IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.1611 of 2001 (O&M) Date of decision: 23.12.2009 Smt. Raj Pal Kaur & others. -----Appellants Vs. Balbir Singh & others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH Present:- Mr. G.S. Punia, Advocate for the appellants. Mr. Suvir Sehgal, Addl.A.G., Punjab for respondent No.2 & 3. --- ORDER: 1. This appeal has been preferred against order of learned Single Judge, upholding the award of Motor Accident Claims Tribunal dated 15.1.1986, whereby claim of the appellants for compensation, on account of death of deceased Avtar Singh in an accident, was dismissed. 2. Case of the appellants is that on 6.4.1984, Avtar Singh was going to his village from Ludhiana on his moped Hero Magestic No.PBU-6544. When he reached near Laxmi Petrol Pump, bus No.PBF-8563 belonging to Punjab Roadways being driven rashly by the driver, came from the opposite and hit the moped of Avtar Singh, resulting into his death. He was taken to LPA No.1611 of 2001 the hospital where he was declared dead. A DDR was lodged with the police by the cousin of the deceased Nazir Singh. The deceased was aged 30 years at the time of accident and was employed with the National Highway Division and was getting salary of Rs.800/- per month. The claim was contested by the driver as well as the State of Punjab. The Tribunal held that evidence of AW-3 Swaran Singh and AW-5 Kirpal Singh, that they saw the accident while travelling in the bus in question, was held to be unreliable. They failed to prove the tickets of their travelling in the bus. There being no other evidence to connect the bus with the accident, there being no post-mortem examination done, there also being no investigation by the police and record of the Punjab Roadways having not been summoned nor there being record of bus having been taken into possession, the rash and negligence driving of the driver of the bus, was not established. The claimants were not entitled to any compensation. On appeal, learned Single Judge affirmed the said findings. 3. Notice was issued on the limited question of entitlement of compensation on no fault liability. Thereafter, the appeal was admitted. 4. We have heard learned counsel for the parties. 5. Learned counsel for the appellants submits that his plea of no fault liability was only in the alternative and his first plea was that when there was sufficient material to establish that the accident took place with the rash and negligent driving of the 2 LPA No.1611 of 2001 driver of the bus, the Tribunal as well as learned Single Judge ignored the material evidence on record and the appellants were entitled to compensation. Having regard to age of the deceased, the multiplier of 16 should have been applied. The salary being Rs.800/- per month, even if dependency was taken to be Rs.500/- per month, a sum of Rs.1 lac on the date of application should have been granted as compensation. Taking into account interest @ 6% for a period of 25 years, the total compensation of Rs.2.5 lacs be awarded to the claimants. 6. Learned counsel for the State supports the impugned judgment. 7. Learned counsel for the appellants submits that apart from AW-3 Swaran Singh and AW-5 Kirpal Singh, who were the eyewitnesses, the claimants examined AW-6 SI Ujagar Singh, Additional SHO of the Police Station, who went to the hospital on receiving information about the accident and recorded statement of Nazir Singh, cousin of the deceased. He recorded DDR No.45 and also recorded statement of the driver who admitted the accident. He saw the bus parked in front of the Petrol Pump where the accident took place. The State did not examine the conductor of the bus, who removed the deadbody to the hospital, according to the statement of AW-6 Ujagar Singh. 8. We find merit in the contention raised. The statement of AW-6 SI Ujagar Singh shows that death of Avtar Singh took 3 LPA No.1611 of 2001 place on account of accident with the bus belonging to the State. Relevant part of his statement is as under:- “On 6.4.84, I was posted as Addl. SHO in P.S. Sarabha Nagar, Ludhiana. On that day, I had gone to the ESI Hospital and recorded statement of Nazir Singh son of Vir Singh of V. Bassian Bet upon which Report No.45 was entered in the Roznamcha. Avtar Singh s/o Sucha Singh r/o Bassian Bet had died in a bus accident in which Bus No.PBF-8563 was involved. Avtar Singh died in ESI Hospital, Ludhiana where he was removed from the place of occurrence/accident by the conductor of the said bus for treatment. I do not know to whom the bus in question belonged. I had recorded the statement of Balbir Singh respondent driver, again said I had interrogated him who admitted that the scooter had struck against his bus when the deceased was riding the Moped Scooter No.6544 PBU as he was unsteady. The bus was parked in front of the Lakshmi Petrol Pump facing towards Ludhiana. The deceased was going towards Jagraon. Ex.R.1 is the copy of my report in this connection. I handed over the dead body of Avtar Singh to his mother and sister against receipt and Ex.R2 is the copy of that receipt.” This evidence has not been rebutted nor discussed in the impugned judgment. Evidence of AW-3 Swaran Singh and AW-5 Kirpal Singh corroborates the version of death of Avtar Singh in accident with the bus in question. The State did not examine the conductor who took the dead body to the hospital. The State also did not produce any evidence to show that the bus was not 4 LPA No.1611 of 2001 involved in the accident. Thus, in view of clinching evidence of AW-6 SI Ujagar Singh which remained unrebutted, it could be safely held that accident in question involving the bus of the State did take place and self serving stand of the driver denying the accident was not true. 9. We now come to the question of negligence. In view of error in the view taken in the impugned judgments in not appreciating evidence showing death of the deceased in accident and involvement of the bus in question, question of negligence has to be seen in the circumstances. The deceased was going on a moped. He was hit by bus. Driver erroneously denied the accident itself and thus, took a false stand. Adverse inference can be drawn from the said denial. In normal circumstances, responsibility of avoiding accident is more on a person driving heavier vehicle. In the circumstances, doctrine of res ipsa loquitor can be invoked. We have, thus, no option but to reverse the finding of the Tribunal and learned Single Judge and to hold that death of Avtar Singh was by rash and negligent driving of driver of bus owned by the respondent State. 10. We now come to the quantum of compensation. The quantum of compensation suggested by learned counsel for the appellants, noticed in para 5 above, is fair and consistent with the principles laid down by Hon’ble the Supreme Court in Sarla Verma & ors. v. Delhi Transport Corporation Ltd. and anr. 2009 (6) SCC 121. 5 LPA No.1611 of 2001 11. Accordingly, we allow this appeal and hold that the appellants are entitled to compensation of Rs.2.5 lacs including interest be paid to them within three months from the date of receipt of a copy of this order. If the payment is not made within the said period, the respondents will be liable to pay future interest @ 9% per annum thereof for the period of delay beyond the said period. The appellants will be entitled to recover the amount by way of execution. (ADARSH KUMAR GOEL) JUDGE December 23, 2009 ( ALOK SINGH ) ashwani JUDGE 6