IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1543 of 1995 (O&M) Date of decision:28.01.2011 Harbans Kaur and another ....Appellants versus Karnail Singh and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Jatinder J.C.Nagpal, Advocate, for the appellants. None for respondents 1 and 2. Mr. Jagtar Kureel, Advocate, for Mr. D.P. Gupta, Advocate, for respondent No.3. ---- 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 appeal is for enhancement of compensation at the instance of the parents of the deceased, who was 28 years of age. The deceased was driving a car, which collided with the insured's truck. The Tribunal found that there had been a case of contributory negligence and apportioned the liability between the driver of the truck and the deceased himself as 50:50. While assessing the compensation, the Tribunal took the dependency at Rs.800/- per month, adopted a multiplier of 18 and on the compensation amount found a partial abatement of 50% and awarded a compensation of Rs.86,400/-. FAO No.1543 of 1995 (O&M) - 2 - 2. While assessing the choice of multiplier and the extent of dependence, the Tribunal took note of the fact that for a person, who was 28 years of age, Schedule-II of the MV Act provides for an application of multiplier of 18 and determined the quantum subjecting it to an abatement. The issue of contributory negligence itself was appreciated from the point of view of fact that a witness, who had been called to support the case of the claimant, gave evidence to the effect that the deceased had suddenly taken a turn at the chowk without minding the truck coming on the main road which resulted in the collision. The Tribunal reasoned that the driver of the truck could not have anticipated that he would suddenly take a turn at the chowk. At the same time, the Tribunal also found that the car had been dragged to quite a distance which showed that there must have been an element of negligence on the part of the driver of the truck also. 3. The issue of discarding contributory negligence by reference to Section 163-A may not be possible in view of the fact that Section 163-A itself was brought on statute book only on 14.11.1994 and which was not retrospective as held by the decisions of the various Courts and particularly the decision of the Hon'ble Supreme Court in Maitri Kolej Versus New India Assurance Company-2004(1) ACJ 46 through it has been held that guidance from Schedule-II could be taken even while assessing damages. If the issue of contributory negligence itself cannot be set aside, I still reassess the compensation taking the income of the deceased at Rs.2,500/- per month and take the contribution to the family at Rs.1,250/- and adopt a multiplier of 14 as pertaining to the age of the FAO No.1543 of 1995 (O&M) - 3 - mother, who was the younger of the two. I will provide for additional amount of Rs.2,500/- for loss to estate and Rs.2,000/- for funeral expenses and find the total amount payable to be Rs.2,14,500/- and if 50% deduction were to be made for contributory negligence, the amount that would become payable would be Rs.1,07,250/-. The Tribunal had already awarded Rs.60,000/- as damage to the car and provided for Rs.30,000/- after partially abating the claim to 30%. The said sum also be added as the amount payable. Resultantly, there shall be an award for Rs.1,37,250/- in favour of the claimants and it shall be distributed equally between both the claimants as regards the increased portion of the award. (K.KANNAN) JUDGE 28.01.2011 sanjeev