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Punjab High Court · body

2016 DIGILAW 3410 (PNJ)

Vidya Devi v. Sukhwinder Kaur

2016-12-07

AMOL RATTAN SINGH

body2016
JUDGMENT : AMOL RATTAN SINGH, J. 1. These three connected appeals all challenge the Award of the learned Motor Accident Claims Tribunal, Patiala, dated 24.02.1998. Whereas FAO Nos. 1166 and 2367 of 1998 have been filed by the owner and driver respectively of the vehicle involved in the accident, FAO No. 1661 of 1998 has been filed by two of the claimants before the Tribunal, with the first claimant, i.e. the widow of the person who died in the accident, having been impleaded as respondent no. 7 before this Court. The two claimants who have filed the appeals are the mother and (then) minor daughter of the deceased, with the minor daughter having been impleaded before this Court (as also before the Tribunal), not through the widow of the deceased but through the mother of the deceased, i.e. the first appellant, Gurcharan Kaur in FAO No. 1661 of 1998. 2. The facts leading up to the claim petition, as contended before the Tribunal, are that on 23.02.1995, deceased Bikramjit Singh @ Bikram Singh had come to Patiala for some domestic work, as also to purchase and bring sand needed by him for the construction of his house, which was stated to be on going at that time, at his village, Dhainthal. It was contended that after getting free from his domestic work, he came to the local bus stop near the old octroi post at Rajindra Hospital, Patiala, and was waiting for any truck to come, loaded with sand, when at about 1:00 pm a truck bearing registration no. HYR-4391, came there loaded with sand, heading for Samana. The truck was stated to have been driven by Bharpur Singh (hereinafter to be referred to as the truck driver), i.e. respondent no. 1 in the present appeal of the claimants (and the appellant in FAO No. 2367 of 1998). It was further averred in the petition that the sand in the truck was purchased by the deceased, who thereafter travelled in the truck as its custodian, to go to his village, Dhainthal. 1 in the present appeal of the claimants (and the appellant in FAO No. 2367 of 1998). It was further averred in the petition that the sand in the truck was purchased by the deceased, who thereafter travelled in the truck as its custodian, to go to his village, Dhainthal. Allegedly, the driver of the truck started driving the truck in a rash and negligent manner and at about 1:30 pm, when it reached near the bus stop of village Dhainthal, a bus bearing registration No. PB-11C-9422, owned by the Pepsu Road Transport Corporation (a respondent in all these appeals), driven by Mangal Dass @ Mangal Ram (also impleaded as a respondent in all these appeals and hereinafter to be referred to as the bus driver), came from the opposite side at a very high speed, also allegedly driven negligently, due to which both the vehicles struck against each other on their right sides. The drivers both turned to their respective left sides and since the truck was being driven at a fast speed, it turned turtle due to the immediate swerve and fell down in the adjoining fields. The occupants of the truck received injuries, with Bikramjit Singh having received grievous multiple injuries on his body and head. One Sukhwinder Singh (later PW3), Taranjit Singh and Gurdeep Singh, were stated to have witnessed the accident. It was contended that Gurdeep Singh sent information about the occurrence to the claimants in their village, after which the claimants and other male members of the family remained busy in attending the deceased, first in the Rajindra Hospital, Patiala and then at the DMC Hospital, Ludhiana. It was averred that due to this reason, the police could not be contacted by the claimants or anybody else on their behalf and no FIR could be lodged by them. On the other hand, the truck driver, Bharpur Singh, got DDR No. 10, dated 24.02.1995, recorded at Police Station, Samana. Thereafter, Bikramjit Singh is stated to have died at about 8:45 pm on 03.03.1995 (about seven and half days after the accident). 3. He is stated to have been 26 years old at that time, earning Rs.1,00,000/- per annum from agriculture and Rs.10,000/- per month from dairy farming and milk selling. It was averred that he remained under treatment at the DMC Hospital, Ludhiana, from 23.02.1995 to 03.03.1995 and about Rs.1,00,000/- was spent on his treatment. 3. He is stated to have been 26 years old at that time, earning Rs.1,00,000/- per annum from agriculture and Rs.10,000/- per month from dairy farming and milk selling. It was averred that he remained under treatment at the DMC Hospital, Ludhiana, from 23.02.1995 to 03.03.1995 and about Rs.1,00,000/- was spent on his treatment. It was further contended that during the pendency of the claim petition, the first claimant, i.e. his widow, left the house of the parents of the deceased and performed another marriage with one Jassa Singh son of Harbans Singh of village Samaspur, District Kurukshetra and allegedly deserted her daughter, i.e. the second claimant, who therefore was residing with the third claimant (the mother of the deceased) and her husband; i.e. she was residing with her paternal grand-parents. Yet further, it was stated that there was another litigation between the first claimant and the minor claimant, i.e. her daughter, regarding the insurance policy of the deceased and in that suit, a compromise was reached in the Court of the learned Additional Civil Judge (Senior Division), Samana, in which the widow admitted that her daughter was living with the grand-parents and that they would be liable for her 'up-keep' maintenance and other liabilities. 