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2012 DIGILAW 1572 (PNJ)

Sukhminder Kaur v. Gurdev Singh

2012-11-05

K.KANNAN

body2012
JUDGMENT Mr. K. Kannan, J.: - The appeal is by the claimants seeking for enhancement of compensation ascertained for the death of a male aged 35 years. The claimants were the widow, two minor sons, a minor daughter and mother of the deceased. The deceased was a pillion rider in a motorcycle and the motorcyclist himself was injured in the accident and his appeal for enhancement of claim for compensation is a subject of appeal in FAO No.1243 of 1993. 2. The accident was said to have taken place on 08.02.1989 when the motorcycle in which the deceased and the injured were proceeding collided with the insured’s truck coming from the opposite direction. The accident was spoken to by the injured claimant himself as well as by AW2-Raj Joginder Singh, who claimed that he was following them in his own motorcycle and he was a personal witness to the fact that the driver of the truck was driving rashly and after the collision, he stopped the vehicle, got down but drove away in his truck without minding the injured and the deceased, if they were given any medical attention at all. The driver himself was examined as a witness as RW-2 and it was his contention that he had not driven the vehicle HYN-2668 and that he had not even been employed by the owner of the vehicle. The owner of the vehicle, who was arrayed as the 4th respondent, was examined as RW-1, gave evidence to the effect that the truck was in a garage between 29.01.1989 to 13.02.1989 and the vehicle, therefore, could not have been involved in the incident on 08.02.1989 in a public place. The motor mechanic, who was running the garage was examined to say that he had attended to the vehicle, but there was a significant contradiction in his evidence regarding the time when the vehicle was in the garage. He stated that the vehicle was brought to the garage on two different dates and his evidence contradicted the owner’s evidence that the vehicle was in his garage for a long period in the manner spoken to by RW-1. There was also a vital contradiction in the evidence of the driver who said that he had not been employed by the 4th respondent and that he was employed as a driver in another truck No.PJT-521 owned by Roop Singh. There was also a vital contradiction in the evidence of the driver who said that he had not been employed by the 4th respondent and that he was employed as a driver in another truck No.PJT-521 owned by Roop Singh. The owner of the vehicle HYN-2668 which had been involved in the accident had admitted that the first respondent was the driver and that he had been entrusted with the vehicle. 3. The learned senior counsel appearing on behalf of the owner-insured made elaborate references to the evidence of the eyewitnesses about whether the driver got down from the vehicle or whether he had driven without getting down and also pointed out to the fact that if AW-1 had noticed the vehicle registration number and had informed AW-2, the FIR itself did not contain any reference about the vehicle number. It was most unlikely that AW-2 who lodged FIR could not have made reference of the vehicle number if he had been apprised of the vehicle number. According to him, the accident itself could not have taken place involving the 4th respondent’s truck. 4. The trial Court was alive to these contradictions but still found the involvement of the 4th respondent’s vehicle as established by the fact that the complaint had been registered immediately after the incident and the identity of the vehicle had been properly revealed in the FIR with reference to colour of the truck on the basis of which, later police had seized the vehicle and arrested the driver. The driver was completely denying that he ever drove the truck which was found to be false by the evidence of the owner of the truck, who admitted that the first respondent was his driver. The owner was trying to keep the vehicle outside the scene by contending that the vehicle was in the garage for a long period of time including the date when the accident had taken place. This was falsified again by the evidence of the motor mechanic who stated that the vehicle was in his custody only for a couple of days on two different dates. The Tribunal brought out these contradictions and found that the preponderance of probabilities suggested that the 4th respondent’s vehicle had indeed been involved in the accident. I find the reasoning of the Tribunal Judge to be correct and I would confirm the same. The Tribunal brought out these contradictions and found that the preponderance of probabilities suggested that the 4th respondent’s vehicle had indeed been involved in the accident. I find the reasoning of the Tribunal Judge to be correct and I would confirm the same. Inconsistency, if there existed in the evidence of AW-1 and AW-2 about whether the driver got down from the vehicle or not or as to whether the number of the vehicle was immediately informed by AW-1 to AW-2 do not detract from the fundamental issue regarding the fact of accident and the identity of the vehicle which was involved in the accident by reference to the colour of the truck and the later act of the police in seizing the vehicle and arresting the driver. 5. The issue would therefore require consideration only on whether the compensation had been properly assessed. The deceased was supporting a large family of his widow, mother and three children. He was said to be agriculturist and also doing dairy farming. AW-1 also stated that they had also employed persons to assist them in agricultural operations. The Tribunal took the contribution to the family at Rs.9,000/- per year, adopted a multiplier of 16 and determined compensation of Rs.1,44,000/-. Claimant’s own evidence was that her husband used to earn Rs.10,000/- to 12,000/- per month from agriculture and dairy farming. I would find the assessment to be exceedingly modest and take the average income of the deceased at the relevant time at Rs.4,000/-, make a 1/4th deduction for personal expenses and take the contribution to the family at Rs.3,000/- per month. Considering the age of the deceased at 35, I will take the multiplier of 16, as taken already by the Tribunal and take the loss of dependency as Rs.5,76,000/- (3,000 x 12 x 16). The Tribunal has not provided for loss of consortium, loss of love and affection for the children, I would estimate Rs.5,000/- for the wife and Rs.2,500/- each for one one of the minor children. I will add Rs.2,500/- towards loss to estate and Rs.2,500/- towards funeral expenses under the conventional heads of claim. The total amount that would become payable would be Rs.5,93,500/-. The enhancement of compensation shall be available to the widow and three children and they will be shared equally. I will add Rs.2,500/- towards loss to estate and Rs.2,500/- towards funeral expenses under the conventional heads of claim. The total amount that would become payable would be Rs.5,93,500/-. The enhancement of compensation shall be available to the widow and three children and they will be shared equally. The additional amount to what has been awarded already by the Tribunal shall attract interest at 7.5% from the date of petition till date of payment. The appeal is dismissed. The cross objection is allowed. 