IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3214 of 1999(O&M) Date of decision:28.02.2011 Surinder Kaur and others ....Appellants versus Bagicha Singh and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ashok Jindal, Advocate, for the appellants. Ms. Reeta Kohli, AAG, Punjab. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The petition for compensation for death of a police constable in an accident that had taken place on 29.07.1981 came belatedly through a petition filed as late as on 24.12.1997. The delay in filing of petition had been justified by the claimants by stating that there was no law of limitation in the Motor Vehicles Act of 1988 and, therefore, the petition could be entertained. Previously under the Motor Vehicles Act of 1939, the petition ought to have been filed within a period of 6 months and for reasons to be stated for a further period of 6 months. This period was extended for some time till it was completely omitted through an amendment brought to Section 166 of the Motor Vehicles Act. Previously as on 01.07.1989 when the Act came into FAO No.3214 of 1999(O&M) - 2 - force, a further period of 6 months have been provided and Section 166 (3) proviso was completely deleted by an amendment effective from 14.11.1994. The effect of this amendment had been the subject of several judicial pronouncements with divergent views and the law was finally settled with the decision of the Hon'ble Supreme Court in Dhannalal Versus D.P.Vijayvargiya and others-(1996) 4 Supreme Court Cases 652 where it was held that if a petition had not been filed before the 1988 Act, a petition could not be filed even for accidents that had occurred earlier. The issue of limitation itself was not taken up at the time of trial but the Tribunal chose to dismiss it on the ground that rashness and negligence of the driver had not been established. It was a case where the jeep was on a hot chase to conduct a police raid in the wee hours of the morning at 2 o'clock in the year 1981 when the jeep in which the deceased was travelling capsized and the constable travelling in the jeep suffered fatal injuries. In the cross-examination of one of the witnesses, the admission was that the accident had taken place on account of the mechanical failure of the jeep and this was understood by the Tribunal as excluding the possibility of rashness and negligence. 2. It shall be wrong to assume that negligence must be only of driving. Negligence by the owner of even a proper upkeep will give rise to a valid cause of action under the Motor Vehicles Act. I would take even if the petitioner's claim could be seen only through the admission of his own witness, I would not take this to be an exculpatory situation for a State to plead that it will not be liable for compensation. The logsheet for maintenance of the jeep must have been produced before the Court if FAO No.3214 of 1999(O&M) - 3 - the State was trying to contend that the vehicle had been properly maintained, but still an accident had taken place for no latent and patent defects. I will place the burden on the State to answer a res ipsa loquitur situation and hold also the State to be responsible for satisfying the claim for compensation. 3. We have reasonably certain scales of determining compensation in the light of law laid down by the Hon'ble Supreme Court in Sarla Verma and others Versus Delhi Transport Corporation and another 2009(6) SCC 121 and I will tabulate the compensation on that basis by making due provision for a prospect of increase in salary as well and tabulated as follows:- Sr.No. Heads of claim High Court Amount (Rs.) 1. Income 2000 2. Add, % of increase 50% 1000 3. Deduction (¼) 2250 4. Multiplicand 2250x12 5. Multiplier 15 6. Loss of dependence 4,05,000 7. Loss of consortium 10,000 8. Loss to estate 5,000 9. Funeral expenses. 2,500 _______ Total 4,22,500 4. The case was grossly belated and I find no excuse for such a delay except that the claimants had contended that there was no bar of limitation. There ought to have been an explanation for the delay. I can only conjecture one; that the first claimant's wife was granted a job FAO No.3214 of 1999(O&M) - 4 - in the police department. There are firmly well established legal precedents to the effect that even a compassionate appointment cannot be factored for reduction of the claim unless in terms of the law laid down by the Hon'ble Supreme Court in BBMB Versus Kanta Aggarwal-2008 (11) SCC 366 , the claimant receives some specific benefits arising out of the death which could be factored at the time of compensation. I have no such additional details but I take the salary that she earns through such compassionate appointment is a quid pro quo for her services and cannot cause any abatement of claim for compensation arising out of death of her husband. The amount determined shall become payable with interest from the date of disposal of the petition before the Tribunal at 6% till date of payment. The amount shall be distributed amongst the claimants equally. The liability shall be in the same manner as determined by the Tribunal. 5. The appeal is allowed to the above terms. (K.KANNAN) JUDGE 28.02.2011 sanjeev