4. On the aforesaid averments in the claim petition, a compensation of Rs.10,00,000/- was claimed against the respondents, including the insurer of the truck in question, as also the Corporation that owned the bus involved in the accident, other than the driver and the owner of the truck, and the driver of the bus. 5. Upon notice having been issued to them, no written statement was filed by the first respondent before the Tribunal, i.e. the driver of the truck, but the owner thereof, i.e. the 2nd respondent before the Tribunal, filed a written statement admitting that the deceased was sitting in the truck as a custodian of the sand. However, it was further contended that the accident had actually been caused due to the rash and negligent driving of the driver of the bus but the claimants had threatened to involve her (the owner) in a false criminal case and also to file a false claim petition against her, due to which she, under pressure, had to pay them a sum of Rs.50,000/-. Thereafter, the matter was compromised vide a compromise deed/affidavit dated 05.04.1995, by which the claimants undertook not to file any claim petition/litigation against the owner of the truck and therefore, with the matter having been finally settled with the payment of the aforesaid Rs.50,000/- vide a cheque drawn on the Oriental Bank of Commerce, it was contended that she, i.e. the owner of the bus, had been unnecessarily dragged into the litigation. The factum of the truck having been driven by the first respondent in the claim petition, i.e. presently the appellant in FAO No. 2367 of 1998, was admitted by the owner of the vehicle. 6. A replication was filed to the aforesaid written statement by the claimants, contending therein that the Bhog ceremony of the deceased was attended by two male members of the family of the owner, where they admitted the fault of the driver of the truck and as such, respectable of the village had requested those family members of the owner, to help the claimants financially. The father of the deceased also approached them on a number of occasions and ultimately a sum of Rs.50,000/- was paid, after obtaining the signatures of claimants no. 1 and 3, as also of Hazara Singh, father of deceased, on some blank stamp papers, allegedly taking a plea that the amount paid was to be shown by the owner of the truck, alongwith her insurance claim, to the company that had insured the vehicle. The first and third claimants, as also the father of the deceased, are stated to have signed on those blank papers under mental depression and thus, it was contended in the replication, that the amount of Rs.50,000/- paid, actually did not have anything to do with the claim petition. 7. The insurance company with which the truck was insured, i.e. the New India Assurance Company Limited, in its written statement before the Tribunal, denied that the deceased was travelling in the truck as a custodian of the sand loaded in it, or that he had purchased the sand for the construction of his house. 7. The insurance company with which the truck was insured, i.e. the New India Assurance Company Limited, in its written statement before the Tribunal, denied that the deceased was travelling in the truck as a custodian of the sand loaded in it, or that he had purchased the sand for the construction of his house. It was contended that the deceased (being a gratuitous passenger), would not be “covered under the policy.” It was further denied that the accident had taken place due to the rash and negligent driving of the drivers of the two vehicles and that even if the accident was proved, it was actually the result of the rash and negligent driving of the bus driver. Still further, it was contended that in the DDR lodged by the driver of the truck, his own negligence had been wholly denied and in any case, it was further pleaded that the said driver was not holding a valid driving licence at the time of the accident. All in all, it was contended by the insurance company that it was not, therefore, liable to pay any compensation, also for the reason that the truck was not carrying a valid route permit, fitness certificate and registration certificate, at the time of the accident. 8. The Corporation, its Depot Manager, Budhlada Depot and the driver of the bus (respondents no. 4 to 6 before the Tribunal), filed a joint written statement stating therein that the accident was caused wholly on account of the negligent driving of the truck driver, even denying the fact that the truck and bus had struck one against the other, as alleged. It was further contended that the police had been intimated of the true position during the course of the investigation of the DDR lodged by the truck driver and after thorough investigation of the case, no action was taken by the police. Yet further, the Corporation contended that is driver was driving the bus coming from the side of the Samana and that a jeep was going ahead of it. The driver of the jeep suddenly applied brakes on seeing the on-coming truck driven rashly and negligently and at a high speed by its driver and consequently, the bus driver had also applied its brakes. The driver of the jeep suddenly applied brakes on seeing the on-coming truck driven rashly and negligently and at a high speed by its driver and consequently, the bus driver had also applied its brakes. On seeing both the vehicles, the truck driver took the truck further to the left side of the road where the soil under the wheel of the truck was loose, due to which the wheel went into the soil and the truck fell into the ditches, turning turtle. Thus, it was contended by the owners and driver of the bus, that the accident had occurred wholly due to the negligence of the truck driver who became nervous on seeing the jeep and the bus. It was further averred that the injured were actually removed to the Rajindra Hospital, Patiala, by the driver of the bus and got admitted there and consequently, the bus owner and driver, i.e. the Corporation and its driver, had been unnecessarily joined as parties in the claim petition. 9. Upon a replication to the aforesaid written statement also having been filed by the claimants, the following issues were framed by the learned Tribunal:- “1. Whether respondent no. 1 Bharpur Singh drove truck no. HRY-4391 in a rash and negligent manner and is, therefore, responsible for the accident? OPP 2. Whether Mangal Dass @ Mangal Ram respondent no. 6 driver of PRTC Bus No. PB-11C-9422 drove the aforesaid Bus in a rash and negligent? 3. Whether Bikramjit Singh @ Bikram Singh died in the accident in question? OPP 4. Whether the claimants are legal representatives of deceased Bikramjit Singh @ Bikram Singh? OPP 5. Whether the claimants are entitled to any compensation, if so what extent and from which of the respondents? OPP 6. Whether Bharpur Singh respondent no. 1 was not having a valid driving licence on the date of accident, if so its effect? OPR 7. Whether deceased Bikramjit Singh @ Bikram Singh was travelling in the truck in question as owner of the goods (sand) being transported therein 7 if so its effect? OPP 8. Relief.” 