Punjab-Haryana High Court
New India Assurance Co Ltd vs Paramjit Kaur & Ors on 23 January, 2024
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No.102
Case No. : XOBJ-173-C-II-2018 in/
& FAO-3801-2017(O&M)
Date of Decision : January 23, 2024
The New India Assurance Company
Limited, Bathinda .... Appellant
vs.
Paramjit Kaur and others .... Respondents
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. R. K. Bashamboo, Advocate
for the appellant - Assurance Co.
Mr. Amandeep Chhabra, Advocate
for respondents no.1 to 4 - claimants/cross-objectors.
Mr. Kashish Garg, Advocate
for respondent no.6 - owner of offending truck.
* * *
GURBIR SINGH, J. :
1. The New India Assurance Company Limited, Bathinda (for short -
Assurance Company) has filed the present appeal and the claimants have
filed the cross-objections against the Award dated 03.03.2017 passed by
learned Motor Accident Claims Tribunal, Bathinda (for brevity - the
Tribunal), whereby petition under Section 166 of the Motor Vehicles Act,
1988 (in short - the Act), filed by respondents no.1 to 4 (hereinafter called -
the claimants), for grant of compensation on account of death of Krishan
Singh @ Resham Singh in the motor vehicular accident, has been allowed
and compensation has been awarded.
2. In brief, the case of the claimants is that on 10.11.2015, Krishan
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Singh @ Resham Singh was returning to his house on his motorcycle and
was driving the motorcycle on correct side of the road at a slow speed. At
about 03:00 PM, when he reached near Gurdwara Baba Ladha in the
jurisdiction of Police Station Phul, a truck bearing No.RJ-14-GB-0098
(hereinafter referred to as - the offending truck), being driven by respondent
no.5 (hereinafter called - the driver), at a high speed, rashly and negligently,
without blowing horn, came from the opposite direction and hit against the
motorcycle of Krishan Singh @ Resham Singh, who sustained multiple
injuries on various parts of his body and his motorcycle was also damaged.
The injured was taken to Civil Hospital but on the way, he succumbed to the
injuries. The accident took place due to rash and negligent driving by the
driver of the offending truck. On the statement of Balvir Singh - father of
the deceased, DDR was recorded by distorting facts. Claimants no.1 and 2
are the parents and claimants no.3 and 4 are sisters of the deceased. The
deceased was only 19 years of age at the time of accident and was working
in a bakery. He was getting salary of Rs.10,000/- per month. The claimants
were dependent upon the deceased.
3. The driver and owner of the offending truck i.e. respondents no.5
and 6 contested the claim petition. They denied the accident. They pleaded
that Krishan Singh @ Resham Singh was coming on his motorcycle rashly
and negligently at a very high speed and by chance, all of a sudden, stray
animal came on the road. Krishan Singh @ Resham Singh lost control over
the motorcycle and struck against the stray animal and in an unbalanced
circumstance, came ahead of the truck and struck against it. The accident
was the result of striking against the stray animal. The matter was reported
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to the concerned Police Station and Panchayat. A Panchayatnama was
entered in the presence of respectables and the parties concerned, wherein it
was admitted that death of Krishan Singh @ Resham Singh was not on
account of accident with the truck in question. The Insurance Company
denied the accident, as alleged. It was pleaded that the DDR was recorded
and compromise was got effected at the instance of complainant Balvir
Singh - father of the deceased in the presence and with the consent of other
respectables. The driver of the offending truck was not holding a valid
driving license. On the basis of pleadings of the parties, following issues
were framed in the petition :-
"1. Whether Krishan Singh alias Resham Singh
died due to accident caused by Buta Singh respondent
on 11.11.2015, while driving truck bearing RC No. RJ-
14GB-0098 ?OPP
2. Whether the claimants are entitled to claim
any compensation. If so, to what extent and from
whom ?OPP
3. Whether the alleged driver of offending truck
was not holding valid driving license to drive the
vehicle at the time of alleged accident ?OPR-3
4. Whether deceased Krishan Singh alleged
driver of motorcycle was minor and was not holding
valid driving license to drive the said motorcycle at the
time of alleged accident ?OPR-3
5. Whether respondent no.2 alleged owner of
offending truck was not holding valid registration
certificate, fitness certificate, permit & insurance of the
said vehicle at the time of alleged accident ?OPR-3
6. Whether the claim petition is bad for non
joinder of necessary parties ?OPR-3
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7. Whether respondent no. 1 & 2 have violated
the terms & conditions of the alleged policy ?OPR-3
8. Relief ."
4. The claimants examined Satnam Singh, Sarpanch as CW-1,
complainant Balvir Singh himself stepped into the witness box as CW-2 and
Bhalwinder Singh as CW-3. The claimants also tendered some documents
in evidence and closed their evidence. On the other hand, Gurdev Singh,
owner of truck (respondent no.6) stepped into witness-box as his own
witness as RW-1 and after tendering some documents, respondents also
closed their evidence.
