Punjab-Haryana High Court
(O&M) Budh Ram vs Xen Pwd B&R Sirhind & Ors on 5 April, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
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FAO-465-2006 (O&M)
-1-
201
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
FAO-465-2006 (O&M)
Date of Decision : 05.04.2024
Budh Ram ....Appellant
VERSUS
XEN PWD B & R Sirhind and others ....Respondents
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. P.S.Punia, Advocate for the appellant.
Mr. M.K.Singla, Advocate for respondent Nos. 7 and 8.
Mr. Vinod Chaudhri, Advocate for the respondent - Insurance Co.
-.-
SUDEEPTI SHARMA, J. (Oral)
1. The present appeal has been preferred against the award dated
26.10.2005 passed by the learned Motor Accident Claims Tribunal, Fatehgarh
Sahib.
2. The brief facts of the case as mentioned in the claim petition are that
on 26.06.1999 at about 6.00 PM Ishar Singh, the father of the claimant was going
to his house after taking bath on a tubewell and when he reached near the house of
Sit Singh son of Chanan Singh of village Sounti, a truck bearing No. PB-11-A-
9729 loaded with gravel was being reversed by Amritpal, respondent No.3, in a
rash and negligent manner at full speed without blowing any horn or bothering
about the rear view and thereby it crushed Isher Singh and caused his death. There
was no cleaner in the offending truck. The claimant reported the matter to the
police on the next day and DDR was recorded about the incident. On 27.06.1999
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post mortem was conducted on the dead body of Isher Singh at Civil Hospital,
Mandi Gobindarh. Ishar Singh was 58 years of age at the time of accident and he
was labourer, earning Rs.3000/- per month. The claimant accordingly prayed for
compensation.
3. Upon notice respondents appeared and denied the averments made by
the claimant.
4. From the pleading of the parties, the Tribunal has framed the
following issues:-
1. Whether Isher Singh died on 26.09.1999 at 6.00 PM at Village
Saunti, on account of rash and negligent driving of truck No.PB-11-
A-9729? OPP
2. Whether claimant is entitled to compensation on account of
legal heirs of deceased Isher Singh. If so, at what amount and from
whom? OPP
3. Whether respondent No.4 has already sold above referred truck
No.PB-11-A-9729 to Mukhtiar Singh on 19.11.1997 vide agreement
dated 19.11.1997? OPR-4
4. Relief.
5. Learned counsel for the appellant submits that only because the name
of the eye-witness was not mentioned in the DDR, it would not falsify the claim
petition. He further submits that post mortem report was not taken into
consideration while passing the award, wherein it is clearly written that the cause
of death is haemorrhage and shock and the evidence of doctor was also not taken
into consideration while passing the award. Learned counsel has relied upon para
18 of the judgment of this Court in the case of United India Insurance Company
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Ltd. Vs. Sham Lal and Others, 2010(4) R.C.R (C) 975, which is reproduced as
under:-
"18. On consideration, I find no force in the contentions raised by
the learned counsel for the appellant. It may be noticed that this
argument raised by the learned counsel for the appellant was
considered by the learned Tribunal, and was rejected in view of the
fact that eyewitnesses to the accident had supported the accident as
mentioned in the claim petition. Furthermore, the driver of the
offending vehicle had chosen not to appear in the witness box to prove
the case set up in the written statement. Reading of the written
statement itself shows that the factum of accident was admitted, as
negligence of the accident was attributed to the claimant/respondent,
by the driver of Indica car."
6. Learned counsel further replies upon the judgment passed in case of
the New India Assurance Company Limited Vs. Ginni Devi and Others 2022(2)
TAC 440, wherein it has been held as under:-
"9. Having heard the counsel for the appellant and having perused
the case file, this Court does not find any substance in the arguments
of the counsel for the appellant. Undisputedly, respondent No.1 i.e. the
driver of the offending vehicle had admitted the factum of the accident
as such. Therefore, the argument of the counsel for the appellant that
the involvement of the vehicle becomes doubtful only because the wife
of the deceased has made a statement that she was told the number of
the offending vehicle by Raju and Raju had gone to Bihar on the day
next to the accident, is totally irrelevant. Although the factum of telling
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the number of the offending vehicle to the wife of the deceased by Raju
is not negated by the fact that the next day Raju had gone to Bihar,
however, this entire aspect is totally irrelevant when the driver of the
offending vehicle himself has admitted the factum of accident as such.
10. The argument of the counsel for the appellant that the DDR gave
the first version qua the nature of the accident and therefore, the
offending vehicle was not negligent is also without any substance. It is
not even in dispute that the deceased was not negligent in his driving.