10. OPP 6. Whether Bharpur Singh respondent no. 1 was not having a valid driving licence on the date of accident, if so its effect? OPR 7. Whether deceased Bikramjit Singh @ Bikram Singh was travelling in the truck in question as owner of the goods (sand) being transported therein 7 if so its effect? OPP 8. Relief.” 10. The claimants examined PW3 Sukhwinder Singh, who claimed to be an eye witness to the occurrence and testified to the effect that the two vehicles were being driven from the opposite side, both at a high speed and recklessly and that both the drivers lost control, leading to the accident by which the truck turned turtle into the nearby ditches. As per this witness, the deceased was also travelling in the truck and that the fault was more of the bus driver. Contrary to the stand taken by the Corporation that owned the bus and its driver, this witness denied that any jeep was running between the bus and the truck. He further submitted that being illiterate, he could not give the registration number of the truck. In cross-examination, he again denied that any jeep was travelling ahead of the bus, that had suddenly applied its brakes on seeing the truck coming from the opposite side. 11. As per the impugned Award, the driver of the truck other than not having filing a written statement, also did not step into the witness box to testify. The bus driver however, testified in terms of the written statement filed on his behalf and that of his employers, stating about the jeep travelling ahead of the bus etc. 12. The Tribunal also noticed the testimony of Moharar Head Constable Gurdev Singh, to the effect that as per the DDR lodged by the truck driver, he was bringing the truck from Patiala to Samana with sand loaded in it and that the deceased had also boarded the truck at Patiala and that some other persons were also travelling in it. He further testified that as per the report, when the truck reached within the area of village Dhainthal at about 1:30 pm, a jeep was coming from the side of Samana, followed by the bus owned by the Corporation, with the jeep being at some distance from the truck. He further testified that as per the report, when the truck reached within the area of village Dhainthal at about 1:30 pm, a jeep was coming from the side of Samana, followed by the bus owned by the Corporation, with the jeep being at some distance from the truck. The driver of the jeep is stated to have suddenly applied brakes, due to which the bus driver also applied brakes to save the jeep and at the same time the bus turned, after which, in order to save the truck, the truck driver (complainant in the DDR), took it to the katcha side of the road, and because of the wet soil, the tyre of the truck got embedded in it, due to which the truck turned turtle on the left side. Thus, as per the DDR lodged at the instance of the truck driver, the version given by the bus driver and its owners, was corroborated. As per the HC, it was further stated in the DDR that one Amarjit Singh, Jagdish, Rishi Dev and the deceased were travelling in the truck and that the bus driver took the injured to the hospital at Patiala. As per the report, nobody was at fault in causing the accident. 13. Upon appraising the aforesaid evidence, the Tribunal held that though PW3 had stated that the driver of the bus and truck were both negligent and that the bus driver was more at fault, this witness neither mentioned anything about any jeep in between, nor that the bus and truck had hit each other on their respective right sides. The Tribunal also found that though the bus driver was alleged to have been more negligent, PW3 did not specify as to how that was so, especially as he did not say that the bus was covering the entire metalled road or that the bus driver did not give any space on the metalled road to the truck driver due to which the truck driver had to take the truck onto the non-metalled part of the road. In the aforesaid situation, it was held by the Tribunal that it had to be accepted that the version given in the DDR as also in the written statement of the owners and driver of the bus, was true, to the effect that there was a jeep between the two vehicles, the driver of which had suddenly applied brakes, due to which the bus driver had to also apply brakes. It was further held that since the bus was occupying its space on the left side and there was adequate space for the truck on is own metalled side, the truck driver unnecessarily took the truck onto the non-metalled portion, knowingly fully well that it had become soft on account of the rain, due to which the tyre got embedded in the mud, resulting in the truck turning turtle. This was held by the Tribunal on two grounds, firstly, that the truck driver had not stepped into the witness box in his own defence and secondly, since the owner of the truck had admittedly paid Rs.50,000/- to the claimants in some kind of settlement, it virtually amounted to an admission of the fault of the truck driver. On the above reasoning, the Tribunal held that it was the driver of the truck, i.e. presently the appellant in FAO No. 2367 of 1998, Bharpur Singh, who was negligent in driving the vehicle, leading up to the accident. 14. On issue No. 7, with regard to whether the deceased was travelling as a gratuitous passenger or as a custodian of the sand loaded in the truck, it was held that as per the original version in the claim petition, the deceased had taken a lift from the truck for going to his village and subsequently, the claimants had sought to amend the claim petition, pleading that the truck was loaded with sand which was purchased by the deceased, who was then travelling as a custodian thereof. However, PW3, who was admittedly known to the deceased, had not stated in his examination-in-chief that the deceased was travelling as a custodian of the sand and in fact, only in cross-examination, he admitted to a suggestion made by counsel for the claimants, that the deceased was travelling as such a custodian in the truck. However, PW3, who was admittedly known to the deceased, had not stated in his examination-in-chief that the deceased was travelling as a custodian of the sand and in fact, only in cross-examination, he admitted to a suggestion made by counsel for the claimants, that the deceased was travelling as such a custodian in the truck. Though the 3rd claimant, Gurcharan Kaur, in her testimony PW4, also deposed that her son was constructing a house and had gone to Patiala to purchase the sand and for some other domestic work, however, the version of the