Present: Mr. R.S. Sangwan Advocate Vs. Narender and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1090557
CourtPunjab and Haryana High Court
Decided OnSep-18-2013
AppellantPresent: Mr. R.S. Sangwan Advocate
RespondentNarender and Others
Excerpt:
in the high court of punjab and haryana at chandigarh (1) fao no.2695 of 2012 (o&m). date of decision:18. 9.2013. krishna kumar .... appellant versus narender and others .... respondents (2) fao no.2696 of 2012 (o&m). date of decision:18. 9.2013. bhateri devi and others .... appellants versus narender and others .... respondents (3) fao no.5138 of 2012 (o&m). date of decision:18. 9.2013. narender and another .... appellants versus bhateri devi & others .... respondents coram: hon'ble mr. justice nawab singh present: mr. r.s. sangwan, advocate, for the appellants in fao no.2695-96. mr. ramender chauhan, advocate, for respondents no.1 and 2 in fao no.2695-96 & for the appellants in fao no.5138. mr. ravinder arora, advocate with mr. neeraj khanna, advocate, for the insurance company. nawab singh.j (oral) this judgment shall dispose of afore-mentioned three faos bearing no.2695, 2696 and 5138 arising out of th common award dated january 25 , 2012 passed by the motor sanjay 2013.09.26 10:56 i attest to the accuracy and integrity of this document punjab and haryana high court fao no.2695 of 2012 (2) accident claims tribunal (for short “the tribunal”.), bhiwani.2. fao no.2695 and 2696 have been filed by krishan kumar-injured and bhateri devi and others seeking enhancement of compensation.3. fao no.5138 has been filed by narender driver and raghubir singh owner of offending jeep no.hr-61-5334. th 4. on august 18 , 2009 chander bhan (deceased) along with his other family members was travelling in the offending jeep from goga mari to their village chhapar rangran, district bhiwani. the jeep was being driven by narender in a rash and negligent manner. the occupants of the jeep requested him to drive the jeep carefully but he did not pay any heed. the jeep was at a fast speed. when they reached near siwani, narender steered the jeep all of a sudden. as a result, it turned. krishan kumar, monu, dharam singh, bhateri devi and chander bhan suffered multiple injuries. all of them were brought to civil hospital, barwa, district bhiwani. after taking first aid, they were referred to government hospital, hisar where chander bhan was declared brought dead. on the dead body of chander bhan, post-mortem examination was conducted. post-mortem examination report is exhibit p-6. hari singh one of the occupants (pw-5) lodged fir (exhibit pw-5/b) in police station siwani against driver of the jeep.5. manjita devi, widow aged 24 years, sunil kumar and sachin twins aged 3 years sons, anju kumari aged 5 years and manju kumari aged 6 years, daughters and bhateri devi mother of chander bhan (deceased) and krishan kumar-injured, aged 12 years, filed claim application under section 166 of the motor vehicles act before the tribunal.6. the tribunal awarded compensation of rs.2000/- to krishan kumar on account of injuries suffered by him. dr. gianender singh, medical officer phc barwa (pw-1) deposed that krishan kumar suffered multiple injuries and also dental injury on his person in the accident. dr. vikas puri, dental surgeon (pw-7) stated that krishan kumar suffered fracture of left central incisor and sanjay 2013.09.26 10:56 i attest to the accuracy and integrity of this document punjab and haryana high court fao no.2695 of 2012 (3) right central incisor was missing.7. taking into consideration nature of the injuries and particularly age of the claimant-appellant, that is, 10 years, in considered opinion of this court, an amount of rs.25,000/- would be just and reasonable compensation to be awarded to the appellant. it is ordered accordingly. the appellant is held entitled to total compensation of rs.25,000/-. the enhanced compensation is rs.23,000/-.8. as regards claim application filed by the legal representatives of chander bhan, it was pleaded that the deceased was 26 years old. he was working as an attendant on a mine and drawing salary of rs.10,000/- per month.9. the tribunal held chander bhan (deceased) as labourer and his income was assessed at rs.3600/- per month. rd deduction of 1/3 was made therefrom for his personal and living expenses. multiplier of 16 was applied. the loss of dependency was assessed at rs.4,60,800/- (2400 x 12 x 16). besides, a sum of rs.10,000/- was awarded for funeral expenses and