F.A.O NO. 1312 OF 1992 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O NO. 1312 OF 1992 DECIDED ON : 28.01.2010 Mohinder Kaur and others ...Appellants versus The Ldh Transport Co. and others ...Respondents CORAM : HON'BLE MR. JUSTICE K. C. PURI Present : Ms. Harveen Kaur, Advocate, for the appellants. Mr. Harsh Aggarwal, Advocate, for respondent no.3-Insurance Company. K. C. PURI, J. (ORAL) This is an appeal preferred by the mother and two minor sisters, claiming an amount of Rs.10 lacs on account of death of Harbhajan Singh-auto rickshaw driver in a motor vehicular accident. It is alleged that Harbhajan Singh was driving auto rickshaw bearing NO. PBJ-7352 and was going on his way on Jagraon Ludhiana road. When he reached near gate NO.2 of the Punjab Agricultural University, Ludhiana, a bus bearing No. PAB- 7051, being driven by respondent NO.1 rashly and negligently, F.A.O NO. 1312 OF 1992 -2- struck against the auto rickshaw and dragged it to a distance of about 20-25 karams. Thereafter, it hit a cyclist. As a result of the accident, Harbhajan Singh received multiple injuries and later on, he succumbed to the injuries. The accident had taken place due to rash and negligent driving of bus by respondent No.1. In the written statement filed by respondent-Ludhiana Transport Company, the accident has been admitted but the blame for the same has been thrown on the deceased. It is pleaded that the accident had taken place due to rash and negligent driving of the auto rickshaw. From the pleadings of the parties, following issues were framed : 1) Whether Harbhajan Singh died in a motor vehicular accident on 24.02.1991 at about 3 PM near Gali of the Punjab Agricultural University, Ludhiana-Jagraon Road, on account of rash and negligent driving of Bus No. PAB-7051 by Avtar Singh-respondent ? OPA 2) To what amount of compensation, if any, the appellants are entitled to recover and from whom ? OPA 3) Relief. F.A.O NO. 1312 OF 1992 -3- While deciding Issue No.1, the learned Tribunal returned the findings that deceased Harbhajan Singh has contributed negligence to the extent of 25%, whereas the remaining negligence is on the part of Avtar Singh-driver of the bus. While deciding Issue No.2, it has been held that the deceased was earning Rs.1500/- and is dependency has been taken to Rs.800/- per month and yearly dependency is calculated as Rs.9600/- and the multiplier applied in this case is 16. In this manner, it was held that claimant Mohinder Kaur alone is entitled to claim Rs.1,20,000/-, after deducting 25% amount from the assessed amount of Rs.1,50,600/-. Feeling dissatisfied with the above said award, the present appeal has been filed. Learned counsel for the appellants has vehemently challenged the finding of Issue No.1. It is submitted that the Tribunal itself has held that Avtar Singh has not come into the witness box and has further held that the deceased was dragged to a distance of about 20-25 karams and inspite of that, the negligence to the extent of 25% has been contributed without any reason. It has been further alleged that the Tribunal has mentioned in the judgment that the deceased has crossed major portion of the road and in that eventuality, the Tribunal should not have held that Harbhajan Singh was negligent. Learned counsel for the Insurance Company has supported the finding of the Tribunal on Issue No.1 and has F.A.O NO. 1312 OF 1992 -4- submitted that the Tribunal has rightly held that Harbhajan Singh was negligent. Harbhajan Singh should have checked before crossing the road. So the prayer has been made for confirming the finding on Issue No.1 I have carefully considered the submissions made by both the counsel for the parties and have gone through the records. The Tribunal itself has held that Harbhajan Singh has crossed the major portion of the road and he was dragged to the distance of 20-25 yards by the driver of the offending bus. The claimant has examined AW-2 Harvinder Singh, who has supported the case of the claimant on all material particulars, whereas Avtar Singh, who was the best person to depose , has not come into the witness box. So, adverse inference should have been drawn against the respondents. So, in these circumstances, findings on Issue No.1 stands set aside and it is held that the accident had taken place only on account of rash and negligent driving of bus by Avtar Singh. So far as findings on Issue No.2 are concerned, that needs to be modified in view of the findings on Issue No.1. So, the income assessed by the Tribunal and the dependency is correctly decided. However, cut of 25% cannot be maintained and it is held that the claimants are entitled to claim Rs.1,50,600/- along with interest awarded by the Tribunal. F.A.O NO. 1312 OF 1992 -5- The appeal stands disposed of accordingly. JANUARY 28, 2010 (K. C. PURI) shalini JUDGE