complainant was discarded by the Tribunal, as no other evidence with regard to construction of the house was led, either in the form of examination of any mason or labourer engaged in the construction work, or by showing that any large amount had been withdrawn from the bank to spend on the construction, or even by examining any neighbour to that effect. Further finding that the deceased was admittedly residing with his parents and no bills of purchase of any construction material had been proved, it was held that the story set up with regard to purchase of the sand was only to ensure that the deceased was not taken to be a gratuitous passenger and that the insurance company with which the truck was insured, was made liable to pay the compensation in an easy manner. Further more, the DDR lodged by the truck driver also having mentioned that the deceased had taken a lift in the truck, was also cited as a reason for disbelieving the story of the claimants in that regard. Consequently, it was held that the compensation to be paid to the claimants would not be the liability of the insurer, i.e. the insurance company impleaded as a respondent, even though the contention of the company to the effect that the truck driver was not carrying a valid driving licence was found to be incorrect. 15. The testimony of PW1, Dr. Manish Bansal of the DMC Hospital, Ludhiana, was also noticed in the impugned Award, to the effect that the deceased was admitted to the said hospital at 9:25 pm on 23.02.1995. The Bed Head Ticket of the deceased and the post mortem report were also found to be duly proved as Exs.A2 and A4 respectively. The testimony of PW1, Dr. Manish Bansal of the DMC Hospital, Ludhiana, was also noticed in the impugned Award, to the effect that the deceased was admitted to the said hospital at 9:25 pm on 23.02.1995. The Bed Head Ticket of the deceased and the post mortem report were also found to be duly proved as Exs.A2 and A4 respectively. Thus, on the aforesaid evidence, read with the affidavit of the claimants, Ex.RX, to the effect that they had received Rs.50,000/- from the owner of the truck, on account of the death of the deceased, it was held to be proved that the death of the deceased had occurred due to the accident. 16. On the issue of quantum of compensation payable to the claimants, it was found that though it was claimed that the deceased was cultivating 10 to 15 acres of land and was earning Rs.1,00,000/- therefrom and another Rs.10,000/- by selling milk from his dairy farm, from the testimony of the mother of the deceased, i.e. the third claimant (PW4), it was found that in cross-examination she had admitted that her son was not the owner of any land and that she was also not in possession any documentary evidence regarding the sale of agricultural produce and milk. She further deposed that her husband had given some of his land on lease and was keeping the remaining for feeding the cattle. She had also stated that her husband was getting Rs.4000/- to Rs.5000/- as lease money. Consequently, it was held that the deceased could at best be taken to be an able bodied 26 years old who was earning enough income as a labourer, which could be assessed at Rs.1500/- per month or Rs.18,000/- per annum. Applying a deduction of 1/3rd towards the personal expenses of the deceased, the loss of dependent income was worked out to Rs.12,000/- per annum and by applying a multiplier of 16 to that sum, the total loss of dependent income was assessed at Rs.1,92,000/-. 17. Applying a deduction of 1/3rd towards the personal expenses of the deceased, the loss of dependent income was worked out to Rs.12,000/- per annum and by applying a multiplier of 16 to that sum, the total loss of dependent income was assessed at Rs.1,92,000/-. 17. Further, though the claimants had claimed that they had spent Rs.1,00,000/- on the treatment of the deceased and Rs.25,000/- on his last rites, no documentary evidence was shown to have been led in that regard but finding that he had remained admitted in the hospital for about 8 to 9 days, a sum of Rs.15,000/- was taken to have been spent on his treatment and towards his funeral expenses, which was awarded as a lump-sum under those heads as also towards loss of estate and loss of consortium. Thus, a total compensation of Rs.2,07,000/- was awarded by the Tribunal, and finding that Rs.50,000/- had already been received from the owner of the truck, i.e. the present appellant in FAO No. 1166 of 1998, Rs.1,57,000/- was held to be payable by respondents No. 1 sand 2 (before the Tribunal), i.e. the owner and driver of the truck, alongwith interest @ 12% per annum, running from the date of the institution of the claim petition till the date of actual payment. 18. The first claimant, i.e. the widow of the deceased, having admittedly been found to have remarried and also found to have left her daughter in the care of the 3rd claimant and her husband, i.e. the parents of the deceased, it was held that she would be entitled to a lesser amount of compensation than the mother and daughter of the deceased. A compromise arrived at between the widow and parents of the deceased was also noticed by the Tribunal, by which the widow, despite being the nominee of the life insurance policy of the deceased, for a sum of R.26,675/- had agreed to deposit that sum in the name of her daughter till she attained majority, with the daughter entrusted to the custody of her grandparents. The said compromise deed was also led by way of evidence as Ex.A7, never refuted by the first claimant. The said compromise deed was also led by way of evidence as Ex.A7, never refuted by the first claimant. Consequently, the widow of the deceased was awarded a sum of Rs.27,000/- as compensation, with the remaining compensation still to be paid, i.e. Rs.1,30,000/- in the sum of Rs.1,00,000/- to the daughter of the deceased and Rs.30,000/- to the mother of the deceased. The compensation to be paid to the daughter of the deceased, i.e. the second claimant, was ordered to be deposited in a fixed deposit, with safeguards ordered to ensure that it was not used untill she attained majority. The claim petition was thus allowed to the aforesaid extent. 