Present:- Mr. Ashit Malik Advocate Vs. Amarjit Alias Bhola and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1135599
CourtPunjab and Haryana High Court
Decided OnMar-24-2014
AppellantPresent:- Mr. Ashit Malik Advocate
RespondentAmarjit Alias Bhola and Others
Excerpt:
archana arora fao no.2381 of 1996 1 2014.03.27 15:43 i am the author of this document in the high court of punjab & haryana, chandigarh fao no.2381 of 1996 date of decision march 24, 2014 ram parshad and others ....... appellants versus amarjit alias bhola and others ........ respondents coram: hon'ble mr. justice k. kannan present:- mr. ashit malik, advocate for the appellants. mr. pardeep goyal, advocate for the insurance co. **** 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 against the dismissal of the petition claiming compensation for death of a male aged 22 years. he was said to be a load man drawing an income of `1500/-. the claimants were brother and sister.2. the postmortem certificate revealed that the skull had been crushed and his legs have been fractured. the contention was that the vehicle was transporting husk (turi) and he was one of the load men employed in the truck. the contention in defence by the insurer was that he was a gratuitous passenger. fao no.2381 of 1996 2 there was also denial of involvement of the vehicle in the accident and that the death was on account of alleged accident.3. the tribunal had to contend that with discrepant version of the eye witnesses that included persons travelling in the truck. there was discrepant version regarding number of persons travelling and how the accident took place. there was also an obvious fallibility that the fir had not been registered immediately and it had come about the next day. the accident was said to have been the result of yet another vehicle coming behind which dashed against the insured's truck resulting in injuries to some of them and death to a person who had fallen off the vehicle. the tribunal dismissed it on the ground inter alia that the complainant who had lodged the fir was not examined and there were several discrepancies that could not be reconciled. i will find the ultimate observation by the tribunal to be erroneous, for, it was looking for a standard of proof beyond the pale of the probabilities which were involved in the case. the injuries brought about through postmortem revealed that a crushing of skull was consistent with the version of the claimants that he had been crushed under the tyres and run over by the vehicle in which he was travelling. the best person who was competent to deny this was only the driver and the owner and if they would not examine themselves before the tribunal to contradict the version of the claimant, the tribunal ought to have drawn an adverse inference against the driver and owner and found the involvement of the vehicle as established and must have also found that the death was resultant to the accident injuries. i set aside the finding of the fao no.2381 of 1996 3 tribunal and hold the owner and driver to be responsible primarily and also the insurer by the fact that there was policy of the insurance to cover the risk to labourers, the liability that is compulsorily insurable for the risk to the workman under the workmen compensation act. the law gives a workman an option to make a claim either under the workmen compensation act or under the motor vehicles act. there is simply no error of jurisdiction by the claimants of the deceased in approaching the motor vehicles tribunal for injuries sustained by the workman and the plea of the insurer that proper forum must have been only under the workmen compensation act is not tenable.4. the quantum of compensation will therefore follow the scales laid down through several decisions of the supreme court arising on the subject there was evidence that he was earning `1500/- per month i make a prospect of increase by 50% take the average income to be `2250/- make deduction to 50% and take the contribution to the family at `1525/-. i will apply a multiplier of 18 suitable to the age of the deceased. the loss of dependency shall be `2,43,000/-. i will provide `7,000/- for funeral expenses and loss to estate. the amount in excess of what has already been granted by the tribunal 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. the amount shall be distributed between the claimants equally. the brother is not independently awarded any sum and the entitlement assessed to the parents ought to be taken as sufficient to allow for any inter se support by the father to the son.5. the amount of `25,000/- already awarded fao no.2381 of 1996 4 under the 'no fault liability' shall be deducted and the only remaining amount shall become payable to the claimants. (k. kannan) judge march 24, 2014 archana
Judgment:

Archana arora FAO No.2381 of 1996 1 2014.03.27 15:43 I am the author of this document IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No.2381 of 1996 Date of decision March 24, 2014 Ram Parshad and others ....... Appellants Versus Amarjit alias Bhola and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Ashit Malik, Advocate for the appellants. Mr. Pardeep Goyal, Advocate for the Insurance Co. **** 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 against the dismissal of the petition claiming compensation for death of a male aged 22 years. He was said to be a load man drawing an income of `1500/-. the claimants were brother and sister.

2. The postmortem certificate revealed that the skull had been crushed and his legs have been fractured. The contention was that the vehicle was transporting husk (Turi) and he was one of the load men employed in the truck. The contention in defence by the insurer was that he was a gratuitous passenger. FAO No.2381 of 1996 2 There was also denial of involvement of the vehicle in the accident and that the death was on account of alleged accident.

3. The Tribunal had to contend that with discrepant version of the eye witnesses that included persons travelling in the truck. There was discrepant version regarding number of persons travelling and how the accident took place. There was also an obvious fallibility that the FIR had not been registered immediately and it had come about the next day. The accident was said to have been the result of yet another vehicle coming behind which dashed against the insured's truck resulting in injuries to some of them and death to a person who had fallen off the vehicle. The tribunal dismissed it on the ground inter alia that the complainant who had lodged the FIR was not examined and there were several discrepancies that could not be reconciled. I will find the ultimate observation by the Tribunal to be erroneous, for, it was looking for a standard of proof beyond the pale of the probabilities which were involved in the case. The injuries brought about through postmortem revealed that a crushing of skull was consistent with the version of the claimants that he had been crushed under the tyres and run over by the vehicle in which he was travelling. The best person who was competent to deny this was only the driver and the owner and if they would not examine themselves before the tribunal to contradict the version of the claimant, the Tribunal ought to have drawn an adverse inference against the driver and owner and found the involvement of the vehicle as established and must have also found that the death was resultant to the accident injuries. I set aside the finding of the FAO No.2381 of 1996 3 tribunal and hold the owner and driver to be responsible primarily and also the insurer by the fact that there was policy of the insurance to cover the risk to labourers, the liability that is compulsorily insurable for the risk to the workman under the Workmen Compensation Act. The law gives a workman an option to make a claim either under the Workmen Compensation Act or under the Motor Vehicles Act. There is simply no error of jurisdiction by the claimants of the deceased in approaching the Motor Vehicles Tribunal for injuries sustained by the workman and the plea of the insurer that proper forum must have been only under the Workmen Compensation Act is not tenable.

4. The quantum of compensation will therefore follow the scales laid down through several decisions of the Supreme Court arising on the subject there was evidence that he was earning `1500/- per month I make a prospect of increase by 50% take the average income to be `2250/- make deduction to 50% and take the contribution to the family at `1525/-. I will apply a multiplier of 18 suitable to the age of the deceased. The loss of dependency shall be `2,43,000/-. I will provide `7,000/- for funeral expenses and loss to estate. The amount in excess of what has already been granted by the Tribunal 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. The amount shall be distributed between the claimants equally. The brother is not independently awarded any sum and the entitlement assessed to the parents ought to be taken as sufficient to allow for any inter se support by the father to the son.

5. The amount of `25,000/- already awarded FAO No.2381 of 1996 4 under the 'No fault liability' shall be deducted and the only remaining amount shall become payable to the claimants. (K. KANNAN) JUDGE March 24, 2014 archana