FIRST APPEAL 4209 of 2004 on 22 May 2002

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

F.A.O. No. 4209 of 2004 and Cross Objections No. 55.CII of 2005Date of decision: August 06, 2014

Gurdip Kaur and others

...Appellants

versus

Gurjant Singh and others

...Respondents

Coram:Hon'ble Mr. Justice Fateh Deep Singh Present:Mr. Tribhawan Singla, Advocate for the appellants Mr. Ravinder Arora, Advocate for Insurance Company-CrossObjector Fateh Deep Singh,J.

As both these matters one by way of first appeal and the otherbeing cross-objections have arisen out of the same very award dated19.7.2004 of the Motor Accident Claims Tribunal, Barnala and thus arebeing disposed of together for the sake of brevity. The claimants-appellantshave sought enhancement of the compensation whereas the objector-insurerclaims that they need to be absolved of the liability to pay compensation.

Briefly the averments are that on 22.5.2002 Sukhpal Singhdeceased was going on his motorcycle make Kawasaki bearing registrationNo. PB-10-AD-5169 (in short ill-fated motorcycle) from Mehal Kalantowards Barnala in the area of Police Station Mehal Kalan offending truckbearing registration No. RJ-31-G-2506 came from the opposite side beingdriven rashly and negligently by Gurjant Singh and struck against ill-fatedmotorcycle resulting in injuries and death of the deceased. It is the claim ofthe claimants who are the widow, minor children and aged mother that thedeceased was working as a government teacher in Senior Secondary School,Kaleke earning Rs 11,000/- per month upon which the claimants weredependent and hence sought compensation for their destituteness. Thedriver and the owner denied the accident and invariably the insurer. TheTribunal awarded a sum of Rs 4,37,500/- along with interest @ 6% perannum. The owner, driver and the insurer were jointly and severally heldliable to pay the compensation.

After hearing at length Sh. Tribhawan Singla, counsel for theappellants and Sh. Ravinder Arora, counsel for the insurance company-crossobjector, the owner as well as driver have not assailed the findings on issueno. 1 as to the manner of the accident which has been held to be on accountof rash and negligent driving of the driver of the truck and thus has attainedfinality. Thus the only remnant question that needs adjudication is invariable quantum of compensation and the liability of the insurer. Theinter-se relationship though not denied is well highlighted in the testimonyof Gurdip Kaur as AW3. The avocation of the deceased is highlighted byAW1 Surjit Singh, Junior Assistant, Government Senior Secondary School,Kaleke who has testified that the last pay drawn by the deceased was to thetune of Rs 9048/- per month and has proved this entry as Ex. A1. It hasbeen elaborated in this cross-examination that the carry home salary of thedeceased was Rs 6815/- per month after necessary deductions. Learnedcounsel for the objectors squarely accepts that there is no evidence ledotherwise to contradict this fact as well as the qualification of the deceasedwho was BA, B.Ed and keeping in view that if the deceased had been alive,he must be spending some amount for his own upkeepment and expensesand in all likelihood must be contributing Rs 4600/- per month to therunning of the house hold which is a reasonable amount in this period ofrising trend of prices. Therefore, the annual dependency comes to Rs55,200/-. The deceased at the time of his death was having a son agedaround two years and daughter aged around 2 months and has left behind ayoung widow aged around 24 years. The deceased himself as per postmortem report is shown to be aged around 34 years which apparently as percommon knowledge is the peak of one's career and earning capacity. Thelearned Tribunal as has been submitted by the appellants' counsel Sh.

Tribhawan Singla has on pure un-authenticated apparently on a premise hasheld that the personal expenses of the deceased must be around 50% whichis contrary to the established norms and is highly un-justified. More so,even the multiplier applied by the Tribunal of 12 is apparently on the lowerside. In view of the economic status of the claimants and the deceased aswell as their relative ages, it would subserve the ends of justice, if multiplierof 15 is applied and therefore, compensation on this score comes to Rs8,28,000/-. The young widow has lost a life companion, small kids theirfather a source of love and protection and aged mother a source of joy andsustenance though no amount of compensation can assuage the feeling ofwrong done of the fathomless miseries the family might have undertakenwhich would have its impact on the future upbringing of the entire familyincluding the kids. Thus under all these factors like loss of estate, loss ofconsortium, love and affection including funeral expenses which theTribunal has failed to consider and has only allowed a pittance amount of Rs5000/- on account of loss of consortium, this Court thus awards a sum ofRs 2 lakh. Thus, total compensation comes to Rs 10,28,000/- (Ten lakh andtwenty eight thousand). The findings on issue no. 3 are accordinglymodified. However, rate of interest need not be disturbed. The interimcompensation, if any, shall be adjusted. Rest of the stipulations in the awardremains the same. If any of the minors have attained majority, their share shall not be put up by way of FDRs.

The very liability of the insurer needs to be appreciated in thelight of insurance cover Ex. R5 which shows that at the time of allegedaccident the truck was insured under insurance cover of the objector-insurer.The driver has placed on record his licence as Ex. R2 which depicts as isapparent from the discussion on issue no. 4 was in respect of light transportvehicle and the offending truck is shown to be a heavy transport vehicle andtherefore, a clear cut violation of sections 3 and 4 of the Motor VehiclesAct, 1988 (in short, Act). Neither the driver nor the owner who are bothcontesting have ever stepped into witness box and therefore, it is theresponsibility of the owner in terms of section 5 of the Act to ensure that noperson who is not in possession of a valid and effective driving licencedrives the vehicle and which is inviting penal consequences in terms ofsection 181 of the Act. The learned Tribunal inspite of all theseobservations has not drawn comprehensive conclusion on issue no. 4. Inthe totality of the evidence, it needs to be held that in view of the primafacie insurance cover, the claimants are entitled to recover the compensationamount from the owner, driver and insurer jointly and severally. Insurer isat liberty to recover the compensation amount from the driver and ownerjointly and severally and thus the insurer is bestowed with recovery rightsand issue no. 4 thus is disposed of in those terms.

No other argument was raised.

In view of the foregoing discussions, appeal of the claimantsbearing FAO No. 4209 of 2004 is allowed and award is accordinglymodified and Cross Objections No. 55.CII of 2005 of Insurer are partlyallowed in aforesaid terms.

August 06, 2014'tiwana'

( Fateh Deep Singh )

Judge