19. First addressing arguments before this Court on the issue of enhancement of compensation, Mr. Kuldip Sanwal, learned counsel appearing for the 2nd and 3rd claimants, i.e. the daughter and mother of the deceased, submitted that the Tribunal had wholly erred in firstly holding the deceased to be a labourer and thereby assessing his income to be only Rs.1500/- per month, in the year 1995. Learned counsel next submitted that the lump-sum of Rs.15,000/- only awarded on account of expenditure on the treatment of the deceased for the 8 days that he remained admitted in hospital, as also towards his funeral expenses and towards loss of estate and loss of consortium, was wholly and completely inadequate and in any case needed to be enhanced, other than the fact that no other amount was awarded to the 3rd claimant, i.e. mother of the deceased, for the loss of love and affection of her 26 year old son, nor to the 2nd claimant, i.e. the minor daughter, for loss of love and affection, care and guidance of her father, in an obviously infantile age. Though learned counsel for the respondents obviously opposed the aforesaid contentions, I do not find any reason to disagree with learned counsel for the appellants (appellants in FAO No. 1661 of 1998), as regards his contentions on inadequacy of the compensation awarded towards loss of love and affection, care and guidance, consortium, as also on account of the last rites of the deceased. However, as regards the contention that the income of the deceased was wrongly assessed, I find no merit in that argument, in view of the fact that with no evidence having been led, whatsoever, that the deceased was earning anything or could have been assessed to have an income other than that of a casual labourer, even if he was working to help his father look after the cattle etc., the income of Rs.1500/- per month assessed by the Tribunal is not found to be erroneous, in the year 1995. Similarly, a deduction of 1/3rd of that income towards the personal expenses of deceased is also not found to be erroneous. However, the multiplier of 16 applied to the income of a 26 year old deceased, is not found to be in consonance with the ratio of the law laid down in Smt. Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , wherein it is provided that where the deceased was in the age bracket of 26 to 30 years, the multiplier to be applied would be 17. Therefore, to the annual loss of dependent income of Rs.12,000/-, a multiplier of 17 is applied, thereby bringing the total loss of income to the claimants to be Rs.2,04,000/-. Though learned counsel for the appellants also argued that loss of future prospects of an increased income should also have been awarded to the claimants and I am not disagreement with that argument, in view of the fact that even simply due to inflation alone and rise in the cost of living, even the minimum daily wages/monthly wages of workers of different categories are increased from time to time by the Government, however, since that matter is subjudice before the Hon'ble Supreme Court, having been referred to a larger Bench in National Insurance Co. Ltd. vs. Pushpa, (2015) 9 SCC 166 , it would not be possible to hold that the said future prospects of an increased income are payable immediately to the appellants in FAO No. 1661 of 1998. Ltd. vs. Pushpa, (2015) 9 SCC 166 , it would not be possible to hold that the said future prospects of an increased income are payable immediately to the appellants in FAO No. 1661 of 1998. Yet, it would be appropriate to calculate such loss of future prospects of an increased income and direct the respondents liable to pay such compensation, to deposit the calculated amount with the Tribunal, which would then deposit the same in a fixed deposit in a nationalised bank, so as to draw maximum interest upon it, till the time of the decision of the Supreme Court in Pushpas' case (supra). If the ratio of the judgment comes to the effect that compensation for such loss of prospects of an increased income is also payable to the claimants in motor accident claims cases, where the deceased was not in a permanent salaried employment, then the appellants would be entitled to have the amount deposited disbursed to them in the same manner as an Award for compensation by the Motor Accident Claims Tribunal is executed; and if on the other hand, the ratio of the judgment in Pushpas' case holds that such loss of an increased future income is not payable in such cases, then the respondents who would deposit the said amount with the Tribunal, would be entitled to have the entire amount refunded to them. Needless to say, in either case, interest on the deposited amount as would have accrued in the fixed deposit, would be paid alongwith principal, to the persons entitled to draw such principal, upon the pronouncement of the judgment in Pushpas' case (supra). 20. As regards the payment of enhanced compensation under other heads, in the opinion of this Court, the second appellant in FAO No. 1661 of 1998, i.e. the minor daughter of the deceased would be entitled to a sum of Rs.1,00,000/- on account of the loss of love and affection, care and guidance of her father. Though the age of the said appellant-claimant is not given in the memo of parties either before the Tribunal or before this Court, she obviously could not have been of much age, considering that her deceased father was found to be only 26 years of age. Though the age of the said appellant-claimant is not given in the memo of parties either before the Tribunal or before this Court, she obviously could not have been of much age, considering that her deceased father was found to be only 26 years of age. Hence, I would hold that she was entitled to the aforesaid amount of compensation, for the loss of love and affection, care and guidance not only of her father but practically also of her mother, who remarried and left her in the care and guidance of her grand-parents. Similarly, the first appellant in the aforesaid FAO, i.e. the mother of the deceased, in the opinion of this Court, would be entitled to Rs.50,000/- as compensation for the loss of love and affection of her 26 year old son, even though, in my opinion, that is also not adequate compensation but is what is conventionally awarded to the parents of a deceased adult son/ daughter. Since the father of the deceased was not a claimant before the Tribunal, even though he is entitled to compensation for the loss of love and affection of his son, though not as a dependent on his son, however, he not being a claimant, nothing obviously can be awarded to him. Coming to the loss of consortium to the 5th respondent in FAO No. 1661 of 1998, though otherwise she would be entitled to Rs.1,00,000/- as loss of consortium, however, having remarried, she would perhaps be entitled to only Rs.50,000/-, but since she is not in appeal, and has obviously accepted whatever was awarded to her, nothing further is said in that regard either. 