F.A.O.NO. 2235 OF 1998 and F.A.O.NO. 1660 OF 1998 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. F.A.O.NO. 2235 OF 1998 Date of decision:13th October, 2010 Dev Kaur and another .......Appellants Versus Sardara Singh and others ........Respondents 2. F.A.O.No. 1660 OF 1998 Santosh Kumari and others ........Appellants Versus Sardara Singh and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. N.S.Sitta, Advocate and Mr. H.P.S.Gill, Advocate, for the appellants in the respective appeals. Mr. Karminder Singh, Advocate, for National Insurance Company Ltd. In FAO NO. 1660 of 1998. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. Both the appeals are at the instance of the claimants for enhancement of compensation awarded to a passenger and the driver who died in a motor accident. The insured's jeep had fallen into a canal and both the driver and the passenger died. The evidence was F.A.O.NO. 2235 OF 1998 and F.A.O.NO. 1660 OF 1998 -2- that the accident must have occurred by brake failure and therefore, there was no fault on the part of the driver and no negligence could be attributed to him. The Tribunal therefore, awarded on “no fault basis” under Section 140 of the Motor Vehicles Act. 2. The contention of the learned counsel appearing for the claimants is, if an accident takes place by an alleged mechanical failure, it shall still be taken to be only a case where the owner/insured had not maintained the vehicle properly that resulted in a mechanical failure. Even this aspect of mechanical failure was a matter of inference by the Tribunal since another passenger who was the wife of the deceased was also travelling in the jeep and she gave evidence to the effect that the accident took place when the driver swerved to one side and he could not steer the vehicle properly and that resulted in the vehicle falling into a canal. 3. In my view both situations would make the insurer liable. It will be wrong to assume that an insured could have a non road worthy vehicle being driven on a road and plead for exclusion of liability that it was not due to any negligence of the driver. The accident could be the result of negligence of several persons and we normally come across situations where an accident takes place by the negligence of the driver. If the negligence was not of the driver but it is of the owner, when he does not keep the vehicle in good shape and in a state of repair, even then, it should only be taken that the accident is the result of negligence, which constitutes a valid cause of action. F.A.O.NO. 2235 OF 1998 and F.A.O.NO. 1660 OF 1998 -3- This point was totally missed by the Tribunal in assuming that all mechanical failures must be taken to be situations of no liability. It has been held in Lali vs. Gurbax Singh (1990) 2 ACC 588(Rajasthan) that taking on road a vehicle which is not properly maintained resulting in death of victim is itself a negligent act. Same way the Madhya Pardesh High Court has also held that taking on road a vehicle without proper repairs itself would constitute negligence in State of Madhya Pardesh vs. Sagirath Bali (1994) 1 ACC 572 In a case relating to the Transport Corporation bus where bus was reported to be defective, a Division Bench of Allahabad High Court found the owner responsible in UP State Transport Corporation vs. Dewarti (1987) 1 ACC 433. There are any number of incidents where Courts have always found the owner and the insurer responsible where an accident results from bursting of tyres. It has seldom held to be an act of god but a result of poor up keep of the tyre. These illustrations are merely to state that mechanical failure cannot always be a ground for either the owner or the driver to escape the consequences of a claim arising out of the accident when death or bodily injury results. For such a result of exoneration, there has to be a proof from the owner or insurer that the vehicle was being properly maintained. For the same reason, the provisions of the Motor Vehicles Act that requires fitness certificate for certain classes of people have not made possible an Insurance Company to plead the want of fitness certificate as a ground to deny F.A.O.NO. 2235 OF 1998 and F.A.O.NO. 1660 OF 1998 -4- liability. The converse is also true that if there is a fitness certificate but an accident still results by a mechanical failure, the Insurance Company would still be liable and it can not plead that the vehicle had all times be maintained and it had a fitness certificate. Either way the Insurance Company can not escape liability for an accident that results from negligent up keep of the vehicle. The Tribunal was therefore, in error in determining compensation only on the basis of no fault basis under Section 140 of the Motor Vehicles Act. 4. As regards FAO NO. 1660 of 1998 which addresses a claim for death of a person who was working as a peon in the office of Additional Deputy Commissioner, Ropar, an official produced documentary proof for the income of the deceased was Rs. 2,827/-. He had security of tenure and he was bound to obtain increases in salary over the length of his career. I would adopt the formula as given in Sarla Verma Vs. Delhi Transport Corporation and another (2009) 6 SCC 121and take an additional 50% as an increase that would become possible and take an average salary of Rs. 4,240/- as the monthly salary of the deceased. He had a widow, four minor children and an aged mother. Having regard to the fact that he has six dependents, I would provide for 1/5th deduction for his personal expenses and take the contribution towards the family Rs. 3,392/-. I would adopt a multiplier of 17 and find loss of yearly dependence would be Rs. 40,708/-. If I adopt a multiplier of 17, the amount of loss F.A.O.NO. 2235 OF 1998 and F.A.O.NO. 1660 OF 1998 -5- towards dependency will become Rs. 6,92,050/-. I will add Rs. 5000/- towards loss of consortium for the wife, Rs. 2,500/- for each of the minor children as loss of love and affection. An additional amount of Rs. 5,000/- towards loss to estate and funeral expenses that would make available Rs. 7,12,050/-. The mother of the deceased will be entitled to Rs. 1,00,000/- and the remaining amount shall be shared equally between the wife and the children. The amount determined in excess over what has already been awarded by the Tribunal will attract interest at 6% from the date of the petition till the date of payment. 5. Having regard to the fact that I have adopted a multiplier of 17 and as the accident has taken place more than 14 years from now I would direct that 80% of the amount determined for wife and children shall be released to them and the remaining 20% shall be kept in deposit for another period of four years and released to them on the expiry of the said period. As far as the mother's share is concerned she will be entitled to the whole amount with interest in the manner referred to above. The appeal i.e. FAO No. 1660 of 1998 is allowed to the above extent. 6. As regards the claim in FAO NO. 2235 of 1998, that is with reference to death of the driver, it was in evidence through employer himself, RW-1 to the effect that the deceased used to earn Rs.1,200/- per month as salary and an additional amount of Rs. 300/- towards some allowance. The Tribunal took Rs. 1,500/- as salary and took F.A.O.NO. 2235 OF 1998 and F.A.O.NO. 1660 OF 1998 -6- extent of dependency to be Rs. 500/- and adopted a multiplier of 10. I would instead assess the compensation under Schedule II, having regard to the fact that the salary is in a low bracket and take 1/3rd deduction for personal expenses, I would take the contribution to the family at Rs. 1,000/- per month and adopt a multiplier of 17 that is applicable for his age of 25 years. I would add Rs. 4,500/- towards loss to estate and funeral expenses and determine the compensation at Rs. 2,08,500/-. The amount determined in excess over what has already been awarded by the Tribunal will attract interest at 6% from the date of the petition till the date of payment. Both the appeals are allowed to the above extent. [K.KANNAN] JUDGE 13th October, 2010 Shivani Kaushik