He had undisputedly stopped his motorcycle on the side of the road
and fell on the road only because of having been hit by one of the
fighting bulls. The offending vehicle came and hit against the body of
Munna Shah. The eye witness has deposed as to the negligence in
driving of the offending vehicle. If respondent No.2 claims no
negligence in the accident on the part of the offending vehicle, then
having admitted the factum of accident, it was for the respondents to
lead evidence to substantiate their assertion that the driver of the
offending vehicle was not negligent. However, the driver of the
offending vehicle has not even appeared as a witness before the
Tribunal so as to face the cross-examination by the claimants. No
other evidence has been led on file by the Insurance Company to
negate the assertion of the claimants qua the negligence in driving of
the offending vehicle by respondent No.1. In view of positive testimony
in the form of statement of pillion rider Happy, mere recording of the
DDR in a particular manner is an irrelevant fact qua the aspect of the
claim petition. In fact, any criminal proceedings qua an accident are
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not of much relevance except to suggest the factum of an accident
having taken place. Any other detail has to be claimed and proved by
leading evidence in the claim petition independently. However, in the
present case though the claimants have led positive evidence qua the
negligence of the driver of the offending vehicle, yet the respondents
have not led any evidence to rebut the same. Hence, even this
argument of the counsel for the appellant is bound to be rejected."
7. Per contra, learned counsel for the respondent argued that narration
given in the DDR at the very instance of the complainant cannot be set aside. He
relies upon the judgment of this Court passed in the case of Pritam Singh Vs.
Jaswant Singh and Others, 2016 (2) PLR 125, wherein it has been held as under:-
"11. It is not disputed that Ex.P3 is the first version of the accident
narrated by the appellant to the police wherein it is mentioned that
the accident had taken place per chance and, there was no fault of the
bus driver and he does not want to initiate any action against the bus
driver. The appellant cannot be allowed to wriggle out from the
initial version of the occurrence. In case Surinderjit Singh Ve. Kuldip
Rai Thapar and others 1982 PLR 711 in the statement immediately
made after the accident, the claimant absolved the car driver of his
negligence. Later on he filed the petition claiming compensation.
This Court held that claimant cannot resile from the statement made
to the police. The same ratio of law has been laid down by this Court
in case Jagdish Kaur and another Vs. Raghbir and others 2004(1)
PLR 670. The ratio of law laid down in the cases referred above is
fully applicable to the facts of the case."
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He further contends that the claim under Section 166 has to be proved,
whereas in the DDR it has been written in the last four lines "that there is no fault
of anyone and the claimant does not want to take any action." Further the
contention is that the eye-witness is planted since his name is not there in the DDR.
He further contends that in his statement Budh Ram (PW-1) states that Bir
Davinder Singh (PW-2), who is an eye-witness in the present case accompanied
him to the hospital and the police station, whereas Bir Davinder Singh (PW-2) in
his cross-examination categorically denied that he accompanied Budh Ram (PW-1)
to the police station. He further contends that the accident never took place
because of rash and negligent driving on the part of the driver of the offending
truck.
8. I have heard learned counsel for the parties and thoroughly gone
through the record.
9. A perusal of the statement of PW-1 Budh Ram, PW-2 Bir Davinder
Singh (eye-witness) proves the factum of accident since there are no major
contradictions in their examination-in-chief as well as cross examination. Further,
in his statement Ex.P/3, Dr. Ranjit Singh, Medical Officer, Civil Hospital, Mandi
Gobindgarh, stated as under:-
" that on 26.6.1999, I was posted at Civil Hospital, Mandi
Gobindgarh and at that day Ishar Singh deceased was brought after
being met with an accident as he was crushed by a speedy truck. Ishar
Singh deceased was brought in a very critical condition to the
hospital. The matter was reported to the police by the claimant and a
DDR was lodged in the police station Amloh next day at 3.30 P.M.
Postmortem upon the dead body of the Ishar Singh who succumbed to
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his injuries, was got conducted vide Post mortem report No. 2/RS/99
dated. 27.6.1999 by me in the capacity of Medical practitioner at Civil
Hospital, Mandi Gobindgarh, Distt. Fatehgarh Sahib. As per post
mortem report whole the abdomen including upper part of both thighs
and external genital body torn and crushed. Intestine is crushed. Liver
coming out of the right plank of burst abdomen. Collected blood
present in the wound. Fracture on the left clavical and upper part of
left humurous at the left shoulder joint. Right leg amputated below its
lower 1/3rd. Amputated part lying separate. Fracture at the level - or
right elbow joint. Cause of Death:- Haemorhage and shock because of
A above mentioned injuries."
Even in his cross-examination, he stated that the death is caused due to
the accident.