loss of estate and another sum of rs.5000/- was awarded for loss of consortium. in all, compensation of rs.4,75,800/- was awarded. the tribunal exonerated the insurer of the offending jeep from its liability on the ground that the vehicle was a hired one which was in violation of terms & conditions of the insurance policy.10. manjita devi (pw-2) widow of chander bhan (deceased) deposed that her husband was 26 years of age at the time of his death. he was working as an attendant on a tractor owned by one jagdish at khanak mines and his salary was rs.10,000/- per month. jagdish (pw-4) stated that the deceased was employed as an attendant on a tractor and he used to pay him salary of rs.10,000/- per month.11. indeed, no documentary evidence was led by the claimants to prove the salary of the deceased. even if the deceased is taken as driver on a tractor, his income can be held at rs.5000/- per month because in the year 2009, a driver on a tractor could be sanjay 2013.09.26 10:56 i attest to the accuracy and integrity of this document punjab and haryana high court fao no.2695 of 2012 (4) hired on a salary of rs.5000/- per month. so, this court assesses the income of the deceased at rs.5000/-. the deceased was 26 years of age. it is a matter of common knowledge that in times to come, his salary must have increased. this court grants an addition of 50% to the income of the deceased for future prospects in view of santosh devi vs. national insurance company limited and others 2012(2) rcr (civil) 882. thus, the income is assessed at rs.7500/- (5000+2500).12. the family of the deceased comprises six members viz. widow, four minor children and an old mother. the th rd tribunal should have deducted 1/4 instead of 1/3 for personal and living expenses of the deceased. it has been so held in smt. sarla verma and others vs. delhi transport corporation and another th 2009(6) scc121 deduction of 1/4 is made from the salary of the deceased for his personal and living expenses and the dependency is assessed at rs5625/-. though, the tribunal referred to the judgment of sarla verma but inspite of that, it applied multiplier of 16 whereas it should have been 17. the multiplier of 17 is applied now. in this manner, the loss of dependency is held at 11,47,500/- (5625 x 12 x 17).13. the age of the deceased was 26 years and that of the widow was 24 years so, an amount of rs.1 lac is awarded to the widow of the deceased for loss of consortium in view of rajesh and others vs. rajbir singh and others 2013 acj1403 14. for the reasons recorded supra, the appellants- claimants are held entitled to total compensation of rs.12,57,500/-. the enhanced compensation is rs.7,81,700/-.15. so far as the appeal filed by driver and owner of the jeep is concerned, the tribunal fastened the liability to pay compensation on the driver and owner of the jeep because it was mentioned in the fir lodged by hari singh that the jeep was taken on hire. manjita (pw-2), bhateri (pw-3) and hari singh (pw-5), who were traveling in the jeep and suffered injuries in the accident, while appearing into witness box deposed before the tribunal that the sanjay 2013.09.26 10:56 i attest to the accuracy and integrity of this document punjab and haryana high court fao no.2695 of 2012 (5) jeep was not hired by them rather it belonged to a resident of a village. hari singh also stated that he did not make statement before the police that the jeep was hired by them rather when he came to know about it, he filed an application before the police (mark-a) that he never stated before the police that the jeep was hired by them. the evidence of these witnesses cannot be ignored. all these witnesses were cross-examined by learned counsel for insurance company but nothing material could be elicited to disbelieve their testimony. the jeep was fully insured with national insurance company vide insurance company (exhibit r-3). in this view of the matter, the insurance company is also held liable to pay the amount of compensation to the claimants severally and jointly.16. the interest on the enhanced compensation shall be paid from the date of filing claim application till the amount was deposited by the respondents under the impugned award at the same rate of interest as was awarded by the tribunal.17. the appeals are disposed of in the manner indicated above. 18.9.2013. (nawab singh) sn judge sanjay 2013.09.26 10:56 i attest to the accuracy and integrity of this document punjab and haryana high court
Judgment:

