Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 853 (PNJ)

Surinder Kaur wd/o Sohan Singh v. Kulwant Singh

2012-07-04

K.KANNAN

body2012
JUDGMENT Mr. K. Kannan, J.: (Oral) - Both the appeals are connected and arise out of the same accident. FAO No.829 of 1994 is for compensation for death while FAO No.828 of 1994 is for injuries to a pillion rider on a motorcycle. The Tribunal assessed a compensation payable as Rs.2,40,000/- in case of death and Rs.40,000/- in case of injury and proceeded to dismiss the petition on a finding that the deceased driver of the motorcycle was himself negligent and provided for no fault liability of Rs.15,000/- and Rs.7,500/- respectively for the case of death and injury under Section 140 of the Motor Vehicles Act. 2. The cases have been filed on the averment that the bus owned by the respondent-Corporation was overtaking the motorcyclist and hit on the side by the result of which the motorcycle fell down with the pillion rider. This evidence was contested by the evidence given by the driver and ticket checking Inspector. The contention was that the bus had actually stopped when the ticket checking Inspector had got into the bus and when the driver and conductor had actually alighted. When the Inspector was checking passengers, they heard a loud noise of the motorcycle dashing at the rear side of the bus and both the persons riding on the motorcycle had fallen down. While the motorcyclist succumbed to death at the spot, the pillion rider got head injuries for which he had been taken in the hospital. The sketch drawn on the spot and the damage caused to the bus indicated that the accident could not have been caused by the bus overtaking the motorcyclist and dashing him on the side of the bus but the fact that there was a dent on the right rear side of the bus which showed that the accident could have been only in the manner spoken by the respondent witnesses and not in the manner urged in the petitions filed by the respective petitioners. The Tribunal accepted the contention of the witnesses and provided for the award in the manner referred to above. 3. The Tribunal accepted the contention of the witnesses and provided for the award in the manner referred to above. 3. I have gone through the evidence of all the witnesses and I am convinced that the accident could not have taken place in the manner spoken by the witnesses of the side of the petitioners, for, there had been no scratch or dent marks on the left side of the bus which should have been definitely there, if the bus and the motorcycle were going in the same direction and if the bus was overtaking the motorcyclist but dashed the motorcycle and resulted in their falling down. PW2 who was an acquaintance to the deceased has spoken about the fact that the accident had taken place while the bus was overtaking but the motorcyclist had dashed on the back side of the bus. I cannot understand as to how the impact could have been on the back side of the bus if the bus was overtaking. On the side of the respondent, Enforcement staff has been examined as RW1 and it was elicited through him that he had not given any statement relating to the manner of accident with any authority in the Corporation. The suggestion to him is that he was not at all present at the spot. RW2 was the driver of the bus and he also spoke about the fact that enforcement staff stopped the vehicle and when the bus was stationary, the motorcyclist had dashed the vehicle from the rear side. RW3 was another member of the enforcement staff and he also spoke about the fact that when they were carrying out inspection within the bus, the accident has taken place. It was also elicited from him that he had not given any statement to the police or any authority. While the evidence tendered by the persons claiming as eyewitnesses on the side of the petitioners could be discarded as not being fruitful, even the evidence on behalf of the respondents cannot obtain the virtue of positive evidence. If the vehicle had stopped quite some time back and the driver and the conductor had got down from the bus, there is no means by which on a broad National Highway a motorcyclist could come and dash against the stationary bus. If the vehicle had stopped quite some time back and the driver and the conductor had got down from the bus, there is no means by which on a broad National Highway a motorcyclist could come and dash against the stationary bus. There was certainly statement from the side of the petitioner that the bus was going at a fast speed and the accident had taken place around about 4 O’clock in the month of July which should have been still very bright. Stationary bus on a highway where it was parked in the mud portion could not have been simply an object against which a running motorcyclist could have dashed. The motorcyclist had died at the spot and another person had suffered head injury by the impact of the bus. Unless both the vehicles have been in motion and it was a case of one vehicle suddenly trying to stop and yet another vehicle coming from behind could not stop immediately but dashed against the rear side, the accident could not have taken place. I would, therefore, reconstruct the episode in the