5. Learned Tribunal held that Krishan Singh @ Resham Singh had
died due to accident caused by driver of offending truck by driving the same
in a rash and negligent manner. It was also held that the offending truck was
validly insured with the appellant Insurance Company, so, first liability to
pay the compensation shall be of the Insurance Company. Compensation of
Rs.10,40,000/- was granted in favour of the claimants and against the
appellant and respondents no.5 and 6 i.e. Insurance Company, driver and
owner of the offending truck respectively.
6. Learned counsel for the appellant - Insurance Company has
argued that no FIR was registered in this case. Balvir Singh - one of the
claimants, who is father of the deceased, alleged in the DDR that the
accident took place by chance and driver was not negligent. Thereafter
Panchayatnama (Ex.R-2) was executed. Rather, DDR was recorded after
recording of Panchayatnama. Satnam Singh (CW-1) also signed the said
Panchayatnama. The driving license of the driver was issued from the State
of Nagaland in violation of Section 9 of the Act. He is a resident of District
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Bathinda. So, he was required to get driving license from Bathinda. The
same was also not got converted into a smart card, as per the State
Government notification dated 01.08.2014. It has further been submitted
that the compensation awarded is on higher side. The interest awarded is @
12% per annum, which is also on higher side and would be payable only if
the amount of Award is not paid within two months.
7. On the other hand, learned counsel for the claimants has argued
that the proceedings before the learned Tribunal are civil in nature. These
are to be decided independently on the basis of evidence led before the
Tribunal. The non-registration of FIR is no ground to hold that driver of the
offending truck was not negligent. The DDR or Panchayatnama, written at
the instance of complainant Balvir Singh or some so-called respectables, has
no force in the eyes of law since the same are result of pressure and undue
influence. The driver of the offending truck did not step into the witness-
box. He was the person, who could explain the circumstances under which
the accident took place. It is further argued that amount of compensation
awarded is quite less and claimants are entitled for enhancement of
compensation so awarded.
8. Learned counsel for respondent no.6 - owner of offending vehicle
has argued that the driver was having valid driving license at the time of
alleged accident. While appointing him as a driver, the same was verified by
owner of the offending truck in order to check that he knew how to drive the
heavy vehicle i.e. truck. He knew the driving perfectly.
9. I have heard the arguments of learned counsel for the parties and
perused the record.
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10. Balvir Singh, who is one of the claimants, stepped into the
witness-box as CW-2. He tendered his affidavit in examination-in-chief.
The relevant para nos.2, 3 and 4 of the said affidavit are as under :-
"2. That on 10.11.2015 Krishan Singh @
Resham Singh (since deceased) along with Resham
Singh and Sukh Singh went to village Himmatpura on
motor cycle for giving sweets etc., to his married
cousin sister Simar Kaur on the occasion of Diwali.
Sukh Singh cousin brother of Krishan Singh @ Resham
Singh stayed in the house of his sister Simar Kaur and
Krishan Singh @ Resham Singh started for his village
Bhai Rupa on his motor cycle.
3. That in the area of PS Phul near Gurdwara
Baba Ladha, truck bearing No. RJ-14GJ-0098 driven
by the respondent No. 1 at a high speed, rashly and
negligently, without blowing horn caused accident
involving above said motor cycle driven by Krishan
Singh @ Resham Singh as a result of which Krishan
Singh @ Resham Singh sustained multiple injuries on
various parts of his body and motor cycle was badly
damaged. After the accident Krishan Singh @ Resham
Singh was rushed to Civil Hospital, Rampura Phul but
on the way to hospital he succumbed to his injuries and
died.
4. That the police of PS Phul, District Bathinda
obtained thumb impression of deponent on blank and
printed papers and got recorded his statement for
registration of FIR against the respondent No. 1, which
was not read over and explained to him by the official
but later on he learnt that police official recorded DDR
No.13 dated 11.11.2015 in favour of respondent No. 1
and 2 by twisting the facts. It is apposite to mention
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here that deponent did not suffer alleged statement
before police regarding the accident. Balvir Singh
approached the concerned police and higher officials
in the matter and also moved application for
registration of case against the respondent No. 1 but to
no effect."
11. In his cross-examination, Balvir Singh stated that he himself had
lodged report with the police. There were about 14-15 persons in the Police
Station on that day. He also named few of them. He further stated that he
did not know whether Panchayatnama dated 11.11.2015 (Mark-A) was
executed in Police Station or not. It was further stated by him that they had
themselves mentioned in the record that stray animal had come in front of
the motorcycle of the deceased. The deceased Krishan Singh @ Resham
Singh lost control over the vehicle and caused accident. He further stated
that the same was not recorded at his instance as the police got his thumb
impressions forcibly. He further stated that he moved an application to SSP
regarding act of ASI Amrik Singh but no action was taken on his
application.
