F.A.O.No.2043 of 1997. -1- In the High Court of Punjab & Haryana at Chandigarh. F.A.O.No.2043 of 1997. Date of decision:8-5-2008 Sitara Umed Singh Bankey Lal and others. ...Appellants. Versus Deepak Kumar and others. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. Gurmail Singh Advocate for the appellants. Mr. V. Ram Swaroop Advocate for respondent No.3- Insurance Company. ... K. C. Puri, J. Judgment. The Motor Accident Claims Tribunal, Gurgaon, vide its award dated 12.6.1997 awarded compensation of Rs.1,95,000/- to the claimants for death of Umed Masih in a motor vehicle accident. The learned Tribunal also awarded interest at the rate of 12% per annum from the date of institution of the petition i.e. 18.4.1995 till realization. The claimants were also awarded costs of proceedings which were F.A.O.No.2043 of 1997. -2- assessed at Rs.1000/-. The amount of compensation along with costs and interest were ordered to be paid to the claimants in equal shares. The respondents were jointly and severally held liable to pay the said amount. Feeling dis-satisfied with the quantum of compensation, the claimants have filed this appeal in this Court for enhancement. The necessary facts leading to the filing of claim petition under Section 166 of the Motor Vehicles Act by the claimants are that on 26.3.1995 at about 8.45 P.M, Arun Aggarwal son of Shri R.C.Aggarwal was talking with one Sunil Kumar in front of their shop situated opposite to Union Bank of India, on New Railway Road, Gurgaon. Umed Masih came from the side of bus stand on scooter No.DDH-1663 at a normal speed and while he was negotiating a turn towards right side in order to go to his house situated in Adrash Nagar, Gurgaon, scooter No.DBZ-8237 being driven by respondent No.1 in a rash and negligent manner, came from the side of Railway Station, Gurgaon i.e. opposite direction and struck against the scooter of Umed Masih. As a result of accident, Umed Masih sustained injuries .While Arun Aggarwal and Sunil Kumar were busy in shifting the deceased to the General Hospital, Gurgaon, Deepak Kumar, respondent No.1 ran away after leaving his scooter at the spot. Arun Aggarwal lodged a report about with the accident with the police. Umed Masih succumbed to his injuries in Safdarjang Hospital, Delhi. The scooter of the F.A.O.No.2043 of 1997. -3- deceased was badly damaged in the accident in question. The claimants averred that Umed Masih, aged 52 years, was employed as a teacher in Government Higher Senior Secondary School, Mahipalpur, Delhi and was getting Rs.6,650/- per month as salary. The claimants have claimed Rs.15 lacs as compensation in respect of death of Umed Masih and Rs.7,000/- on account of damage caused to the scooter. Deepak Kumar, respondent No.1, in his written statement denied the involvement of the scooter in question in the accident. However, he pleaded that the scooter in question was owned by respondent No.2 and was insured with New India Assurance Company Limited,respondent No.3, at the time of alleged accident. He denied all other allegations contained in the claim petition in respect of age and income of the deceased as well as dependency of the claimants on the deceased. M/S Jain Camar Private Limited, respondent No.2, in its separate written statement, while admitting the accident in question has alleged that the same was caused due to own rash and negligent driving of the scooter by the deceased himself because the deceased, all of a sudden, without giving any indicator, took a turn towards his right side in order to go to Adrash Nagar, Gurgaon and struck against the scooter of respondent No.1 who was coming on his correct left side on double road from the side of Railway Station, Gurgaon. In the alternative, it F.A.O.No.2043 of 1997. -4- was pleaded that, in any case, the accident was the result of contributory negligence of the drivers of both the scooters. Respondent No.2 also denied all other allegations of the claimants. New India Assurance Company Limited, respondent No.3, in addition to the pleas taken by respondent Nos.1 and 2, in separate written pleaded that since respondent No.1 was not having a valid driving licence at the time of accident, the Insurance Company was not liable to indemnify the insured. From the pleadings of the parties, the learned Tribunal framed the following issues:- 1. Whether Umed Masih Bankey Lal died as a result of rash and negligent driving of Scooter No. DBZ-8237 by its driver Deepak Kumar, respondent No.1 ?OPP. 2. Whether the claimants are the legal heirs/representatives of the deceased ?OPP. 3. Whether respondent No.1 was not holding a valid driving licence at the time of accident. If so, to what effect ?OPR3. 