manner that could have been possible by the nature of injuries caused to the persons on the motorcycle and taking an overall picture of the evidence of all the witnesses. A person dashing from the rear side of the bus must take a larger responsibility of the accident and the bus which must have suddenly stopped by breaking must take a minor share of responsibility. I will apportion the cause for the accident as due to the negligence of the deceased motorcyclist and the driver of the bus in the ratio of 60:40. The determination of compensation shall, therefore, be apportioned to cause an abatement to an extent of 60% for the motorcyclist and 40% against the owner of the bus. 4. As regards the actual assessment for compensation for the death, the evidence is that the deceased was employed in the Thermal Plant of Jallkheri and he was earning 2,000/- per month. The widow of the deceased Paramjit Kaur gave evidence as AW4 and she has said that the deceased was supporting herself and other members of the family, namely, a 9 years old daughter and a 7 year old son. The widow of the deceased Paramjit Kaur gave evidence as AW4 and she has said that the deceased was supporting herself and other members of the family, namely, a 9 years old daughter and a 7 year old son. He was stated to be 35 years of age and I would provide for a 50% increase of Rs.2000/- per month which he was said to have been earning and take the earning as Rs.3000/- per month. Even apart from the children, the father 75 years of age had also joined the petition as a dependent on the deceased. With 4 dependents, therefore, a deduction must have been 1/4th for the personal expenses and the contribution to the family must be taken as Rs.2,250/-. Considering the fact that he was said to be aged 35 years, the appropriate multiplier ought to have been 16 and the amount should be taken as Rs.4,32,000/-. I will make further provision for Rs.5,000/- towards loss of consortium for the wife and another Rs.5,000/- for loss of love and affection for the children. I would also provide Rs.5,000/- towards loss of estate and funeral expenses. The total amount will be 4,47,000/-. I have already held that the rider of the motorcycle, namely, the deceased must take the larger responsibility for the accident and in the manner that have provided and in the manner of apportionment of liability, the owner of the bus will take 40% responsibility for the accident and consequently 40% of the amount determined must also represent the extent of liability of the owner of the bus. The said amount would be 1,78,800/-. This amount will bear interest @ 6% per annum from the date of accident till the date of payment and the amount will be distributed in the ratio of 2/7 share for the widow, son and daughter and 1/7 share to the father of the deceased. If the father has already died his share shall also be distributed amongst the widow and children equally. 5. AW6 was Dr. Bir Singh who was said to have treated the petitioner Sohan Singh. If the father has already died his share shall also be distributed amongst the widow and children equally. 5. AW6 was Dr. Bir Singh who was said to have treated the petitioner Sohan Singh. It was elicited through him that the deceased claimant had been admitted to the surgery ward on 22.07.1989 and he had noticed that the upper row of teeth had been broken and he had grave injury with the lacerated wound over the forehead with comminuted fracture on the frontal and nosal bone. The doctor had also given information about the fact that the fracture of maxilla and mandible were treated by the dental surgeon and after initial admission on 22.07.1989 he was discharged on 09.08.1989 in a satisfactory condition. For injuries in the head the medical treatment, for pain of suffering and for medicines etc. the Tribunal had awarded a compensation of Rs.40,000/-. I would make a marginal increase to Rs.60,000/-. The pillion rider himself cannot be said to be negligent in any way while even if some portion of negligence is attributed to the rider of the motorcycle. As far as the pillion rider is concerned, it is really a case of composite negligence of the driver of the bus and rider of the motorcycle. No portion of the award could suffer any abatement and if at all the entitlement of the legal representatives of the deceased claimant must be apportioned only in the manner already determined. The legal representatives of the claimant were, therefore, entitled to enforcement of the entire amount against anyone of the tortfeasors. Since one of the tortfeasors had died, the legal representatives of the claimant are entitled to enforcement the entire claim against the other tortfeasor, viz the P.R.T.C. 6. In the light of the reasoning made above, the claimants shall be entitled to award of Rs.60,000/-. The amount shall attract interest @ 6% per annum from the date of petition till date of payment. The claimants are at liberty to enforce against the owner of the bus in full. It is seen from the evidence that at the relevant time of the accident the insurance had already expired. The Insurance Company had been already exonerated and I confirm the said finding. 7. Both the appeals are allowed to the above extent.