IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 828 of 1991 Date of Decision : April 27, 2010 Jagjit Singh ....Appellant Versus Kulwant Singh and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Deepak Suri, Advocate for the appellant. Mr. Malkeet Singh, Advocate for respondent No.1. Mr. P.S. Sidhu, Additional Advocate General, Punjab for respondents No.2 and 3. T.P.S. MANN, J. In respect of a motor vehicular accident, which had taken place on 16.11.1988 in which Amandeep Singh, Nirmal Singh, Gurbachan Singh, Charanjit Kaur and Iqbal Kaur lost their lives while Jagjit Singh, Jasbir Kaur, Sukhwinder Kaur and Tarwinder Kaur received injuries, nine claim petitions were filed. Paramjit Kaur, her son and mother-in-law also filed a separate claim petition seeking compensation on account of damage to the taxi belonging to her deceased husband Nirmal Singh. All the ten claim petitions were consolidated by the Motor Accidents Claims Tribunal on 19.9.1989 and FAO No. 828 of 1991 -2- finally decided on 9.2.1991. The claim petition filed by Paramjit Kaur and two others, seeking compensation for the damage to the taxi was dismissed whereas the remaining nine claim petitions were accepted and varied amounts of compensation were granted to the respective claimants. Not satisfied with the amount of compensation awarded by the learned Tribunal, the claimants filed FAO Nos. 828, 829, 830, 831, 833, 888, 889, 890 and 891 of 1991 whereas Paramjit Kaur and others, legal heirs of Nirmal Singh, owner of the taxi filed FAO No. 832 of 1991 wherein they prayed for granting them compensation on account of damage to their vehicle. Punjab Roadways, Batala and the State also filed FAO No. 137 of 1993 for challenging the award to the extent of granting an amount of Rs.57,182/- to Sukhwinder Kaur as compensation on the ground that the same was not only excessive but illogical and not justified as per the medical evidence, facts and the law. As all the appeals have arisen out of one and the same award rendered by the Tribunal on 9.2.1991, they are being disposed of together. The case of the claimants was that on 16.11.1988, the five deceased and four injured were travelling in taxi bearing No. PJQ-3601 driven by Nirmal Singh, one of the deceased. They were coming from village Baghana and proceeding towards village Jalupur Kher after muklava ceremony in a marriage. When they reached near village Dyalpur, bus bearing No. PJG-748 belonging to Punjab Roadways, Batala Depot, driven by Kulwant Singh-respondent No.1 came from the FAO No. 828 of 1991 -3- side of Batala at a very high speed due to which the bus driver lost the control and after coming to the wrong side of the road, struck against the taxi as a result of which five persons lost their lives while four received injuries. Even the taxi owned by Nirmal Singh was completely destroyed. Accordingly, the different sets of claimants prayed for the grant of compensation. Kulwant Singh-respondent No.1, driver of the offending bus, was proceeded against ex parte. However, respondents No.2 and 3 while filing their written statements took preliminary objections regarding maintainability of the claim petitions, as the accident had taken place not due to the rash and negligent driving by the bus driver but it was the car driver, who was rash and negligent and caused the accident. On merits, it was stated that the bus was being driven at a normal speed by its driver and when it reached near village Dyalpur, a car bearing No. PJQ-3601 came from Amristar side and while overtaking a three wheeler struck against the bus. After hearing learned counsel for the claimants and learned Government Pleader for the State and going through the evidence, the Tribunal came to the conclusion that the accident in question had taken place on account of rash and negligent driving of bus bearing No. PJG- 748 by its driver Kulwant Singh-respondent No.1. Accordingly, the claim petitions filed in respect of deaths of five persons and injuries FAO No. 828 of 1991 -4- received by four persons were allowed by granting them varied amounts of compensation. The claim petition filed by Paramjit Kaur and others in respect of damage to the taxi belonging to her deceased husband was dismissed on the ground that no evidence had been led to prove the damage to the said vehicle. I have