4. To what amount of compensation, the claimants are entitled to and against whom? 5. Relief. Under issue No.1, the learned Tribunal held that Umed Masih had died as a result of his own rash and negligent driving of F.A.O.No.2043 of 1997. -5- scooter No. DDH-1663 and that of scooter No. DBZ-8237 by Deepak Kumar, respondent No.1 and their negligence was apportioned as 2:1 i.e. two third of the deceased himself and one third of Deepak Kumar, respondent No.1. Under issue No.2, it was held that the claimants are the legal heirs/ representatives of the deceased. Issue No.3 was decided against the Insurance Company by holding that Deepak Kumar, respondent No.1 was holding a valid driving licence at the time of accident in question. Under issue No.4, the claimants were held entitled to a compensation of Rs.1,95,000/-. Feeling aggrieved against the finding of contributory negligence, the claimants have preferred the present appeal. I have heard arguments addressed by the counsel for the parties and have gone through the record of the case. The parties have restricted their arguments in respect of issue No.1 alone. The learned counsel for the appellants has submitted that the appellants have specifically pleaded that the accident has taken place due to rash and negligent driving of scooter No.DBZ-8237 by respondent No.1. To prove that issue, the claimants have examined PW-3 Arun Kumar Aggarwal, author of the FIR, Exhibit P-2. This witness has categorically stated that the accident has taken place due to rash and negligent driving of scooter No.DBZ-8237 by Deepak Kumar, respondent No.1. He has further stated that at the time of accident, Deepak Kumar struck his scooter against the scooter of Umed Singh by F.A.O.No.2043 of 1997. -6- bringing the scooter on wrong side. This witness has denied the suggestion made to him that the accident has taken place due to rash and negligent driving of scooter by Umed Singh. FIR, Exhibit P-2, corroborates the version of the claimants. The learned Tribunal, after relying upon the pleadings of respondent No.2, held that the accident has taken place due to contributory negligence of Umed Singh and Deepak Kumar to the extent of 2:1. There is no evidence on the file produced by the respondents that the accident has taken place due to contributory negligence of Umed Singh. Deepak Kumar, who was the best witness to depose about the accident, has not come into the witness-box to state that the accident has taken place due to negligence of Umed Singh. So, Deepak Kumar has not even pleaded the factum of contributory negligence but has totally denied the accident in the written reply filed by him. Therefore, the finding of the learned Tribunal to the effect that Umed Singh is contributory negligent to the extent of double as that of Deepak Kumar is liable to be set aside. In reply to the above noted submission, the learned counsel for respondent No.3 has supported the award. It is submitted that it was a case of head on collusion and Umed Singh has taken a turn. The learned Tribunal has rightly held that the accident has taken place due to rash and negligent driving of Umed Singh. I have carefully considered the rival submissions made on behalf of both sides and have gone through the record of the case. F.A.O.No.2043 of 1997. -7- The learned Tribunal has taken the dependency of claimants at Rs.53,200/- per annum and applying a multiplier of 11, the amount of compensation has been assessed at Rs.5,85,200/-. However, since Umed Singh has been held negligent, on that count, only an amount of Rs.1,95,000/- has been awarded to the claimants. The remaining amount has not been awarded, in view of contributory negligence of Umed Singh which, according to the Tribunal, is double as that of Deepak Kumar. Now, the question that arises is whether the finding of the Tribunal that the accident has taken place due to contributory negligence of Umed Singh, deceased, sustains the test of legal scrutiny. The answer to that question is in the negative. It is a civil case and the same has to be decided on preponderance of evidence. The claimants in para No.24 of the petition have pleaded that the accident has taken place due to rash and negligent driving of scooter No.DBZ-8237. Deepak Kumar, in reply to para No.24, has simply denied the accident and has stated that the FIR has been wrongly registered against him. He has not taken the plea of contributory negligence in the written reply. Of course, respondent No.2 has pleaded that the accident has taken place due to rash and negligent driving by Umed Masih Bankey Lal while driving his scooter No. DDH-1663 and in the alternative, plea of contributory negligence has been taken. F.A.O.No.2043 of 1997. -8- The claimants have examined Arun Kumar Aggarwal, PW- 3 whose testimony is re-produced, in order to properly appreciate the facts of the case as under:- “About 1-1/2 years ago, in the months of November or December, at about 8.45 P.M, I along with my friend Sunil Kumar, were standing on New Railway Road, Gurgaon, in front of Union Bank of India. Umed Singh came from the side of Bus Stand, Gurgaon, while driving scooter No.DDH-1663 and was taking