FAO No.836 of 1989 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.836 of 1989 DATE OF DECISION: February 17, 2011 LILLA RAM ...APPELLANT VERSUS ASHOK KUMAR AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? No 3. Whether the judgement should be reported in the digest? No ---- PRESENT: MR. ASHIT MALIK, ADVOCATE FOR THE APPELLANT. NONE FOR RESPONDENTS NO.1, 2 AND 4. MR. INDERJIT SHARMA, ADVOCATE AND MR. PARDEEP BEDI, ADVCOATE FOR RESPONDENT NO.3. K.KANNAN, J.(ORAL) 1. The appeal is for enhancement of claim of compensation in a case where a person who was travelling in a truck driven by her son died. The accident had taken place on a collision with a car coming from the opposite direction. The owner-driver of the truck was the son of the deceased and he had given the evidence to the effect that the accident had taken place when the car hit the rear right side of the truck and in the severe impact the tyre rolled out and the truck capsized. The car itself had taken a full spin and turned 180 degrees in the same direction from which it was coming. The attempt was, therefore, to show that the driver of the car was alone negligent and in any event he had come at such a speed that the FAO No.836 of 1989 -2- impact had caused the tyres to be disengaged from its axle and the car itself had taken 180 degrees turn. This evidence was supported by the cleaner of the truck who was travellling at the same time. The driver of the truck had also complained that the car owner was an influential person and therefore, he was able to register a case against him and he had filed his own case against the driver of the car. 2. The driver of the car was also examined and he stated that the accident had taken place when the truck was trying to overtake yet another truck and the collision had taken place by his reckless driving even when he saw that there was a vehicle coming from the opposite direction. The Tribunal accepted the evidence of the driver of the car and held that the truck driver alone was responsible for the accident and proceeded to dismiss the claim petition filed at the instance of the husband of the deceased. 3. In my view, even if the accident had taken place at the time when the truck was overtaking yet another truck, a collision at the rear back portion of the wheel would only show that the driver of the car was also coming at a fast speed. It should have been possible even against an irresponsible driver, coming from the opposite direction and overtaking yet another vehicle, when there was no time or space for the car driver, to have stopped the vehicle or reduced the speed to avoid the collision. Without a very serious impact the axle could not have been broken and the car could not have turned 180 degrees. The truck itself had capsized. I would, therefore, find that even if the driver of the car was not wholly responsible for the accident, he had contributed in some way to the accident and as far as the claim was concerned it was a case of composite negligence of the driver of the truck and the driver of the car. FAO No.836 of 1989 -3- 4. In case of composite negligence a claim by a third party or a passenger of one of the vehicles will have a right of recourse against anyone of the tort-feasors. On such a basis it shall be possible to pursue a claim against the owner and the driver of the car and also make insurer liable for the claim emanating from the same. The deceased who was a housewife and the claimant was husband, I am prepared to value the services of the wife at the relevant time of accident at `1000/- and take the contribution of her services to her husband at `750/-. I will adopt a multiplier of 13 and the loss of dependency will be `1,17,000/-. I will further make a provision of `5000/- towards loss of consortium to the husband and another `2500/- for funeral expenses. In all the total amount of compensation will be `1,24,500/-. The Tribunal had awarded `15,000/- on No-fault basis and this would mean an additional amount which would bear interest @ 6% from the date of petition till the date of payment. 5. The car had been insured as a commercial vehicle and the policy terms provide for a limit of liability in the manner provided under the Motor Vehicles Act of 1939. In terms of Section 95(2)(b), the liability shall stand restricted to `50,000/-. The amount in excess of the claim over `50,000/- with interest will be recoverable against the owner and driver of the car who have been arrayed as respondents No.1 and 2. 6. The appeal is allowed to the above extent. February 17, 2011 (K.KANNAN) Gulati JUDGE