Judgment:
Archana arora FAO No.2419 of 1994 1 2014.02.12 16:26 I am the author of this document IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No.2419 of 1994 Date of decision February 5, 2014 Kailash Rani ....... Appellant Versus Ch. Mohinder Singh and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Malkeet Singh, Advocate for the appellants. Mr. Rajiv Dhawan, Advocate for the Insurance Company. **** 1. Whether reporters of local papers may be allowed to see the judgment ?. Yes 2. To be referred to the reporters or not?. Yes 3. Whether the judgment should be reported in the digest?.Yes K. Kannan, J (oral).
1. The appeal is against the dismissal of the petition claiming compensation for death of a male aged 40 years. The claimant was the wife. The deceased was said to be a factory worker and also engaged in dairy farming business and earning `1210/- and `1000/- respectively by the employment and the avocation referred to above. The accident was said to have taken place at the time when the deceased who was driving a scooter along with a pillion rider while turning from the main road attempted to tear away from a cyclist coming from the opposite direction and at that time the insured's tractor which was overtaking a car dashed against the scooter resulting in fatal fall of the scooter driver. The DDR which was said to have been recorded on the alleged statement FAO No.2419 of 1994 2 of the pillion rider who had made no reference to the tractor as having collided with the scooter but had merely made a reference to the scooter as having fallen down to save the cyclist. The driver and owner of the tractor had filed a written statement referring to the accident and collision but it was stated in the written statement that the accident had taken place on account of negligent driving of the scooterist.
2. The pillion rider gave a statement before the Tribunal in affirmation of the averments contained in the petition about the manner in which the accident had taken place and he also resiled from having made any statement to the police in the manner indicated in the DDR. The Insurance company took up a plea that the alleged collision of the scooterist with the tractor was a statement in collusion between the claimants and the insured and the involvement of the tractor was stated for the first time only in the claim petition to make the insurer liable.
3. The tribunal believed the statement in defence by the insurer that there was a collusion and applied of primacy of consideration to the recitals in DDR. The petition was accordingly dismissed. The appellant assails the finding and points out to the fact that the evidence placed before the Tribunal by the witness has been fully discarded and the tribunal has merely taken the entries in the DDR as final proof against the petitioner's version. The counsel for the insurer reiterates the contention already raised and supports the finding of the tribunal by pointing out that even the statement of the driver does not admit that there was any negligence on the part FAO No.2419 of 1994 3 of the driver of the tractor and attributes the negligence only to the deceased scooterist.
4. It has been laid down times without number that the issue of negligence and involvement of the vehicle are essentially questions of fact which the tribunal is bound to enter on the basis of evidence placed before it. If there was a person who claims as an eye witness but in the very nature of things ought to have been also an eye witness where the person was admittedly the pillion rider, then his statement can be discarded only through admissions or documents which are unimpeachable. If the eye witness resiles from the alleged statement as having been recorded in DDR and the Insurance company wants to plead a case of collusion between the claimant and the insured, to rely on the DDR itself as a solemn document to discard the claimant's contention begs the question of what the Tribunal is required to put in a situation where the document is denied. The minimum that the insurer is bound to do in such a situation is to summon the police official who is said to have recorded the statement and elicit the contradiction through the claimant's version through a statement recorded in the DDR. The DDR itself cannot be treated as evidence proprio vigore when the document is denied by the alleged author of the statement. The collusion is a question of fact and could be inferred from certain circumstances. If we must assume that the driver who admits the accident to be colluding with the claimant, then we will have only situations of every truthful accident also to be met with the situation when the driver must be denying the accident and force an FAO No.2419 of 1994 4 adjudication by the tribunal. That unfortunately has become the order of the day where insurance companies come with irresponsible pleas denying every accident and denying the involvement of the driver, that any person died and that any accident took place. A Bald statements of denial are dished out in court that force adjudication in every case where courts must be going towards settlement on a pro- active initiative of the insurance companies. The business of insurance companies is to pay and exclusion of liability shall be taken as exceptions. We have just a reverse situation obtaining in our courts where the largest volume of institution in any one jurisdiction is motor accidents. In no other part of the world are claims adjudicated the way they are done in India where every accident claim becomes a contention issue.
6. I am prepared to reconstruct the situation and see that it could not have been a full fledged negligent act of the driver of the tractor. A cyclist coming on the way where the scooterist seems to gotten jittery and swerved to one side, met with a situation of tractor coming from the opposite direction and colliding with the scooterist. I would apportion the negligence between the deceased scooterist and the tractor driver as 25:75 and proceed to determine the compensation by applying the scales laid down by the Supreme Court in Sarla Verma Vs.Delhi Road Transport Corporation reported in (2009) 6 SC121 7. On the basis of evidence adduced that he was working in a factory and also doing dairy business and also considering the fact that the accident had taken place in the year FAO No.2419 of 1994 5 1993, I will take the average income as `2500/- and apply a multiplier of 15 and determine the loss of dependency at `3 lacs. I would also add conventional heads of claim and tabulate the same as under:- Age 40 Date of accident 05/02/93 Occupation Factory worker, dairy business Claimants Wife Heads of claim Tribunal High Court ` ` ` 1 Income 1210/- 1210+1000 2 Add % of increase 2500 Less deduction 3 1/3rd 1666.66 4 Multiplicand 20000 5 Multiplier 6 Loss of dependence 3,00,000/- 7 Loss of consortium 10,000/- Loss of love and affection for 8 children 9 Loss of estate 2500/- 10 Funeral expenses 5,000/- Total 3,17,500 Making the partial abatement of 25% which have been attributed to the scooterist the total compensation payable shall be `2,38,125/- to the widow. The amount shall attract interest at the rate of 7.5% per annum from the date of petition till the date of payment. The liability shall be on the insurer.
8. The order of the tribunal is set aside and the appeal is allowed to the above extent. (K. KANNAN) JUDGE February 5, 2014 archana