21. Next, coming to whether the sum of Rs.15,000/- awarded by the Tribunal was adequate even towards the medical expenses and last rites of the deceased. The deceased having remained admitted in a hospital for about 8 days before he died, i.e. 23.02.1995 to 03.03.1995 and that too after having first been taken to the Rajindra Hospital, Patiala and then to a Ludhiana Hospital, in my opinion, even in the year 1995, more than Rs.15,000/- would have been incurred on his treatment. However, since no evidence was led in the form of any bills of medicines purchased etc., the amount of Rs.15,000/- awarded by the Tribunal, is taken to be awarded only on account of the treatment of the deceased before he died. However, since no evidence was led in the form of any bills of medicines purchased etc., the amount of Rs.15,000/- awarded by the Tribunal, is taken to be awarded only on account of the treatment of the deceased before he died. As regards the funeral and last rites expenses of the deceased, though as per now settled law, Rs.25,000/- is to be awarded to the deceased under that head, however, since the accident took place in the year 1995, i.e. more than 21 years ago, a sum of Rs.15,000/- is awarded under that head. 22. Hence, the amount of compensation now awarded to the appellants, as can be immediately released to them, is as follows:- (i) Towards actual loss of income Rs.2,04,000/- (ii) Towards loss of love and affection of her son to appellant no. 1 Rs.50,000/- (iii) Towards loss of love and affection, care and guidance of her father to appellant no. 2 Rs.1,00,000/- (iv) Towards medical expenses of the deceased Rs.15,000/- (v) Towards last rites [(v) and (vi) awardable to appellant no. 1, appellant no. 2 being a minor at the time when the expenses were incurred] Rs.15,000/- Total Rs.3,84,000/- Thus, the amount now awarded by this Court, is Rs.1,77,000/- more than what was awarded by the Tribunal. This is other than the amount to be deposited by the respondents with the Tribunal presently, towards loss of future prospects of an increased income to the appellants- claimants. The amount to be deposited in terms of what has been held in paragraph 18 hereinabove, would be as calculated immediately hereinafter. The deceased having been found to have an income of Rs.18,000/- per annum and being 26 years of age, 50% of the said income is to be added to his income [if in such like cases such loss of future prospects of an increased income is held payable in terms of the ratio of the judgment to be delivered in Pushpas' case (supra)]. Thus, the annual loss of an increased income to the deceased to be Rs.9000/- of which Rs.3000/- is to be deducted towards his personal expenses, thereby coming to a loss of future prospects of annual increased income to the appellants in FAO No. 1661 of 1998, to be Rs.6000/-. Thus, the annual loss of an increased income to the deceased to be Rs.9000/- of which Rs.3000/- is to be deducted towards his personal expenses, thereby coming to a loss of future prospects of annual increased income to the appellants in FAO No. 1661 of 1998, to be Rs.6000/-. To that sum, a multiplier of 17 is to be applied, the deceased being 26 years of age, thereby coming to a sum of Rs.1,02,000/- as the loss of future prospects of an increased income to the appellants- claimants. Hence, this is the amount that would be deposited with the Tribunal by the respondents held liable to pay the compensation, which would in turn be got deposited by the Tribunal in a fixed deposit with a nationalized bank so as to draw maximum interest on it and would eventually be either disbursed to the appellants-claimants, or refunded to the depositing respondents, dependent upon the outcome of the ratio of the judgment in Pushpas' case (supra). 23. Hence, FAO No. 1661 of 1998 is allowed as aforesaid with cost of Rs.2500/- awarded to the appellants. 24. Coming next to the issue of the two other appeals filed by the owner and driver of the truck involved in the accident, who have been fastened with the liability to pay the compensation awarded by the Tribunal, i.e. FAO Nos. 1166 and 2367 of 1998. 25. Mr. Naresh Parbhakar, learned counsel appearing for the owner of the truck, Smt. Vidya Devi i.e. the appellant in FAO No. 1166 of 1998, firstly submitted that the Tribunal wholly erred in holding the driver of the truck, i.e. the appellant in FAO No. 2367 of 1998, to be guilty of negligence in causing the accident, inasmuch as, it was found that the driver of the truck had to turn the vehicle on account of the action of the on coming bus in suddenly applying the brakes and thereby comes towards the truck. He submitted that even though no finding was recorded to the effect that the two vehicles had actually hit each other as was claimed by the claimants, however, it was definitely found by the Tribunal that a jeep travelling in front of the bus had suddenly applied brakes, after which the bus driver had applied its brakes, leading to the truck driver turning the truck on to the non-metalled part of the road. He submitted that obviously the truck driver did so only to avoid hitting the bus and as such, he cannot be held to be at fault. 26. Learned counsel next submitted that the Tribunal further erred in holding that the deceased was a gratuitous passenger and therefore, the insurance company with which the truck was insured, was not liable to indemnify the owner of the vehicle, even if eventually the issue of negligence is decided against the truck driver. (This argument was made by learned counsel, without prejudice to his argument that the truck driver was actually not at fault at all). For the second argument, Mr. Parbhakar drew attention to Section 149 (2) of the Motor Vehicles Act, 1988, to submit that actually there was no breach of policy, as the deceased had purchased the sand being taken in the truck and was travelling as a custodian of the sand and therefore, was not a gratuitous passenger. Learned counsel also submitted that there was no collusion proved between the appellant, i.e. the owner, and the claimants, to hold that the insurer of the vehicle was not liable to indemnify the appellant-owner, even in terms of Section 170 of the Act of 1988. Lastly, Mr. Parbhakar submitted that the matter having in any case being compromised between the parties, by payment of Rs.50,000/- to the claimants by the appellant-owner of the truck, the claim petition did not lie against her in the first place. 