heard learned counsel for the parties and perused the evidence with their able assistance. In order to establish that the accident in question had taken place due to rash and negligent driving on the part of Kulwant Singh- respondent No.1, the claimants had examined PW1 Phuman Singh. He had deposed that he was present at the place of the accident. Some Home Guard personnels were also present with him. He saw the ill- fated taxi coming from the side of Jalandhar. It was being driven at a slow speed and on its correct side. At the same time, the offending bus came at a very high speed. Its driver lost the control as a result of which it swerved to its right side and rammed into the taxi. As a result whereof, Nirmal Singh, Gurbachan Singh, Charanjit Kaur, Iqbal Kaur and Jugnu @ Amandeep Singh, occupants of the taxi, were killed at the spot while its remaining four occupants received injuries. The witness further stated that after the accident, he proceeded towards Police Station Subhanpur for lodging a report but on the way he came across SI Jagir Singh, who recorded his statement. FAO No. 828 of 1991 -5- The testimony of PW1 Phuman Singh had been fully corroborated by PW2 Jasbir Kaur, PW5 Sukhwinder Kaur and PW9 Jagjit Singh, who at the time of the accident were sitting in the taxi and had received injuries. On the other hand, the State did not produce any evidence. Even the driver of the offending bus did not step into the witness box to show that he was neither rash nor negligent in driving the bus or it was the taxi driver, who was responsible for causing the accident. In view of the above, no case is made out for interfering in the findings arrived at by the learned Tribunal on the issue of rash and negligent driving of offending bus by its driver Kulwant Singh. Coming to the amount of compensation to which the various sets of the claimants would be entitled to, the ten appeals filed by them and one by Punjab Roadways have to be taken up independently. FAO No. 828 of 1991 This appeal has arisen out of claim petition No. 8, which had been filed by the appellant for claiming compensation on account of death of his wife Charanjit Kaur. The claimant while appearing as PW9 testified that the deceased used to do the work of stitching and earning Rs.1500/- per FAO No. 828 of 1991 -6- month and also claimed Rs.1000/- for performing her last rites yet. As she had died before she could reach her husband's home, he was not even able to enjoy the marital life for a day. For that reason, he was awarded an amount of Rs.10,000/- as compensation and Rs.1,000/- for performing last rites. On the date of the accident, i.e. 16.11.1988, Section 92-A of the Motor Vehicles Act, 1939 was applicable as per which the claimant was entitled to receive an amount of Rs.15,000/- on the principle of 'no fault' where his or her family members had died as a result from an accident arising out of the use of a motor vehicle. This fact was not taken into consideration by the Tribunal. Over and above, the claimant was entitled to receive an amount of Rs.5,000/- for loss of consortium and Rs.1,000/- for performing last rites of deceased Charanjit Kaur. In all, he is entitled to receive an amount of Rs.21,000/- as compensation. Accordingly, the compensation amount of Rs.11,000/- awarded by the learned Tribunal is enhanced to Rs.21,000/-. FAO No. 829 of 1991 Regarding the death of Nirmal Singh, taxi driver, his wife Paramjit Kaur, son Inderjit Singh and mother Smt. Chint Kaur filed claim petition No.7. The Tribunal held that deceased Nirmal Singh was merely a FAO No. 828 of 1991 -7- driver and earning Rs.600/- per month. After deducting 1/3rd for his personal expenses, the net amount which he must be contributing to the claimants was assessed as Rs.400/- per month or Rs.4,800/- per annum. Multiplier of 16 was applied so as to grant an amount of Rs.76,800/- as compensation. An amount of Rs.10,000/- was also awarded to the claimants for having been deprived of the occasional supervision of the agriculture land by the deceased. In all, an amount of Rs.86,800/- was awarded as compensation. The assessment of the monthly income of deceased Nirmal Singh as Rs.600/- while working as a driver in the year 1988 was highly inadequate. The appellants had examined PW4 Joginder Singh, who testified that he had been plying