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2007 DIGILAW 1349 (PNJ)

Kako v. Ram Sarup Garg

2007-07-18

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. - This is an appeal against the award dated 1.12.1988 passed by the learned Motor Accident Claims Tribunal, Faridkot (hereinafter referred to as the Tribunal) in MACT Case No. 3 of 1987. 2. The appellant-claimants filed an application under Section 110-A of the Motor Vehicles Act, 1939 (for short the Act) claiming compensation to the tune of Rs. 2,00,000/- (Rs. two lacs) on account of death of her son Dharam Pal. 3. It was claimed in the claim application that deceased Dharam Pal was employed with respondent Nos. 1 and 4 i.e. Ram Sarup Garg and Sunil Garg on harvesting combine at a monthly salary of Rs. 1,000/- as helper. In the month of September, 1986 the deceased along with Darshan Singh and Kulwant Singh used to go to harvest paddy crop. On 10th October, 1986 Darshan Singh was driving the jeep to go to Safidon Mandi in Haryana to harvest paddy crop whereas Kulwant Singh took the combine while Dharam Pal along with Ved Parkash and Jagdish were travelling in the jeep being driven by Shri Darshan Singh. When the jeep reached near village Mehna on Malout-Dabwali road, the jeep struck with a truck as a result of which Dharam Pal received injuries and died on the spot. Jagdish also received injuries and he was taken to the Hospital, where he died. 4. It was claimed that the accident had occurred due to negligent driving of Darshan Singh, driver of the jeep. The claimant Kako was the mother whereas Swarn Kaur and Chhinder Kaur were unmarried sisters of the deceased. It was further claimed that they were dependent on him. 5. The claim petition was contested by respondent No. 1, where all the allegations were denied. It was also denied that Dharam Pal Singh was employed at a monthly salary of Rs. 1,000/- and even the employment of the deceased Dharam Pal with respondent Nos. 1 and 4 was denied. However, the factum that Dharam Pal was a helper was admitted. It was also claimed that the accident had occurred due to negligence driving of truck driver. The Insurance Company also denied the allegations. 6. On the pleadings of the parties, following issues were framed :- "1. Whether Darshan Singh caused the death of Dharampal Singh by driving the vehicle No. DED 3108 by rash or negligent driving ? OPP 2. It was also claimed that the accident had occurred due to negligence driving of truck driver. The Insurance Company also denied the allegations. 6. On the pleadings of the parties, following issues were framed :- "1. Whether Darshan Singh caused the death of Dharampal Singh by driving the vehicle No. DED 3108 by rash or negligent driving ? OPP 2. Whether the claimants are the LRs of deceased Dharampal Singh ? OPP 3. Whether the claimants are entitled to get compensation ? If so, to what amount and from whom ? OPA 4. Whether the petition is bad for non-joinder of necessary parties ? OPR 5. Whether Darshan Singh had not a valid driving licence ? OPR 6. Relief." On issue No. 1, the learned Tribunal recorded a finding that the accident had taken place due to negligence of both the drivers i.e. the driver of the jeep and that of the truck. On issue No. 2, it was held that Kako claimant No. 1 being the legal heir of the deceased was entitled to get compensation whereas other claimants were not held to be entitled to any compensation. 7. On issue No. 3, the learned Tribunal held the income of the deceased to be Rs. 600/- per month. However, out of this amount, the dependency was assessed only at Rs. 175/- per month. Keeping in view the age of the deceased, multiplier of 16 was applied and consequently a compensation to the tune of Rs. 33,600/- was assessed. However, keeping in view the finding on issue No. 2, the compensation payable was assessed to be Rs. 16,800/- i.e. 50% of the assessed value as the claimants had chosen not to implead the driver and the owner of the jeep as a party to the claim petition. The learned Tribunal further came to the conclusion that Insurance Company was not liable to pay compensation as the jeep was not insured for the passengers travelling in the jeep. It was also held by the learned Tribunal that the amount of Rs. 16,800/- was inclusive of Rs. 15,000/- awarded to the claimant under the No Fault Liability. The interest @ 12% per annum was also allowed. 