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) FAO No.2695 of 2012 (O&M). Date of Decision:

18. 9.2013. Krishna Kumar .... Appellant Versus Narender and others .... Respondents (2) FAO No.2696 of 2012 (O&M). Date of Decision:

18. 9.2013. Bhateri Devi and others .... Appellants Versus Narender and others .... Respondents (3) FAO No.5138 of 2012 (O&M). Date of Decision:

18. 9.2013. Narender and another .... Appellants Versus Bhateri Devi & others .... Respondents CORAM: HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. R.S. Sangwan, Advocate, for the appellants in FAO No.2695-96. Mr. Ramender Chauhan, Advocate, for respondents No.1 and 2 in FAO No.2695-96 & for the appellants in FAO No.5138. Mr. Ravinder Arora, Advocate with Mr. Neeraj Khanna, Advocate, for the insurance company. NAWAB SINGH.J (ORAL) This judgment shall dispose of afore-mentioned three FAOs bearing No.2695, 2696 and 5138 arising out of th common Award dated January 25 , 2012 passed by the Motor Sanjay 2013.09.26 10:56 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.2695 of 2012 (2) Accident Claims Tribunal (for short “the Tribunal”.), Bhiwani.

2. FAO No.2695 and 2696 have been filed by Krishan Kumar-injured and Bhateri Devi and others seeking enhancement of compensation.

3. FAO No.5138 has been filed by Narender driver and Raghubir Singh owner of offending jeep No.HR-61-5334. th 4. On August 18 , 2009 Chander Bhan (deceased) along with his other family members was travelling in the offending jeep from Goga Mari to their village Chhapar Rangran, District Bhiwani. The jeep was being driven by Narender in a rash and negligent manner. The occupants of the jeep requested him to drive the jeep carefully but he did not pay any heed. The jeep was at a fast speed. When they reached near Siwani, Narender steered the jeep all of a sudden. As a result, it turned. Krishan Kumar, Monu, Dharam Singh, Bhateri Devi and Chander Bhan suffered multiple injuries. All of them were brought to Civil Hospital, Barwa, District Bhiwani. After taking first aid, they were referred to Government Hospital, Hisar where Chander Bhan was declared brought dead. On the dead body of Chander Bhan, post-mortem examination was conducted. Post-mortem examination report is Exhibit P-6. Hari Singh one of the occupants (PW-5) lodged FIR (Exhibit PW-5/B) in Police Station Siwani against driver of the jeep.

5. Manjita Devi, widow aged 24 years, Sunil Kumar and Sachin twins aged 3 years sons, Anju Kumari aged 5 years and Manju Kumari aged 6 years, daughters and Bhateri Devi mother of Chander Bhan (deceased) and Krishan Kumar-injured, aged 12 years, filed claim application under Section 166 of the Motor Vehicles Act before the Tribunal.

6. The Tribunal awarded compensation of Rs.2000/- to Krishan Kumar on account of injuries suffered by him. Dr. Gianender Singh, Medical Officer PHC Barwa (PW-1) deposed that Krishan Kumar suffered multiple injuries and also dental injury on his person in the accident. Dr. Vikas Puri, Dental Surgeon (PW-7) stated that Krishan Kumar suffered fracture of left central incisor and Sanjay 2013.09.26 10:56 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.2695 of 2012 (3) right central incisor was missing.

7. Taking into consideration nature of the injuries and particularly age of the claimant-appellant, that is, 10 years, in considered opinion of this Court, an amount of Rs.25,000/- would be just and reasonable compensation to be awarded to the appellant. It is ordered accordingly. The appellant is held entitled to total compensation of Rs.25,000/-. The enhanced compensation is Rs.23,000/-.

8. As regards claim application filed by the legal representatives of Chander Bhan, it was pleaded that the deceased was 26 years old. He was working as an Attendant on a mine and drawing salary of Rs.10,000/- per month.