taxi for the last 6/7 years and during the year 1988, he was earning Rs.3,500/- to Rs.4,000/- per month from the taxi business. He knew deceased Nirmal Singh, who used to park his taxi at the same place where he used to park his own taxi. In all reasonable estimation, the monthly income of deceased Nirmal Singh while working as a driver ought to be assessed at the rate of Rs.900/- per month and after deducting 1/3rd for his personal expenses, his net income has to be taken as Rs.600/- per month or Rs.7,200/- per annum. As the deceased was 26 years of age and so mentioned in the post mortem report Ex.P62, the multiplier of 18 has to be applied so as to calculate the total loss caused to the claimants on account of his death. The multiplier of 16 as applied by the learned Tribunal was on the lower FAO No. 828 of 1991 -8- side. Accordingly, while applying the multiplier of 18, the total loss suffered by the claimants on account of the driving operations comes to Rs.1,29,600/-. The claimants were not awarded anything on account of funeral expenses. Besides, Paramjit Kaur claimant was not granted any amount for loss of consortium. To my mind, the claimants are entitled to receive an amount of Rs.2,000/- towards funeral expenses while Paramjit Kaur appellant is also entitled to Rs.5,000/- for loss of consortium. Adding the amount of Rs.10,000/- already awarded by the Tribunal to the claimants for having been deprived of the occasional supervision of their land by deceased Nirmal Singh, the claimants/appellants would be entitled to receive a total amount of Rs.1,46,600/- as compensation. Thus, the compensation stands enhanced from Rs.86,800/- to Rs.1,46,600/-. FAO No. 830 of 1991 This appeal has arisen out of claim petition No. 14 in respect of the injuries received by Jasbir Kaur appellant. The Tribunal granted her an amount of Rs.1,235.30 Ps on account of hospitalization and medical expenses, as reflected in receipts Exs. P1 to P11, Rs.4470/- charged from her by PW10 Dr. H.S.Oberoi and Rs.5,000/- for pain and sufferings. In all, she was awarded an amount of Rs.10,705.30 Ps. FAO No. 828 of 1991 -9- It may be noticed that on account of the accident, Jasbir Kaur had sustained fracture of skull, nasal bone and right forearm. PW10 Dr. H.S.Oberoi had medically examined her and found five injuries on her person. Injury No.1 was a lacerated wound over right frontal region 4” x 3” bone deep contaminated, skull fractured at places, with fracture base of nasal bone with wound extending over the nose. Injury No.2 was a lacerated wound scalp, left frontal region 15” x .5” bone deep, contaminated. Injury No.3 was a fracture dislocation right forearm. The Tribunal had considered only fracture of right forearm of the appellant while awarding her compensation. No reference was made about the fracture of the skull which extended upto base of nasal bone. Under these circumstances, the appellant would be entitled to an enhancement of Rs.10,000/-. In all, she is held entitled to Rs.20,705.30 Ps as compensation. The compensation amount stands enhanced, accordingly. FAO No. 831 of 1991 This appeal has arisen out of claim petition No. 10, wherein the appellants had sought compensation on account of death of their mother Iqbal Kaur. The Tribunal awarded a sum of Rs.10,000/- to Satinder Kaur and Surjit Kaur appellants individually on the ground that they were minors and had been deprived of the facility of being looked after FAO No. 828 of 1991 -10- by their mother and for loss of love and affection whereas Jagjit Singh and Jaswinder Singh appellants were awarded a sum of Rs.5,000/- each for loss of love and affection. No evidence had been led by the appellants that there was any loss of income to them on account of death of Iqbal Kaur. Under these circumstances, nothing more can be granted to the appellants beyond the amount of Rs.30,000/-already awarded to them by the Tribunal. FAO No. 832 of 1991 This appeal has arisen out of claim petition No. 13 filed by the appellants wherein they sought compensation on account of damage to the taxi, which belonged to deceased Nirmal Singh. Though the taxi had suffered damage yet the appellants did not lead any evidence qua its ownership. Only receipt mark B was placed on the record showing that it had been purchased by Nirmal Singh for Rs.40,000/- on 