Mohindro Devi wd/o Sat Pal daugher of Phagu Ram v. Sukh Ram

Mr. V. Chaudhary, Advocate for the insurance company. Mr. Ajay Nara, Advocate. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? K. KANNAN J.(ORAL) -.-

1. The appeal is against the decree of dismissal for a claim arising out of the death of one Satpal, who was aged 24 years and the claim was at the instance of the wife, a minor child, the parents and the unmarried brother aged 13 years. The deceased was said to be 24 years of age and while he was travellig in a cycle, he had turned from left to roadside of the road without minding a truck which was coming from the opposite side, got hit and killed in the accident. The accident was reported by one Joginder Singh on whose statement was the FIR recorded. The Tribunal found that the accident had taken place only by the negligence of cyclist and therefore, the claim for FAO No.48 of 1991 -2- compensation was not tenable.

2. The accident was spoken to by PW-1 and PW4, who were alleged to be the eye witnesses. PW-1, Arjun Singh gave evidence to the effect that he was going from Ambala Cantonment to his village on a bicycle and the deceased was going in his cycle about 5 to 6 yards ahead of him when Satpal turned to the right for going to the village Khuda Khurad. The insured's truck came from the direction of Jagadhari at a very high speed and struck against the left side of the cycle, dragged the bicycle towards the left side and went down the pit by the side of the road and crushed Satpal under the axle between the wheels. The cross-examination of this witness, who had spoken to reasonable details was indeed skeletal and there was no more than a suggestion to him that the police had not met him and called him even after the accident and he had also not gone to the police station. It was suggested that he was not present at the time of the accident and that Satpal struck against the truck by his own negligence. That point that is to be noticed here was that the involvement of the vehicle or the impact of the truck and cyclist itself was not in denial. On the other hand, a negligence was attributed to the cyclist. PW4, who had given the complaint had stated that he had reached at the turning of the road for village Khuda Kurad for grinding at Chakki nearby. He said that he saw the deceased Satpal coming in the cycle from Ambala Cantonment and he has swerved on the left side of the road for turning towards village and at that time, the truck coming from the opposite direction from Jagadhari struck against the bicyclist. Two or three persons were said FAO No.48 of 1991 -3- to have been reached at the site and that we removed. The contradiction, which was elicited from this witness was that Satpal had not turned towards the village and he was still on the portion of the road on the left side when the truck dashed against him. It could be recalled that PW-1 had stated that the accident took place when he had taken turn to the right. This contradiction was found as material to discredit the statement that the driver of the truck was alone rash and negligent.

3. I am of the view that the approach of the Tribunal was wholly faulty. Learned counsel for the insurance company would argue that there was no negligence at all of the truck and the accident had taken place only by the negligence of the cyclist. Any driver of a motor cycle ought to know that a cyclist or a pedestrian has just as much use for the road as they have. There shall be a greater degree of circumspection for a driver on a motor vehicle, than a pedestrian or a cyclist. The reasons are obvious. A pedestrian dashing against another pedestrian does not cause death nor a cyclist could cause death to a pedestrian. It is only a faster moving vehicle with heavier mass can cause death by its impact. A person that drives a truck ought to be prepared at any time for even a careless use of the road by a pedestrian or a cyclist. I will be loath to infer an element of negligence for a cyclist or a pedestrian ever. I would, on the other hand, hold a driver of the motor cycle to be always responsible if there results an impact with the cyclist and he comes to harm and in this case, a person was crushed to death. It will be wrong to assume that a driver, who could drive the vehicle FAO No.48 of 1991 -4- carefully, would cause death by the negligence of another. Even an issue of contributory negligence in such situations ought not to be easily inferred. I would, therefore, reverse the finding that the accident took place only by the negligence of the cyclist and that the driver of the truck was careful in his driving.

4. As regards the status of the deceased, he was said to a Mason earning Rs.2400/- per month. The PW2 was a Mistri, who gave evidence to the effect that he used to employ the deceased as a Mason on payment of wages and that he was paying flatly Rs.40/- per day initially in the year 1986 and later increased to Rs.45/-. He was used to be earning amount in the range of Rs.1600/- to Rs.1700/- per month. The suggestion was that he was earning Rs.600/- to Rs.700/- per month. I would take the income to be in the range of Rs.15,000/- annual having regard to the fragile nature of evidence relating to his income. The deceased supported a family comprised of his wife, son, parents and unmarried brother. In the presence of the parents, I would discard the claim for brother and I would take the wife, son and the parents to be the dependents. I will make a provision for 1/4th deduction for personal expenses and had the contribution to the family at Rs.11,250/- per year. I would adopt a multiplier of 18 and take the compensation payable at Rs.2,02,500/-. I will add Rs.5,000/- towards loss of consortium and Rs.2500/- for loss of love and affection for the child and I will provide for further sum of Rs.5,000/- towards loss to estate and funeral expenses. In all the total compensation payable will be Rs.2,15,000/-. Out of this amount, the parents shall be entitled to 1/4th of the amount equally FAO No.48 of 1991 -5- and the remaining 3/4th shall be divided between the wife and son equally. As regards the liability of the insurance company, the Tribunal had found that the policy of insurance covered the period from 25.05.1988 to 24.08.1988. It ought to be evidently a mistake, for the policy of insurance ought to be at least for a year and in any event while answering issue No.5 itself, the Tribunal had taken the issue against the insurance company meaning thereby the reference to 24.08.1988 must be a typographical error. The accident had taken place on 18.11.1988 and it ought to have been, therefore, within a period of one year from the date of commencement of the policy.

5. The appeal is allowed to the above extent. Any amount that has been paid to the claimant under no fault liability shall be duly credited at the time of the payment. December 06, 2010 Pankaj* (K. KANNAN) JUDGE