9. The Tribunal held Chander Bhan (deceased) as labourer and his income was assessed at Rs.3600/- per month. rd Deduction of 1/3 was made therefrom for his personal and living expenses. Multiplier of 16 was applied. The loss of dependency was assessed at Rs.4,60,800/- (2400 x 12 x 16). Besides, a sum of Rs.10,000/- was awarded for funeral expenses and loss of estate and another sum of Rs.5000/- was awarded for loss of consortium. In all, compensation of Rs.4,75,800/- was awarded. The Tribunal exonerated the insurer of the offending jeep from its liability on the ground that the vehicle was a hired one which was in violation of terms & conditions of the insurance policy.

10. Manjita Devi (PW-2) widow of Chander Bhan (deceased) deposed that her husband was 26 years of age at the time of his death. He was working as an Attendant on a tractor owned by one Jagdish at Khanak Mines and his salary was Rs.10,000/- per month. Jagdish (PW-4) stated that the deceased was employed as an Attendant on a tractor and he used to pay him salary of Rs.10,000/- per month.

11. Indeed, no documentary evidence was led by the claimants to prove the salary of the deceased. Even if the deceased is taken as driver on a tractor, his income can be held at Rs.5000/- per month because in the year 2009, a driver on a tractor could be Sanjay 2013.09.26 10:56 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.2695 of 2012 (4) hired on a salary of Rs.5000/- per month. So, this Court assesses the income of the deceased at Rs.5000/-. The deceased was 26 years of age. It is a matter of common knowledge that in times to come, his salary must have increased. This Court grants an addition of 50% to the income of the deceased for future prospects in view of Santosh Devi vs. National Insurance Company Limited and others 2012(2) RCR (Civil) 882. Thus, the income is assessed at Rs.7500/- (5000+2500).

12. The family of the deceased comprises six members viz. widow, four minor children and an old mother. The th rd Tribunal should have deducted 1/4 instead of 1/3 for personal and living expenses of the deceased. It has been so held in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another th 2009(6) SCC121 Deduction of 1/4 is made from the salary of the deceased for his personal and living expenses and the dependency is assessed at Rs5625/-. Though, the Tribunal referred to the judgment of Sarla Verma but inspite of that, it applied multiplier of 16 whereas it should have been 17. The multiplier of 17 is applied now. In this manner, the loss of dependency is held at 11,47,500/- (5625 x 12 x 17).

13. The age of the deceased was 26 years and that of the widow was 24 years so, an amount of Rs.1 lac is awarded to the widow of the deceased for loss of consortium in view of Rajesh and others vs. Rajbir Singh and others 2013 ACJ1403 14. For the reasons recorded supra, the appellants- claimants are held entitled to total compensation of Rs.12,57,500/-. The enhanced compensation is Rs.7,81,700/-.

15. So far as the appeal filed by driver and owner of the jeep is concerned, the Tribunal fastened the liability to pay compensation on the driver and owner of the jeep because it was mentioned in the FIR lodged by Hari Singh that the jeep was taken on hire. Manjita (PW-2), Bhateri (PW-3) and Hari Singh (PW-5), who were traveling in the jeep and suffered injuries in the accident, while appearing into witness box deposed before the Tribunal that the Sanjay 2013.09.26 10:56 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.2695 of 2012 (5) jeep was not hired by them rather it belonged to a resident of a village. Hari Singh also stated that he did not make statement before the Police that the jeep was hired by them rather when he came to know about it, he filed an application before the Police (Mark-A) that he never stated before the Police that the jeep was hired by them. The evidence of these witnesses cannot be ignored. All these witnesses were cross-examined by learned counsel for insurance company but nothing material could be elicited to disbelieve their testimony. The jeep was fully insured with National Insurance Company vide insurance company (Exhibit R-3). In this view of the matter, the insurance company is also held liable to pay the amount of compensation to the claimants severally and jointly.

16. The interest on the enhanced compensation shall be paid from the date of filing claim application till the amount was deposited by the respondents under the impugned Award at the same rate of interest as was awarded by the Tribunal.

17. The appeals are disposed of in the manner indicated above. 18.9.2013. (NAWAB SINGH) SN JUDGE Sanjay 2013.09.26 10:56 I attest to the accuracy and integrity of this document Punjab and Haryana High Court