16.7.1987 from one Romesh Kumar. Neither any affidavit of Romesh Kumar had been placed on record nor Romesh Kumar examined by the appellants. Even otherwise, no material had been brought on record regarding valuation of the damage caused to the taxi. Under these circumstances, no implicit reliance can be placed upon the testimony of PW3 Onkar Singh, Mechanic when he stated that FAO No. 828 of 1991 -11- he went to Police Station Subhanpur to inspect the taxi involved in the accident and came to the conclusion that it had been damaged extensively and in his view the damage was 100%. In view of the above, no relief can be granted to the appellants. FAO No. 833 of 1991 The parents of deceased Amandeep Singh filed claim petition No. 6 wherein they prayed for granting them an amount of Rs.2,00,000/- as compensation. Deceased Amandeep Singh was seven years old at the time of accident and a student of 2nd class. There was, thus, no question of the claimants being dependent upon him or entitled to recover the cash value of the prospective service of the deceased minor child or compensation for loss of pecuniary benefit reasonably to be expected after the child would have attained majority. However, after relying upon the Full Bench judgment in the case of Smt. Bimla Devi etc. V National Insurance Co. and another, 1988(2) P.L.R. 301(F.B), the Tribunal awarded an amount of Rs.6,000/- to the claimants as compensation. In paras 13 to 14 of the above decision, the Full Bench dealt with the case of child victim below five years and justified grant of FAO No. 828 of 1991 -12- Rs.6,000/- as compensation to the parents. In para 19, it was held that where the child victim was 12 years old and a student of 4th class, ends of justice would be met if a sum of Rs.15,000/- was awarded as compensation to the claimants. In the present case, the deceased was more than five years of age and a student of 2nd class. To my mind, the claimants would also be entitled to receive an amount of Rs.15,000/- as compensation. In view of the above, the amount of compensation stands enhanced from Rs.6,000/- to Rs.15,000/-. FAO No. 888 of 1991 This appeal has arisen out of claim petition No. 11 filed by Jagjit Singh injured. While appearing as PW9 Jagjit Singh had stated that he was an agriculturist and earning Rs.2,500/- to 3,000/- per month. He also owned a tractor which he used to plough his own land besides that of others. On account of the accident, he received injuries for which he remained in hospital for a period of one week and spent an amount of Rs.1,200/- on his treatment. He proved receipts Exs. P52 to P55 for a total amount of Rs.1,364.90 Ps as medical expenses. PW10 Dr.H.S.Oberoi stated that he charged Rs.1,070/- as his medical fee. The claimant was held entitled to Rs.1,364.90 Ps as medical expenses and FAO No. 828 of 1991 -13- Rs.5,000/- for pain and sufferings. In all, an amount of Rs.6,364.90 Ps was awarded. As Jagjit Singh had remained admitted in the hospital for a period of one week, he must have been required to arrange the services of some one for looking after his agricultural operations. A reasonable amount of Rs.30/- must have been spent by him everyday in that regard and, therefore, he was entitled to be granted an amount of Rs.210/- for one week. Similarly, the amount of Rs.5,000/- granted for pain and suffering is on the lower side and needs to be enhanced by Rs.1,290/-. Accordingly, he would be entitled to an enhancement of Rs.1,500/-. Thus, the amount of compensation awarded to him stands enhanced from Rs.6,364.90 Ps to Rs.7,864.90 Ps. FAO Nos. 889 of 1991 and No. 137 of 1993 Both the appeals have arisen out of claim petition No.9 where claimant Sukhwinder Kaur had sought compensation on account of the injuries received by her in the accident in question. The Tribunal awarded an amount of Rs.50,000/- to the claimant on account of permanent loss of hearing from the right ear and consequent impairment of her social and active life. Besides, she was awarded an amount of Rs.5,000/- for pain and sufferings, Rs.1,330/- as fee of the doctor and Rs.852.10 Ps on account of purchase of medicines. FAO No. 828 of 1991 -14- In all, she was awarded an amount of Rs.57,182/-. It has come in the evidence of PW5 Sukhwinder Kaur that in the accident, she received injuries on her head and on the right