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2014 DIGILAW 604 (PNJ)

Sona Devi alias Giano Devi v. Surinder Kumar

2014-03-24

K.KANNAN

body2014
JUDGMENT Mr. K. Kannan J. (Oral):- Both the appeals arise out of the same set of facts FAO No.495 of 1998 relates to a claim for death of a person said to be aged 58 years. There was no evidence regarding the age and one of the witnesses said that he was aged 80 years. FAO No.496 of 1998 is for injuries suffered by one of the claimants and the evidence was that he was in the hospital for about 1 ½ months. The hospital record regarding the hospitalization and the nature of injuries that had been suffered by him had not been brought on record. However, it was contended by the claimant who examined himself that he had suffered a complete loss of vision in one eye. 2. It was a case of collision between one three wheeler in which the claimants and the deceased were travelling and admittedly it was a case of collision involving the insured’s truck coming from the opposite direction. It was stated that the truck had been laden with husk and the part of husk was bulging on both sides of the truck. The Tribunal found fault with inconsistent versions on the side of the claimants and some of them were not recalled whether it was a three wheeler or four wheeler. The Tribunal also observed that none of them was able to show by any cogent evidence that the accident had resulted only by the negligence of the driver of the truck. The driver of the truck was himself examined as RW1 who admitted to the collision. He contended that the left portion of the vehicle was in the kutcha berm of the road and the accident had taken place only by the auto rickshaw striking against the truck. The Tribunal found this as sufficient to discredit the claims of the claimants and dismissed the petition. 3. I find the appreciation of evidence by the Tribunal to be wholly deficient. In a case of collision between two vehicles and a heavily laden truck literally runs over the auto rickshaw resulting a passenger dying and seriously injuring two others, there could have been little doubt that it could only the negligence of the driver of the truck which had contributed to the accident. In a case of collision between two vehicles and a heavily laden truck literally runs over the auto rickshaw resulting a passenger dying and seriously injuring two others, there could have been little doubt that it could only the negligence of the driver of the truck which had contributed to the accident. Even if I may observe that there was some negligence on the part of the driver of the auto rickshaw, the petition could not have been dismissed or could not have been subjected to any abatement since as regards the passengers in the three wheeler it was a case of composite negligence and claimants were entitled to seek for the enforcement of the claim against any one of the tort feasors. The petition filed against the truck owner and insurer was, therefore, perfectly competent and the dismissal of the petitions were clearly erroneous. I reverse the finding of the Tribunal and hold the insurer of the truck to be liable for the claims arising out of the accident. 4. The claimant in FAO No.495 of 1998 is the widow who claimed that her husband was 58 years of age. Yet another witness to the accident making the statement that the deceased would have been 80 years of age ought not to be of any relevance when there was a wife making the assertion regarding the husband’s age. I will, therefore, take the age of the deceased as 58 years. Considering the fact that there was evidence that he was a Brahmin Purohit earning about Rs. 2800/- per month, I will provide for 1/3rd deduction and take the contribution to the family for the balance and apply a multiplier of 9 to assess the loss of dependence at Rs. 2,01,600/-. I will also add loss of consortium to the wife at Rs. 1 lac and provide for an additional sum of Rs. 7500/- towards loss to estate and funeral expenses. The total compensation payable will be Rs. 3,09,100/-. The amount shall also attract interest @7.5% from the date of petition till the date of payment and the right of enforcement of the award shall be available against the insurer. 5. The appeal in FAO No.495 of 1998 is allowed to the above extent. 6. FAO No.496 of 1998 is for injuries suffered in the accident which had resulted in loss of vision in one eye. 5. The appeal in FAO No.495 of 1998 is allowed to the above extent. 6. FAO No.496 of 1998 is for injuries suffered in the accident which had resulted in loss of vision in one eye. The counsel for the appellant is unable to furnish any detail as regards the age or the medical details to hospitalization and expenses. I am unable to, therefore, make a proper appraisal under each one of the heads and I hasten to make some conjectures providing for Rs. 5,000/- towards medical expenses, Rs. 5,000/- towards hospital charges for 1 ½ months treatment as inpatient, Rs. 2,000/- as attendant charges, Rs. 1,000/- for special diet and another Rs. 1,000/- towards transportation. I will make a provision for pain and suffering to the extent of Rs. 25,000/- for loss of an eye and take the disability for loss of vision at Rs. 30,000/- and with no detail available for the age or the avocation, I will make some approximation of what the loss of earning capacity would be to another sum of Rs. 30,000/-. The total compensation payable will be Rs. 99,000/-. This amount will also attract interest @7.5% from the date of petition till the date of payment. The liability shall be on the insurer of the truck. 7. It is contended by learned counsel for the respondent that the driver of three wheeler had not been impleaded. I find this argument to be without force, for I have already observed that the right of entitlement to secure an award for the claim in case of composite negligence right of enforcement shall be available against any one of the tort feasors. It shall be open for the insurer to proceed with his own action to seek for contribution against the owner and driver by means of an independent suit, which adjudication will consider the issue of apportionment of liability depending upon the evidence brought before Civil Court in a subsequent proceedings. As of now, the liability of the insurer for the truck is unexceptional and both the appeals deserve success. 8. The appeal in FAO No. 496 of 1998 is also allowed. ---------0.B.S.0------------