8. Mr. H.S. Gill, Senior Advocate appearing on behalf of the appellants with Mr. It was also held by the learned Tribunal that the amount of Rs. 16,800/- was inclusive of Rs. 15,000/- awarded to the claimant under the No Fault Liability. The interest @ 12% per annum was also allowed. 8. Mr. H.S. Gill, Senior Advocate appearing on behalf of the appellants with Mr. Vivek Goyal, Advocate, has not challenged the findings of the learned Tribunal on any other issue, except on issue No. 3 i.e. with regard to the amount of compensation payable. In addition, the challenge was also made to the finding recorded by the learned Tribunal absolving the Insurance Company of its liability. 9. Learned Senior Counsel for the appellants vehemently contended that the learned Tribunal was wrong in assessing the dependency of Rs. 175/- only out of Rs. 600/-. He further contended that the claimants had produced evidence on record to show that the income of the deceased was Rs. 1,000/- per month and, therefore, it was wrong on the part of the Tribunal to have assessed his income at Rs. 600/-. However, there is no force in this contention as no proof of salary was brought on record and, therefore, the learned Tribunal was justified in assessing the income of the deceased at Rs. 600/- as the deceased was merely employed as a helper. However, the contention of the learned counsel has a force when he contends that the dependency at Rs. 175/- has been wrongly assessed. Learned Senior counsel made a reference to the statement of Smt. Kako, who appeared as PW-4 in which she stated that Dharam Pal used to give his salary to her towards her maintenance. In the cross-examination, this statement was not shattered and, therefore, the finding of the learned Tribunal that he must be giving only meager amount to the mother cannot be said to be justified. From the statement of Smt. Kako, it can safely be concluded that the deceased was giving Rs. 400/- per month to her mother out of Rs. 600/- which could have been assessed as salary of the deceased by the Tribunal. Resultantly, it is held that Smt. Kako, claimant would be entitled to compensation of Rs. 76,800/- (Rs. seventy six thousand eight hundred). In addition to this, she will further be entitled to Rs. 5,000/- towards cremation and other expenses. Thus the total amount of compensation payable is assessed at Rs. 81,800/-. Resultantly, it is held that Smt. Kako, claimant would be entitled to compensation of Rs. 76,800/- (Rs. seventy six thousand eight hundred). In addition to this, she will further be entitled to Rs. 5,000/- towards cremation and other expenses. Thus the total amount of compensation payable is assessed at Rs. 81,800/-. As the finding of contributory negligence has not been challenged, the compensation payable, therefore, is assessed at Rs. 40,900/- (Rs. Forty thousand nine hundred). 10. It was also contended by the learned counsel for the appellant that the learned Tribunal was wrong in treating the deceased to be a gratuitous passenger in order to absolve the liability of the Insurance Company. He made a reference to Policy Exhibit P-4 to show that the vehicle was insured qua 3rd party as well as the driver. Once it was proved on record that the deceased was an employee of the owner of the jeep and was being carried in the course of his employment, he could not be said to be a passenger as held by the learned Tribunal. For the purpose of compensation, he had to be treated as a 3rd party and the insurance cover thus covered the claim raised on behalf of the deceased. Consequently, the finding of the learned Tribunal absolving the Insurance Company from its liability is set aside and it is held that the respondents shall be jointly and severally liable to pay compensation to the claimant-appellant. Resultantly, the appeal is allowed. The compensation is assessed at Rs. 40,900/-. In addition to this, the claimant shall also be entitled to interest @9% per annum on the enhanced amount from the date of application till realization. It is further made clear that this amount is inclusive of the compensation awarded under No Fault Liability. The liability of the Insurance Company and other respondents shall be joint and several. Appeal allowed.