash and negligent driving of the driver of tempo in the manner held by the Tribunal. 8. As regards the claim, the Tribunal held as under:- “20..... She according to testimony of Dr. Rajesh Chitkara PW4 has suffered over 60% permanent dis-ability. Thus viewed loss in her earning capacity comes to Rs.1200/- per month i.e. R.14400/- per annum.” 9. Even though loss of earning may depend on nature of job of injured and particular disability may not proportionately affect the earning, taking overall view of the matter, loss of earning assessed 5 FAO No.240 of 1992 & Cross Objections No.75-CII of 1992 @ Rs.1200 per month i.e. Rs.14400/- per annum, cannot be said to be on the higher side. We, thus, hold that loss of earnings attributable to disability is not less than Rs.1200 per month, irrespective of issue of proportion of disability and loss of earning. Finding on the issue of Multiplier and award of compensation under other heads, having not been challenged, will stand affirmed. 10. We, thus, do not find any merit in the appeal filed by the appellants. 11. In support of the cross objections, learned counsel for the cross-objector/claimant submitted that the claimant had a choice to recover the amount from either of the tort feasers in case of composite negligence. Reliance has been placed on judgment of the Hon’ble Supreme Court in A.P.S.R.T.C. & Anr. v. K. Hemalatha & ors. 2008(6) SCC 767. 12. Learned counsel for the appellants submitted that this principle could be invoked only if both the tort-feasers were impleaded as a party. In the present case, the claimant has chosen to proceed only against the owner and driver of the tempo and not impleaded the driver of the Maruti van, who was husband of the claimant and in such a situation, it will not be appropriate for the claimant to claim compensation from the owner of the tempo, for the fault of her husband. 13. Even though in K. Hemalatha (supra) it has been held that each wrong doer is jointly and severally liable for payment of entire damages and the injured person has choice of recovering compensation from either of them without establishing the extent of 6 FAO No.240 of 1992 & Cross Objections No.75-CII of 1992 responsibility of each wrong-doer separately, there is nothing to hold that the wrong doer need not even be impleaded as a party. 14. Thus, we do not find any merit in the contention of the cross-objector that even in absence of other wrong doer being a party, the entire amount could be recovered from the driver and owner of the tempo who has been held to be negligent to the extent of 2/3rd. 15. For above reasons, the appeal as well as cross- objections are dismissed. ( ADARSH KUMAR GOEL ) JUDGE March 06, 2009 ( JITENDRA CHAUHAN ) ashwani JUDGE 7