FAO No. 2770 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 2770 of 2007 Date of decision 22.2.2010. Smt.Kiran Devi and others ...... Appellants. versus M/s United India Insurance Company and others ...... Respondents. Present : Mr. Sanjay Vashistha, Advocate for the appellants. Mr. Gopal Mittal, Advocate for respondent No.1. K.C.PURI. J. This is an appeal directed by the appellants-claimants for enhancement of the compensation amount awarded vide Award dated 4.12.2006 passed by Shri Rajneesh Bansal, learned Motor Accident Claims Tribunal, Faridabad. The case of the claimants in brief is that on 15.10.2001 at about 8.30a.m., deceased Narender Singh Raghav along with Ashok Kumar was coming on scooter bearing registration No.HNG-3428 from Sohna with a moderate speed and with valid and effective licence and when they reached at village Lakhuvas, ten steps from Hotel of Krishan Kumar, the offending Dumper/Truck bearing registration No.HYS 6160, being driven rashly, FAO No. 2770 of 2007 2 negligent, at a reckless speed, without adopting traffic rules and without blowing horn, coming from front and wrong side by respondent No.1, hit the scooter in question. As a result of which, the offending vehicle dragged the scooter and deceased upto a considerable distance and deceased and Ashok Kumar sustained serious, grievous and multiple fractures/injuries in the said accident and Narender Kumar received multiple injuries and fractures on head and other vital organs of his body. Both of them died at the spot due to accidental injuries. Their post mortem examination was conducted in Civil Hospital Gurgoan. Driver of the dumper fled away from the spot. FIR No.275 dated 15.10.2001 was registered against the driver under Sections 279, 304-A, IPC. The claimants preferred claim petition for grant of compensation. On notice, respondent No.3 filed written statement and took up preliminary objections that the claim petition is bad for misjoinder and nonjoinder of the necessary parties, the claimants have no cause of action and locus standi to file the claim petition, the petition was not maintainable in the present form, at the time of accident the alleged dumper was driven by a person who was not holding a valid and effective driving licence within the knowledge of respondent No.3 as such the same is breach of the terms and conditions of the policy and the respondent-Insurance Company is not liable to pay any claim and the petition deserves to be dismissed. Following issues were framed :- 1. Whether Narender Singh died in road accident on 15.10.2001 at 8.30a.m., at village Lakhuvas on account of rash and negligent driving of vehicle No.HYS -6160 by respondent FAO No. 2770 of 2007 3 No.1? OPP 2. Whether petitioners are entitled to compensation, if so, to what extent and from whom ?OPP. 3. Whether petition is bad for mis-joinder and nonjoinder of parties ?OPR. 4. Whether petitioners have no cause of action to file present petition ?OPR. 5. Whether petitioners have no locus standi to file present petition ? OPR. 6. Whether petition is not maintainable ?OPR. 7. Whether the respondent No.1 was not having valid and effective driving licence at the time of alleged accident ? OPR-3. 8. Relief. The parties have led their respective evidence. The Tribunal after hearing learned counsel for the parties, partly accepted the claim petition with costs and awarded Rs.1,45,400/- as compensation to be shared equally by the respondents along with interest @ 7% p.a. from the date of claim petition till realization. All the respondents were held liable t pay the amount of compensation jointly and severally. Feeling dis-satisfied with the aforesaid award, the claimants -appellants preferred this appeal. I have heard the learned counsel for the parties and have gone thorough the records of the case. FAO No. 2770 of 2007 4 The appellants have challenged the Award on the following two grounds :- (1)Finding on issue No.1 regarding contributory negligence are wrong ; and (2) the amount awarded is on lower side and prayed for enhancement. Learned counsel for the appellants, while assailing the first ground, has submitted that accident has taken place due to rash and negligent driving of dumper/truck No.HYS 6160 driven by its driver Younis. Narinder Singh Raghav, now deceased, was coming on scooter No.HNG-3428 from Sohna with a moderate speed. The offending vehicle without observing the traffic rules struck against the scooter on the wrong side. The driver of dumper/truck No.HYS 6160 was driven rashly and negligently and he dragged the scooter to a considerable distance. Ashok Kumar received injuries in the accident whereas Narinder Singh deceased received fracture on head and he later on succumbed to his injuries. It is further contended that Tribunal in para No.,10 of the Award has observed that the testimony of Rajiv Kumar, the sole eye-witness gone unrebutted and there is no reason to disbelieve him. The Tribunal has further held that driver of the dumper/truck has not come into the witness box and as such adverse inference should be drawn against him in view of authority Bhagwani Devi versus Krishan Kumar Saini and others 1986 ACJ 331. However, in the latter part of the judgment in para-11. The Tribunal has wrongly held that the accident has taken place due to contributory negligence of driver of dumper/truck and scooter. The driver