27. Mr. Gurnam Singh, learned counsel appearing for the truck driver, i.e. the appellant in FAO No. 2367 of 1998, also reiterated the contention of Mr. Parbhakar as regards the negligence in causing the accident not being that of the appellant-driver, as also with regard to the insurance company being held not to indemnify the insured. Further, Mr. Gurnam Singh contended that the compensation awarded was also on the higher side, as no income of the deceased had actually been proved. Consequently, both learned counsel in these two appeals, of the owner and driver of the truck, naturally prayed that the appeals be allowed and the claim petition as well as the appeal filed by the claimants, be dismissed. 28. In response, Mr. Consequently, both learned counsel in these two appeals, of the owner and driver of the truck, naturally prayed that the appeals be allowed and the claim petition as well as the appeal filed by the claimants, be dismissed. 28. In response, Mr. Vipul Sharma, learned counsel appearing for the insurance company in all the appeals, submitted that the deceased having been found by the Tribunal to be a gratuitous passenger, the insurance company was rightly held to be absolved of any liability to indemnify the insured and as such, that part of the Award need not be interfered with. 29. Having heard learned counsel for the parties, first, on the issue of negligence, it is seen that as per the claim petition it was contended, as already noticed in detail, that the truck in which the deceased was travelling, was being driven in a rash and negligent manner by the appellant in FAO No. 2367 of 1998 and that in the meantime, the bus being driven by respondent Mangal Dass @ Mangal Ram, came from the opposite side and while crossing each other, the two vehicles struck against each other on the right side, due to which the drivers both turned their respective vehicles towards their left sides, but due to the fast speed of the truck, it turned turtle, leading to injuries to the occupants thereof, including the deceased. The only persons claimed to be an eye witness to the aforesaid accident, as was examined by the claimants, was PW3 Sukhwinder Singh, who in his testimony (2 years and 10 months after the accident), is seen to have stated that he knew the claimants and the deceased and that he owned land adjoining the main road, where he alongwith one Taranjit Singh were working on the date of the accident, and that he saw the truck in question coming at a very high speed from the side of Patiala, with the bus also coming at a very high speed from the side of Samana. As per this witness, the drivers of both the vehicles simply lost control over their vehicles and the truck turned turtle and fell to the ditches. PW3 further testified that there were three persons travelling in the truck, of whom Bikramjit Singh from his village and was taken out from under the truck. As per this witness, the drivers of both the vehicles simply lost control over their vehicles and the truck turned turtle and fell to the ditches. PW3 further testified that there were three persons travelling in the truck, of whom Bikramjit Singh from his village and was taken out from under the truck. He further testified that the bus had stopped, in which Bikramjit Singh was taken to the Rajindera Hospital and one Gurdeep Singh was instructed to intimate about the accident to the family members of Bikramjit Singh. The injured was then referred to the DMC Hospital, Ludhiana, from Patiala. As per PW3, the fault was more that of the bus driver and that there was no jeep between the bus and the truck. Other than that, the witness also testified to being illiterate and further, with regard to the age and income of the deceased, which is stated to be as was in the claim petition. 30. In cross-examination, other than reiterating his being illiterate, due to which he also did not know the number of the tractor with which he was levelling his land, but giving the extent of his own ownership of land, he further stated that no other vehicle was coming from either side and that the police never inspected the site. He admitted to not having reported the matter to the police, as “it was the job of the parents of the deceased.” He further deposed that the father of the deceased came to the spot within 20 minutes of the information being given to him. Not so relevant details apart, this witness also testified that first he saw the truck, then bus, when he standing near the road, about 20 yards from the site of the accident, with no trees at the site. He denied knowing the name of the bus driver or its conductor but stated that the driver was a Sikh gentleman. He again denied the presence of any jeep and stated that both the vehicles were being driven at a high speed, rashly and negligently, with the bus being at a speed of about 100 kmph. The rest of the cross-examination, mainly by the counsel for the insurance company, is with regard to the income of the deceased, the remarriage of the first claimant etc. 31. The rest of the cross-examination, mainly by the counsel for the insurance company, is with regard to the income of the deceased, the remarriage of the first claimant etc. 31. As opposed to this testimony is the testimony of the bus driver as RW1, who reiterated the version of the jeep being in front of the bus and that the bus had just off-loaded passengers at the bus-stand, Dhainthal, when the jeep over took it. He further deposed that the truck was coming from the opposite side at a very high speed, loaded with sand, with some persons sitting in it. In cross-examination, this witness deposed with regard to the distance of the site of the accident from Samana etc. and further that two heavy vehicles can simultaneously pass on the metalled road at the site of the accident. He also testified to the effect that he did not know the registration number of the jeep which took over him, nor could he give the description of its driver, as it was a closed jeep. 32. Hence, the aforesaid is the testimony of the only persons shown to be eye witnesses of the accident, as were examined, and other than that, is the testimony of the Head Constable, PW2, Gurdev Singh, who proved the copy of the DDR