10. Gurminder Singh (PW-4), in his statement filed by way of affidavit
has stated that on 26.06.2004, he was called by Budh Ram (S/o Ishar Singh), who
stated about the incidence. He was asked to click the photographs of the spot. He
further stated in his affidavit that he accompanied Budh Ram to the spot and he saw
the body of said Ishar Singh lying in a pool of blood there and he clicked the
photographs. In his cross-examination no discrepancy was found.
11. Learned Tribunal has denied the claim to the appellant only on the
ground that in the DDR (Ex.A/2), it was stated by claimant - Budh Ram (PW-1)
before the police that his father was hard of hearing and could not hear the horn of
the truck and accident had taken place naturally and suddenly without any fault of
any person. The claim is further denied on this ground as well that the name of Bir
Davinder Singh (PW-2), who is eye-witness in this case, does not find mention in
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the DDR. A perusal of the award shows that whole record/evidence has been
totally ignored by the learned Tribunal while dismissing the claim petition.
12. Hon'ble Supreme Court in Sunita and Others Vs. Rajasthan State
Road Transport Corporation & Another [2019(2) R.C.R (Civil) 209] in Para 31
has held as under:-
"31. Similarly, the issue of non-examination of the pillion rider,
Rajulal Khateek, would not be fatal to the case of the appellants. The
approach in examining the evidence in accident claim cases is not to
find fault with non examination of some "best" eye witness in the case
but to analyse the evidence already on record to ascertain whether
that is sufficient to answer the matters in issue on the touchstone of
preponderance of probability. This court, in Dulcina Fernandes
(supra), faced a similar situation where the evidence of claimant's
eye-witness was discarded by the Tribunal and the respondent was
acquitted in the criminal case concerning the accident. This Court,
however took the view that the material on record was prima facie
sufficient to establish that the respondent was negligent. In the present
case, therefore, the Tribunal was right in accepting the claim of the
appellants even without the deposition of the pillion rider, Rajulal
Khateek, since the other evidence on record was good enough to
prima facie establish the manner in which the accident had occurred
and the identity of the parties involved in the accident."
13. In view of the above discussion, the present appeal is allowed and the
award passed by the Tribunal is set aside.
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14. Hon'ble Supreme Court in the case of National Insurance Company
Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under
Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following
aspects:-
(A) Deduction of personal and living expenses to determine
multiplicand;
(B) Selection of multiplier depending on age of deceased;
(C) Age of deceased on basis for applying multiplier;
(D) Reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses, with escalation;
(E) Future prospects for all categories of persons and for different
ages: with permanent job; self-employed or fixed salary.
The relevant portion of the judgment is reproduced as under:-
" Therefore, we think it seemly to fix reasonable sums. It
seems to us that reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and funeral expenses
should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively.
The principle of revisiting the said heads is an acceptable
principle. But the revisit should not be fact-centric or quantum-
centric. We think that it would be condign that the amount that
we have quantified should be enhanced on percentage basis in
every three years and the enhancement should be at the rate of
10% in a span of three years. We are disposed to hold so
because that will bring in consistency in respect of those
heads."
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15. In view of the law laid down by the Hon'ble Supreme Court in the
cases of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. [(2009) 6
SCC 121]; Pranay Sethi (supra) and Magma General Insurance Company
Limited Vs. Nanu Ram alias Chuhru Ram & Ors. [(2018) 18 SCC 130], the
claimant-appellant is held entitled to the compensation amount calculated as under:
Sr. Heads Compensation Awarded
No.
1 Monthly income of the Rs.1500/-
deceased
2 Annual Income of the deceased Rs.18,000/- (1500 x 18)
3 Future Prospects @ 40% Rs.600/- (40% of 1500)
4 Annual dependency after Rs.16,800/- [1/3rd of 2100
deduction of 1/3rd (1500+600) x 12)]
5 Multiplier of 9 Rs.1,51,200/- (16,800 x 9)
6 Loss of Consortium Rs.48,000/-
Parental
7 Loss of Estate Rs.18,000/-
8 Funeral Expenses Rs.18,000/-
Total Compensation Rs.2,35,200/-
16. So far as the interest part is concerned, as held by Hon'ble Supreme
Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176
and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5
Supreme Court Cases 107, the amount so calculated shall carry an interest @9%
per annum from the date of filing of the claim petition, till the date of realization.
17. The Insurance Company is directed to deposit the award amount
along with interest with the Tribunal within a period of two months from today.
Thereafter, the Tribunal shall disburse the same to the appellant-claimant. The
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appellant-claimant is directed to furnish his bank account details to the Insurance
Company/Tribunal.
18. Pending applications, if any, also stand disposed off.
April 05, 2024 (SUDEEPTI SHARMA)
tripti JUDGE
Whether speaking/non-speaking : Speaking
Whether reportable : Yes/No