12. The claimants also examined Satnam Singh (CW-1), who fully
corroborated the version of the claimants. Balvir Singh (CW-2), in his
cross-examination, admitted that Panchayatnama (Ex.R-2) was recorded. He
denied that no accident took place due to rash and negligent driving of the
driver of the offending truck. He went on to add that DDR was lodged but
they asked for registration of FIR. Driver of the offending truck did not step
into the witness-box. He was the appropriate person, who could explain the
circumstances, under which the accident took place.
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13. A civil case is decided on the basis of preponderance of
probabilities. The evidence recorded by the learned Tribunal is to be seen
for disposal of the claim petition. The non-lodging of FIR is one of the
circumstances to be seen. In case Sunita and others vs. Rajasthan State
Road Transport Corporation and another reported as (2019) 2 ACJ 801,
it is held by Hon'ble Supreme Court that the opposite party failed to
establish that the deceased was himself negligent. Driver of bus was held to
be rash and negligent in causing the accident. In case National Insurance
Co. Ltd. vs. Chamundeswari and others reported as 2021 ACJ 2558, it
has been held by Hon'ble Supreme Court that if any evidence before the
Tribunal runs contrary to the contents of FIR, then the evidence recorded
before the Tribunal has to be given weightage over FIR. In case Kusum
Lata and others vs. Satbir and others reported as 2011(3) SCC 646,
Hon'ble Supreme Court held that in a case relating to motor accident claims,
the claimants are not required to prove the case as it is required to be done in
a criminal trial. In case Ranjit Kaur vs. Chinder Pal Singh and others
reported as 2006(4) RCR (Civil) (Pb.) 702, it is held that negligence has to
be determined on the basis of evidence on the file and not merely on the
basis of DDR or FIR. In the case in hand, lodger of the DDR proved before
the learned Tribunal that the accident in question was caused by rash and
negligent driving of the offending truck by the driver and the same is also
supported by another witness, in the absence of any evidence in rebuttal, the
lodging of DDR and averments thereof are not liable to be ignored. Learned
Tribunal has rightly held that the accident was caused by the driver of the
offending truck while driving the vehicle in a rash and negligent manner, as
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a result of which Krishan Singh @ Resham Singh died.
14. It is not in dispute that driver Buta Singh was holding a driving
license (Ex.R-1) issued by the Government of Nagaland. The same was got
renewed after 07.11.2016, whereas the accident had taken place on
11.11.2015. In case Iffco Tokio General Insurance Company vs. Neetu
Gupta and others - FAO No.3223 of 2016 (O&M), decided on
17.08.2017, wherein this Court observed that the Insurance Company could
not be absolved from the liability of paying amount of compensation merely
on the ground that the driving license was required to be issued on Smart
Card. It is not the case of the Assurance Company in the case in hand that
the driving license of the driver was fake. So, it is proved that driver of the
offending truck was having valid driving license for driving the vehicle.
15. Learned Tribunal has considered the deceased as a casual labourer
and has taken his earning to be Rs.6,000/-, as per the minimum wages of a
labourer prevalent at that time but as per notification, minimum wages of
labourer was Rs.6,935/- per month. So, the learned Tribunal was required to
take the said amount as income of the deceased before his death. Learned
Tribunal has considered age of parents of the deceased for determining the
compensation whereas it was required to take the age of the deceased for
adopting a multiplier and for assessing the amount of compensation. The
amount of compensation can be assessed in view of the law laid down by
Hon'ble Supreme Court in the case of Sarla Verma and others vs. Delhi
Transport Corporation and another reported as 2009(3) The Punjab
Law Reporter 22 and National Insurance Company Limited vs. Pranay
Sethi and others reported as 2017 SCC Online SC 1270, in the following
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terms :-
No. Head Compensation Awarded
01. Monthly Income Rs.6935/-
02. Annual Income Rs.83,220/- (Rs.6935/-x12)
03. Deduction @ 50% (A) Rs.41,610/-
04. Future Prospects @ 40% (B) Rs.16,644/-
05. Total Income for computation (A+B) Rs.58,254/-
06. Multiplier (age of deceased = 19 yrs.) 18
06. Compensation Rs.10,48,572/- (Rs.58,254/-x18)
07. Loss of Estate Rs.15,000/-
08. Funeral Expenses Rs.15,000/-
09. Parental Consortium Rs.40,000/-
10. Filial Consortium Rs.40,000/-
11. TOTAL Rs.11,58,572/-
16. Thus, the total compensation payable to the claimants would be
Rs.11,58,572/-, with interest @ 9% per annum from the date of filing of
claim petition till actual payment. Liability of appellant Insurance Company
and respondents no.5 and 6 shall be jointly and severally to make the
payment of compensation. Since the offending truck was validly insured
with the Insurance Company, first liability to pay the compensation shall be
of the appellant Insurance Company.
17. In view of the above, XOBJ-173-C-II-2018 and FAO-3801-2017
are being disposed of, with the modifications as detailed above. Pending
applications, if any, shall stand disposed of along with this judgment.
January 23, 2024 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
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