Nasib Kaur And Ors. vs Balbir Singh And Ors.
1986 Latest Caselaw 53 Del

JUDGMENT

S.B.Wad, J.

(1) This is the claimants' appeal for enhancement of compensation. The claimants had claimed Rs. 1,15,000 but the Tribunal had awarded only Rs. 19,125.00 as compensation. The cross-objections have been filed on behalf of the Driver, the owner and the Insurance Company. Sarwan Siagh, deceased, was crossing the road near Lajpat Nagar bus stand and when he had crossed about half of the other road an oil tanker HRH- 4108 driven by respondent No. 1 came with a high speed from Ashram side and knocked down Sarwan Singh. Sarwan Singh was run-over under the wheels of the tanker and he died on the spot. The respondents contended that when the tanker was passing the road the deceased suddenly came from the fight side of the road running for crossing the road. On seeing him the Driver swerved the vehicle but the deceased came and bit on the tanker himself.

(2) Public Witness 4, Vinod Kumar, is an eye witness and he has supported the version of the claimants. Public Witness 9., Krishan Lal, is also an eye witness. He was present on the spot when the accident took place. He had stated that the oil tanker came with a high speed and the front bumper hit the deceased and he was run over under the wheels of the tanker. I have been taken through the evidence of the eye-witness and I am satisfied that they are natural witnesses. The respondents had produced the Driver of the vehicle being R.W. 1. The Tribunal found that his evidence was not reliable, considering the eye witnesses' evidence and the evidence of Public Witness 13,Dr.B.L. Aggarwal, who had conducted the postmortem examination. I entirely agree with the findings of the Tribunal. It is, therefore, held that Sarwan Singh died because of the accident caused by rash and negligent driving of vehicle number HRH-4108 and the owner and Insurance Company are liable to pay the compensation.

(3) The employer of the deceased (P.W. 14) has stated in the evidence that the deceased was being paid Rs. 400.00 per month as a consolidated salary. The Tribunal was wrong in holding that his salary was only Rs. 300.00 . On the face of the evidence of the employer it was not permissible for the Tribunal to enter info any conjecture with regard to the salary of the deceased. In the apportionment of Rs. 175.00 for personal expenses the Tribunal has further fallen in error. The deceased was supporting the family consisting of his wife and four children in addition to his old parents who were also living with him, although the father was also earning. Considering the liability to feed at least his own family it will be reasonable to deduct Rs. 100.00 per month for personal expenses of the deceased. The Tribunal has calculated the dependency for a period of 15 years. No basis has been given for coming to the said conclusion. The deceased was only 35 years old and it is quite reasonable to presume that he would have contributed to the welfare of his family at least for another twenty years. The claimants would, therefore, be entitled to compensation of Rs. 72,000.00 . I am not inclined to make any deduction on account of the lump sum payment because of the high inflation and considering the liabilities towards four childrens who were all minors at the time of the accident.

(4) The Tribunal has awarded only Rs. 19,125.00 as compensation. Since I am raising the compensation amount, counsel for the Insurance Company has submitted that the liability of the Insurance Company was limited only to Rs 20,000.00 . In para 16 of the Claim Petition the claimants had stated that the vehicle was comprehensively insured A common written statement was filed on behalf of the owner and the Insurance Company and this averment was not denied. However, the written statement raised the preliminary objection stating that under Section 95 of the Act the liability of the Insurance Company was limited only to Rs. 20.000.00 . Here the real question is not as to what Section 95 states but as to what was the commitment under the insurance policy. It is seen from the record that after the case was set for arguments before the Tribunal an application was moved on behalf of the respondents to permit them to produce evidence in regard to policy. This was permitted by the Tribunal by its order dated 17-8-1976. Thereafter, RW-2, Shri Pishori Lal Chadha, was examined on 17-9-1976. R.W. 2 claimed to be one of the partners of M/s. Chadha and Company. He deposed that the vehicle in question was attached to his company. He produced a policy in original but that was for the subsequent period. He admitted in his evidence that the original policy covering the relevant period of accident was not traceable. R.W. 3, Shri H.K. Khanna has thereafter produced an original policy but the same was also for the subsequent period and is not relevant for our purpose. R.W. 3 was an officer of the company. It may be noted that Mr. Hazoor Singh, the original owner, has not come in the witness box at all. In what capacity R.W. 2 has produced the original policy for the subsequent period in this matter is not known. A duplicate copy of the original policy cannot be taken in evidence. The respondents had made a special application for the production of evidence with regard to the policy, covering the period of accident, at the time when the matter was at the stage of arguments and the Tribunal had permitted them to do so. At least the Insurance Company should have produced an office copy of the relevant insurance policy but they did not do so They produced only the original policy for the subsequent period. In this state of affairs the respondents and particularly the Insurance Company shall be held by its own statement in the written statement that the policy in question was a comprehensive policy.

(5) For the reasons stated above the Insurance Company is liable to pay a sum of Rs. 70,000.00 only by way of compensation to the claimants. The claimants are also entitled to 6 per cent simple interest from the date of the application till the date of realisation of the amount. It is stated that Insurance Company has already paid Rs. 19,125.00 the awarded amount. They shall be given credit for the same both in terms of the principal compensation and the interest. The appeal is allowed. The crow-objections are dismissed.