dated 24.02.1995, as Ex.A3. A perusal of the said DDR, which was registered the next day after the accident, shows that the version of the accident given by the truck driver, i.e. the appellant in FAO No. 2367 of 1998, is the same as the version of the bus driver, to the effect that the jeep driver suddenly applied brakes, due to which the bus driver also applied brakes, further due to which the truck driver had taken his truck onto the non-metalled part of the road. In the opinion of this Court, with the DDR lodged one day after the accident, it cannot be inferred with certainty to be the true version given by one of the drivers of the vehicles involved in the accident, so as to accept it to be a wholly correct version without any improvements made in it. In the opinion of this Court, with the DDR lodged one day after the accident, it cannot be inferred with certainty to be the true version given by one of the drivers of the vehicles involved in the accident, so as to accept it to be a wholly correct version without any improvements made in it. It seems very obvious that both, the truck and bus driver, tried to ensure that neither of them were attributed any negligence and therefore, an unknown jeep was referred to, the driver of which suddenly applied brakes, due to which the bus driver also applied brakes and for that reason, the truck also had to be taken to the non-metalled part of the road. No doubt, very possibly that could also be the correct version of the accident, but either which way, with the truck driver himself also not attributing any negligence to the driver of the bus, in the DDR lodged at his instance, duly produced in evidence by an official of the police station where it was lodged, then, in such a situation, the testimony of PW3, Sukhwinder Singh, would have to be disregarded by this Court, especially as it was a testimony of a person who admitted to knowing the claimants and the deceased. 33. Thus, with the truck driver virtually absolving the bus driver of any negligence, the question which remains to be seen is as to whether the accident happened wholly on account of the fault of the jeep driver who was never identified, (nor was, in fact, any detailed identification of the jeep given), or was there any negligence of the truck driver himself. Whether or not the jeep was an introduction by both drivers to try and ward off any negligence from themselves, one fact that appears very clear, is that the truck was obviously being driven at a high speed, due to which, even if it was taken onto the non-metalled part of the road possibly due to a emergent situation on the road, it turned turtle. Had the fully loaded truck, which is expected to be driven at a very moderate speed, been driven at a low speed, then even if it was taken onto the non-metalled part of the road, in the opinion of this Court, it would not have turned turtle in the manner described. Had the fully loaded truck, which is expected to be driven at a very moderate speed, been driven at a low speed, then even if it was taken onto the non-metalled part of the road, in the opinion of this Court, it would not have turned turtle in the manner described. It was obviously being driven at a high speed and therefore, being a vehicle loaded with sand, at that speed on a sudden turn taken onto the non-metalled part of the road, the equilibrium/balance of the vehicle was upset, thereby making it turned turtle. Hence, in the aforesaid situation, I agree with the eventual finding on the issue of negligence, as recorded by the Tribunal, that it was the fault of the driver of the truck, i.e. the appellant in FAO No. 2367 of 1998 herein, that caused the accident leading to the death of Bikramjit Singh. 34. Next, coming to the issue of the liability to pay compensation, I also find no error in the finding of the Tribunal to the effect that with the original claim petition not having stated anything with regard to the purchase of sand by the deceased and him therefore being a custodian of it, the second version given in the amended claim petition with regard thereto, cannot be accepted. This is especially so, in view of the fact that even in the DDR lodged the next day, the driver of the truck, i.e. the appellant in FAO No. 2367 of 1998, did not utter a word to the effect that the deceased had actually purchased the sand already loaded in the truck and that thereafter he was taking him to his village. A perusal of the DDR, which is present in the records of the Tribunal put up to this Court, simply shows that it was recorded by the truck driver that the deceased and one Joginder boarded the truck at Patiala when he (the truck driver) was bringing sand from Ropar taking it Samana. A perusal of the DDR, which is present in the records of the Tribunal put up to this Court, simply shows that it was recorded by the truck driver that the deceased and one Joginder boarded the truck at Patiala when he (the truck driver) was bringing sand from Ropar taking it Samana. In the opinion of this Court also, that would amply prove that the deceased was actually a gratuitous passenger on a goods vehicle, and as such, such a passenger not having been shown to be covered by the policy issued by the respondent insurance company that had insured the truck owned by the appellant in FAO No. 1166 of 1998, the company would not be liable to indemnify the owner with regard to any compensation found payable by the owner, or by the driver of the truck. This is in addition to the fact that the Tribunal also found that no evidence whatsoever was led with regard to any construction taking place in the house of the deceased, other than the oral testimony of PW3, who, as already noticed, was actually a person known to the claimants and thus, in the circumstances, is held to have simply testified in their favour. 35. In view of the aforesaid findings, I find no error in the impugned Award as regards the findings on the issues of negligence, and on the liability of the owner and driver of the truck, i.e. the appellant in FAO No. 1166 and 2367 of 1998, to pay compensation to the claimants. The liability of the owner and driver is thus upheld to be joint and several. Consequently, FAO Nos. 1166 and 2367 of 1998 are dismissed, but with no order as to costs. 36. As already held in paragraph 23, FAO No. 1661 of 1998 has been allowed to the extent of enhancement of compensation given in this judgment, with costs of Rs.2500/- awarded to the appellants.