a turn towards Adrash Nagar, Gurgaon. He had already taken the turn towards Adrash Nagar, Gurgaon and when he reached on the corner, scooter No. DBH-8237 came from the side of Dr. Lal Nursing Home. The said scooter was being driven by Deepak Kumar at a rash and negligent and fast speed. Said Deepak Kumar hit his scooter against the scooter of Umed Singh after going on wrong side. The accident in question was caused due to rash and negligent driving of the scooter by Deepak Kumar. I lodged the FIR, copy Exhibit P-2. xxxxxxxxxxby Sh. D. N. Mangla, Advocate. In front of Union Bank, Gurgaon, there is divider in between the road. There is a gap in verge between the road, in front of Union Bank of India. The said divider between the road is about 3-3-1/2 feet wide. I had seen the scooter of F.A.O.No.2043 of 1997. -9- Deepak Kumar when it was at a distance of about 100 feet from the gap in road. The scooter driven by Umed Singh was about 18-20 feet from the gap, towards Adrash Nagar, from the gap in road. It is incorrect to suggest that the scooter driven by Umed Singh took a turn all of a sudden towards right side or that the accident was caused due to rash and negligent driving of scooter by Umed Singh himself. There is one way traffic on the road where the accident had taken place. xxxxxxxxxxby Sh.J.P.Bhardwaj, Adv. Nil. (Opportunity given) RO&AC. Sd/-MACT,Gurgaon. 13.5.1996. Arun Kumar Aggarwal, PW-3 is the author of the FIR, Exhibit P-2. In the FIR also, it has been categorically stated that the accident has taken place due to rash and negligent driving of scooter No. DBZ-8237. Arun Kumar Aggarwal further stated in the Court that Umed Singh has taken a turn towards Adrash Nagar and reached near the corner and thereafter scooter No. DBZ-8237 came from the side of Dr. Lal Nursing Home. He further stated that Deepak Kumar was driving the scooter rashly and negligently and at fast speed. Deepak Kumar hit his scooter against the scooter of Umed Singh, after going on wrong side. He has denied the suggestion that the accident has taken F.A.O.No.2043 of 1997. -10- place on account of the fact that Umed Singh took a turn, all of a sudden towards right side. The testimony of PW-3 Arun Kumar Aggarwal goes un-rebutted. Deepak Kumar, who was the best witness to deny the manner of accident, has not come into the witness-box. Deepak Kumar has not taken the stand of contributory negligence in his written statement nor has appeared in the witness-box to state that the accident has taken place due to rash and negligent driving of scooter in question by Umed Singh. No other evidence has been produced by the respondents to rebut the testimony of PW-3 Arun Kumar Aggarwal. In the FIR also, it has been mentioned that the accident has taken place due to rash and negligent driving of scooter No.DBZ-8237 by its driver. The learned Tribunal, without discussing the pleadings of the parties and on assumption has held that the accident has taken place due to contributory negligence of Umed Singh and Deepak Kumar and that the negligence of Umed Singh was double as that of Deepak Kumar. The learned Tribunal itself has held in para No.6 of the award that the respondents have led no evidence in rebuttal. The Tribunal has has held that from the testimony of Arun Kumar Aggarwal, PW-3, it be concluded that it is a case of head on collusion and that it was the duty of Umed Singh to wait for the traffic coming from the opposite side on the double road. The said finding has been given by mis- interpreting the testimony of PW-3 Arun Kumar Aggarwal. Arun Kumar Aggarwal has no where stated that it was a case of head on F.A.O.No.2043 of 1997. -11- collusion. He has stated that Deepak Kumar struck his scooter against the scooter of Umed Singh. So, in these circumstances, the finding of learned Tribunal that the accident has taken place due to contributory negligence of Umed Singh does not sustain the test of legal scrutiny and stands set aside. Consequently, it is held that the accident has taken place due to rash and negligent driving of scooter No.DBZ-8237 by Deepak Kumar, respondent No.1. In view of the above discussion, the appeal stands partly accepted. The finding of Tribunal regarding contributory negligence of Umed Singh stands set aside and it is held that the accident has taken place due to rash and negligent driving of Deepak Kumar alone. It is held that the claimants are entitled to claim an amount of Rs.5,85,200/- as assessed by the Tribunal,while deciding issue No.4. The Tribunal has assessed interest at the rate of 12% from the date of institution of the petition till realization. However, keeping in view the latest trend of authorities and the Bank rate, the claimants are held entitled to claim interest at the rate of 9% per annum on the balance amount of Rs.3,90,200/-. The findings of the Tribunal on remaining all the issues stand affirmed. May 8 ,2008. ( K. C. Puri ) Jaggi Judge