IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3644 of 2009(O&M) Date of decision:23.11.2010 Hemlata Sharma and others ....Appellants versus Gurmit Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. R.S.Mamli, Advocate, for the appellants. Ms. Vandana Malhotra, Advocate, for the Insurance Company. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The appeal is for enhancement of compensation for death of a 52 years old man at the instance of a widow and two major children, one of them being an unmarried daughter, aged 23 years. The claimant also spoke about the fact that he was a renowned astrologer and was doing a business in dairy farming and that he was earning Rs.20,000/- per month. 2. The accident is said to have taken place when the deceased was traveling in a scooter along with PW1 his son and when he was negotiating a curve, there was a truck, which was coming in the opposite FAO No.3644 of 2009(O&M) - 2 - direction. He applied the brakes and took it to the extremity of the road when he dashed against a stationary truck and on account of collision, he fell down and suffered fatal injuries. In the manner in which the incident was narrated, the Tribunal found that the deceased himself had been responsible for the accident and awarded compensation on the basis of no fault at Rs.50,000/-. 3. The learned counsel for the appellant would contend that the driver of the truck did not examine himself to controvert the evidence placed by PW1, who had spoken about the fact of the vehicle being parked in the proximity of a curve and that it was on the metal portion of the road itself. There are two aspects of the situation that weighed with the Tribunal: (i) the plea by the claimant that the driver had not placed sticks or boulders to bar any vehicle from hitting against the stationary vehicle would have no meaning in view of the fact that the accident had taken place in the day light at 3 PM; and (ii) the fact that there were no sticks, stones or boulders, was immaterial. It also took note of the fact that there was no need for indicator at the rear side of the vehicle since the accident had taken place in broad day light. 4. I cannot take such a wide proposition in the manner in which the Tribunal had dealt with. A stationary vehicle could also be dangerous if there was no indication that the vehicle was stationary. A person coming in any other motor vehicle could also normally expect any other motor vehicle in front to be moving and if it is stationary, there ought to be sufficient indication that the vehicle is stationary. It is possible by either placing boulders like it is normally done in villages FAO No.3644 of 2009(O&M) - 3 - and towns or by having parking lights that blink to indicate that it is stationary. A vehicle dashing against a stationary vehicle definitely brings an inference that the driver of the vehicle who dashes against a stationary vehicle had been negligent but it is only one side of the story. The fact that the vehicle had not been kept recklessly in any portion of the road or that there was no indication that the vehicle was stationary must be brought out cogently through evidence. In this case, the driver has not examined himself nor was any explanation offered as to why he was not examined. Against the evidence of PW1, who spoke about the precarious location of the truck where it was stationary, I would attribute the negligence of the truck to be resting in equal measure as the person who was driving the vehicle and dashing against it from the rear side. Therefore, I would apportion the liability between the deceased who was driving the scooter and the driver of the stationary truck as 50:50. 5. As regards the quantum of compensation, apart from the oral assertion that the deceased was earning Rs.20,000/- per month, there was no other documentary evidence found. It was elicited in the cross- examination of PW1 that there was no diploma or certificate for his proficiency in astrology nor was there any documentary proof of his carrying on a business in dairy farming. At least it must be seen that he was supporting a family of four persons even apart from himself and three had grown as adults. The wife and the unmarried daughter were certainly dependents. The learned counsel for the appellant would state that the accident took place in 2008 and he would have earned at least Rs.5,000/- to support a large family. I would take that he would have FAO No.3644 of 2009(O&M) - 4 - earned Rs.4,000/- per month and would have spent at least 1/3rd of the same. I would take the annual contribution to the family at Rs.32,000/- and adopt a multiplier of 11 as applicable to his age at 52 years and take the amount of loss of dependence at Rs.3,52,000/-. I will add Rs.5,000/- towards loss of consortium, Rs.5,000/- towards loss to estate, Rs.2,500/- for funeral expenses and take the total loss to Rs.3,64,500/-. In view of the fact that I have found the deceased to be contributed to the accident in equal measure, this will result in abatement of claim to the extent of 50% and the amount that would be payable will be Rs.1,82,250/-. The amount in excess over what has been determined by the Tribunal shall bear interest at 6% from the date of petition till date of payment. The counsel for the claimants seeks for a larger apportionment to the widow and I would provide out of the amount which I have determined to go to the widow to the extent of Rs.1 lakh and the remaining amount to be shared equally between the son and the daughter. The interest accruals for the respective amounts determined shall go in the same proportion at which the amount had been split amongst the claimants. The appeal is allowed to the above extent. (K.KANNAN) JUDGE 23.11.2010 sanjeev