6. The appeal in FAO No.1243 of 1993 is for the claim for compensation for injuries. The contention was that the claimant was admitted in the hospital and had taken treatment from 08.02.1989 to 24.03.1989. The doctor, who was examined as AW-3, had given evidence referring to the injuries in three places, (i) on the front of middle of right leg with bone deep lacerated wound of 3 cms x 1 cm; (ii) wound on the upper side of right leg, muscle deep, lacerated wound of 2 cms x 1 cm; and (iii) lacerated wound of 2 cms x 1 cm over the lateral side of right shoulder. He was said to be bleeding profusely and as already elicited, he was hospitalized for nearly 45 days. There was also evidence to the effect that he took treatment after the initial hospitalization at CMC Hospital, Ludhiana. The evidence was that his right leg and arm had been affected in the accident and he could not do his normal agriculture work. The actual disability arising out of the accident was sought to be elicited through evidence of the doctor. Although the medical expenses were claimed to have been incurred to the tune of Rs.12,000/- to Rs.15,000/- even the medical bills were not produced. The Tribunal, therefore, took the overall compensation of Rs.45,000/- without any discussion about how the said amount had been arrived at. I am similarly handicapped of not being able to assess under each one of the heads with very little details available, but I would still tabulate the same. ---------------------------------------------------------------------------------------------------------------------------------- Sr.No. Heads of claim Tribunal High Court Amount (Rs.) Amount (Rs.) ---------------------------------------------------------------------------------------------------------------------------------- 1. Loss of income 2. Medical expenses: Medicines: Hospital charges: 10,000 Attendant charges: 3,000 Special diet 3,000 3. Transport 4. Pain & Suffering- 20,000 per fracture/per surgery 5. Disability in percentage of life 15,000 6. Loss of earning capacity 7. ---------------------------------------------------------------------------------------------------------------------------------- Sr.No. Heads of claim Tribunal High Court Amount (Rs.) Amount (Rs.) ---------------------------------------------------------------------------------------------------------------------------------- 1. Loss of income 2. Medical expenses: Medicines: Hospital charges: 10,000 Attendant charges: 3,000 Special diet 3,000 3. Transport 4. Pain & Suffering- 20,000 per fracture/per surgery 5. Disability in percentage of life 15,000 6. Loss of earning capacity 7. Income x % of loss of earning power x multiplier ---------------------------------------------------------------------------------------------------------------------------------- Total 45,000 51,000 ---------------------------------------------------------------------------------------------------------------------------------- There is a marginal increase of Rs.6,000/- to what has been already assessed by the Tribunal. 7. As regards liability, the Tribunal found that the driver was not duly licensed at the relevant time when the accident had taken place. 8. In this case the licence produced by the driver was shown to have been renewed from Bathinda and later from Ganganagar. The licence had been renewed 4 times. The owner of the vehicle had given evidence to the effect that the driver had been in the service since the beginning on 1988 and he had seen the driving licence at the time when he was employed in the service. He denies suggestion that the driving licence of Gurdev Singh was forged one. If there was a clear evidence of the owner that he had seen the driving licence and that he believed it to be true, the fact that the original issue of licence was not true, then it could not be stated that the owner was guilty of breach of term of policy. Definite evidence must have been placed by the insurer on two aspects: one, that the original issue of licence had not been done by the issuing office; and two, the owner had colluded with the driver and had fabricated the licence. On behalf of the Insurance Company, no attempt had been made to summon the records from the DTO’s office. It was merely the evidence of the Administrative Assistant of the Insurance Company which was placed before the Court to say that he had verified the licence and it was informed by the DTO that the licence had not been issued and an endorsement was made in the report. Without summoning the original records or cross examining of the Clerk who had made the endorsement that the licence had not been issued, it could not be stated that the Insurance Company had proved the licence to be forged one. Without summoning the original records or cross examining of the Clerk who had made the endorsement that the licence had not been issued, it could not be stated that the Insurance Company had proved the licence to be forged one. The Insurance Company was therefore definitely liable for a claim arising out of the accident. Both the awards shall be therefore enforceable against the Insurance Company by the claimants and the owner shall stand fully indemnified. 9. The counsel for the Insurance Company contends that the owner ought to have filed an independent appeal and cannot file cross objection filed by the claimant. I reject this argument, since the appeal by the claimants is against the liability cast on the owner. The owner is entitled to urge in cross objection that the award ought not to have been passed against him. The fact that he seeks for indemnity against a co-respondent is an incidental issue. So long as the Insurance Company gets the full right to plead its own case, no prejudice could be said to have been caused by the owner denying the liability against a co-respondent. The procedural objection must give place to adjudication to subserve substantial justice. 10. The award stands modified and the appeal in FAO No.1242 of 1993 is allowed. The cross objection by the owner seeking for indemnity is allowed.