side of her face near the ear as a result of which she had become totally deaf from her right ear. PW10 Dr. H.S.Oberoi also deposed that he medically examined Sukhwinder Kaur on 18.11.1998 and she had suffered from head injury and loss of hearing. He had charged a sum of Rs.1,330/- as his medical fee. He had referred the claimant to Dr. Verma, ENT Specialist. Dr.Ravinder Verma while appearing as PW8 testified that the claimant was suffering from impairment of hearing of right ear. Special test for hearing was done. Despite the same, no response was found in the right ear on audiometry. It could be the result of an injury on the right ear. Under these circumstances, Rs.50,000/- awarded to the claimant for permanent loss of hearing and impairment of her social and active life was highly inadequate. The said amount deserves to be enhanced to Rs.75,000/- so as to award her a total amount of Rs.82,182 as compensation. Consequently, FAO No. 889 of 1991 has to be allowed by enhancing the compensation from Rs.57,182/- to Rs.82,182/- whereas FAO No. 137 of 1993 to be dismissed. FAO No. 890 of 1991 FAO No. 828 of 1991 -15- On account of death of their father Gurbachan Singh, the claimants filed claim petition No.15 and prayed for granting them adequate amount of compensation. The Tribunal held that the agricultural land owned by deceased Gurbachan Singh stood mutated in the names of the claimants and, therefore, what they had been deprived of was the managerial capacity of the deceased regarding his looking after the land. As the deceased Gurbachan Singh was 50/60 years of age and as he was having 1/4th share in 126 kanals 5 marlas of land, the claimants were entitled to receive an amount of Rs.500/- per month or Rs.6,000/- per annum for having been deprived of management of the land. The multiplier of 10 was applied so as to grant a total amount of Rs.60,000/- to the female claimants as compensation. After going through the evidence available on the file, I find that no case is made out for further enhancement of the aforementioned amount. However, at the same time the claimants can also be granted an amount of Rs.2,000/- for performing the last rites of the deceased and Rs.2,000/- for loss of estate. In all, they would be entitled to an additional amount of Rs.4,000/-. Resultantly, the compensation granted to the female claimants is enhanced from Rs.60,000/- to Rs.64,000/-. FAO No. 828 of 1991 -16- FAO No. 891 of 1991 Claimant Tarwinder Kaur had filed claim petition No. 12 wherein she had sought compensation for the injuries received by her in the accident in question. The Tribunal awarded Rs.5,000/- to the claimant for pain and sufferings and Rs.1,522.80 Ps as expenditure of medicines vide receipts Exs.P29 to P32 so as to grant her a total amount of Rs.6,522.80 Ps as compensation. The claimant was 14/15 years of age at the time of the accident and a student of 9th class. She suffered fracture of right arm besides receiving multiple injuries on her face and body. She was treated at Oberoi Hospital at Jalandhar where she remained admitted for fifteen days. Despite the same, nothing had been granted to her for the injuries received by her or for her matrimonial chances being affected due to those injuries. PW10 Dr. H.S.Oberoi while medically examining the claimant found fracture of her radius ulna right side, lacerated wound over chin and minor abrasions over scalp. Taking into consideration the totality of the circumstances, the Court is of the view that the claimant was also entitled to receive an amount of Rs.2,000/- on account of the injuries received by her and Rs.3,000/- on account of her matrimonial chances being affected because of the injuries. FAO No. 828 of 1991 -17- Therefore, the amount of compensation awarded to her by the Tribunal stands enhanced from Rs.6,522.80 Ps to Rs.11,522.80 Ps. Resultantly, FAO Nos. 831 of 1991, 832 of 1991 and 137 of 1993 are dismissed whereas FAO Nos. 828 of 1991, 829 of 1991, 830 of 1991, 833 of 1991, 888 of 1991, 889 of 1991, 890 of 1991 and 891 of 1991 are allowed to the extent indicated above. The claimants therein would be entitled to receive the enhanced amount of compensation alongwith interest @ 7.5 % per annum from the date of filing of the respective claim petitions till its payment. ( T.P.S. MANN ) April 27, 2010 JUDGE ajay-1