Smt. Parkashi & Ors. v. Sh. Gopi Chand

Present: Mr. Sunial Pawar, Advocate for the appellants. Mr. Ashwani Talwar, Advocate for respondent No.3. None for other respondents. 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 claim petition for compensation for death of the 1st claimant's husband was dismissed on the ground that the claimants had not established the negligence in the manner referred to in the petition. The accident had taken place when the deceased had hired an auto rickshaw which was insured with the Oriental Insurance Company Limited and it ran over a heap of sand, turned turtle and fell on the middle of the road when yet another truck bearing registration No.HPS-6674 hit against the auto rickshaw. The deceased, suffered head injuries, was given treatment at the military hospital for some time and later shifted to PGI, Chandigarh FAO No.1166 of 1999 -2- where he succumbed to the injuries.

2. In the petition, it had been averred that the accident had taken place essentially by the negligence of the truck driver but in the course of trial, it has been stated that the accident had taken place by the rash and negligent driving of both the drivers but in the course of trial, the evidence was let in through PW-3, who spoke with reference to the details of how the auto rickshaw ran over heap of sand rolled over to get ultimately dashed against a running truck. The Tribunal found this inconsistency to be so inexplicably formidable that it adopted a strange logic to dismiss the petition itself. To say the least, the disposal of the petition in the manner done was grossly inappropriate and wrong. The claimant, who files a petition and who amongst them was the widow herself she was not an eye-witness. In the situation where there has been a collision of two vehicles, it was nothing unusual for claimant to say that both the vehicles were responsible for the accident. Indeed they were. However, when an eye-witness gives evidence and narrates the facts as he has seen and states from his perception that the accident essentially arose out of the negligence of the driver of an auto rickshaw, the Tribunal ought not to have seen that there was any incongruity in such versions. On the other hand, I would see that it is the most natural evidence for a person to give who has seen the accident but a person who had not seen and who had merely referred to both vehicles as being responsible for the accident was saying what she thought was true. I would not hold the auto rickshaw fully responsible for the accident and I would still apportion the liability FAO No.1166 of 1999 -3- between the auto rickshaw driver and the truck driver in the range of 75:25 respectively.

3. However, as far as the deceased was concerned, it was a case of composite negligence and a right of enforcement of the claim ought to be available jointly and severally against the joint tort feasors. I will allow the claimants to enforce the claim for compensation against any one of them namely against the owner insured, who would be entitled to indemnity from the insurer Oriental Insurance Company Limited and the owner of the truck Hari Dutt, who is arrayed as 5th respondent in the appeal.

4. The amount of compensation determined by the Tribunal but not awarded by the Tribunal was Rs.3,16,800/-. The counsel states that the deceased was a Lance Naik in ITBP drawing a salary of Rs.2460/- per month, who was aged 27 years and I would provide for a 50% increase and take Rs.3690/- as his average salary for the length of his career. The claimants were a young widow, a minor child and aged parents. I would take the number of dependents to be 4 and provide for a deduction of 1/4th for personal expenses and take the contribution to the family at Rs.2767.50. The annual dependence would be Rs.37,210/- and if I take the multiplier of 17, the compensation that will become payable would be Rs.5,64,570/-. I would add Rs.5,000/- for loss of consortium and Rs.5,000/- for love and affection for the minor child and add another Rs.5,000/- towards loss to estate and funeral expenses. In all, the sum that will become payable would be Rs.5,79,500/-. Out of this amount the parents will be entitled to Rs.75,000/- each and the rest of the amount shall be FAO No.1166 of 1999 -4- paid to the widow and the minor child. Having regard to the fact that the accident had taken place in the year 1994 and more than 16 years have been elapsed, I would not make any direction for retention of any portion of the amount in the Tribunal. It appears that the Tribunal had awarded Rs.50,000/- on no fault basis against the insurance company with 12% interest. The same shall be adjusted against the award, which is now passed. The amount is excess of what has already been awarded by the Tribunal shall carry interest @6% from the date of the petition till the date of payment.

5. The decision of the Tribunal is modified and the appeal is allowed to the above extent. While affording to the claimant a right of enforcement of the award against any one of the tort feasors or its insurer, I make it clear that any party, which is called upon to pay any amount in excess of the liability apportioned will have a right of recovery in the execution proceedings against the joint tort feasor or its owner. October 12, 2010 Pankaj* (K. KANNAN) JUDGE