FAO No. 2770 of 2007 5 of dumper/ truck has not come in the witness box and as such he could not dispute the manner of the accident. The Tribunal has rightly accepted the testimony of Krishan Kumar coupled with the FIR, in which it is categorically stated that scooter was dragged to a considerable distance. The Tribunal, should have not returned finding that accident has taken place due to contributory negligence of driver of scooter. So, prayer has been made for setting aside that finding and holding that accident has taken place due to rash and negligent driving of dumper/truck alone. The learned counsel for the Insurance Company has supported the judgment of the Tribunal. It is contended that the respondent has examined Mrs. Seema Kapoor (RW-2), Criminal Ahlmad, who has categorically stated that Imran Khan is accused in respect of accident in question and Younis is not the accused in that case. So, in these circumstances there is a doubt in the accident itself. So, prayer has been made for dismissal of the appeal. I have given my anxious contention to the rival submissions made by learned counsel for both the sides and have gone through the records. The Tribunal in paragraph No.10 of the judgment has given a clear cut finding that testimony of Krishan Kumar PW remained unrebutted. The driver of offending vehicle has not come into the witness box. So, adverse inference has been drawn against the respondents. However, in paragraph No.11 of the judgment, while discussing the manner of accident has held that since it is a head on collusion accident and as such it is a case of contributory negligence. That finding of the Tribunal does not sustain the FAO No. 2770 of 2007 6 test of legal scrutiny. Every head on collusion accident cannot be on account of contributory negligence. It is a civil case and has to be decided on preponderance of evidence. The claimants have examined Krishan Kumar eye-witness of the occurrence, who has supported the case of the prosecution. The prosecution has also proved the FIR Ex.P-1 which was scribed at the instance of this witness Krishan Kumar. In the said FIR, it has been categorically mentioned that a dumper/truck bearing registration No.HYS 6160 came from opposite direction at a very high speed which was being driven rashly and negligently and on wrong side. The said truck was brought on the wrong side and struck directly against the scooter and dragged the scooter to a considerable distance. The manner described in the FIR leaves no doubt except that accident has taken place due to rash and negligent driving of truck by its driver. The counsel for respondent- Insurance Company has challenged the judgment on the ground that in a criminal case Imran Khan is facing trial whereas according to the claim petition Younis is the driver of offending vehicle. However, the Tribunal has rightly held that even if the driver of offending vehicle is not arrayed in that case also the owner and Insurance Company cannot avoid their liability of payment of compensation amount. None of the driver of offending vehicle has come into the witness box to depose about the manner of accident. If according to the case of Insurance Company, Imran Khan was the driver of the offending vehicle, in that case, they could have produced said Imran Khan as witness and he could have deposed about the manner of accident. In view of the above discussion, the finding of issue No.1 FAO No. 2770 of 2007 7 stands modified and it is held that accident has taken place due to rash and negligent driving of dumper/truck bearing registration No.HYS 6160 alone. The Tribunal has taken the income of deceased as Rs.2700/- per month. The deductions have been made to the extent of1/3rd in respect of maintenance of deceased for himself and in this manner the monthly dependency has been taken as Rs.1800/-. The annual dependency has been taken by the Tribunal as Rs.21,600/- and the multiplier applied by the Tribunal at the age of 30 years is 13. The claimants were held entitled to claim Rs.2,80,800/-. The claimants were further held entitled to claim Rs.10,000/- for consortium and funeral expenses and in this manner the claimants were held entitled to claim compensation of Rs.2,90,800/-. So far as the income of the deceased, assessed by the Tribunal as Rs.2700/-per month, is concerned that does not call for any interference. The yearly dependency is taken as Rs.21,600/-. However, the multiplier applicable at that age in my view is on lower side. In view of Smt.Sarla Verma and others vs. Delhi Transport Corporation and Anr 2009 (3) R.C.R.(Civil) 77, multiplier applicable in the age group 30 should be 17. So, the multiplier is held to be applicable 17. The amount calculated in this manner is Rs.21,600 x 17 = Rs.3,67,200/- and Rs.10,000/- for consortium and funeral expenses etc. and in this manner the claimants are held entitled to claim compensation of Rs.3,77,200/-. So, in this manner, an amount of Rs.2,31,800/- stands enhanced in addition to the amount of Rs.1,45,400/- as awarded by the Tribunal. The enhanced amount of Rs.2,31,800/- shall be paid by the respondents along with interest @ 7% per annum from the date of filing the appeal till realization. FAO No. 2770 of 2007 8 With the modification as aforesaid, the appeal stands disposed of accordingly. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February 22nd, 2010 sv