Partly allowed

Ashwani Kumar and Anr. v. Mati Ram and Ors.

Punjab & Haryana HC2 Apr 2009FAO/683/1987

Case brief

AI extract

What is this about?

This appeal arises from a motor accident compensation claim where the deceased was killed when hit from behind by a truck. The High Court enhanced the compensation awarded by the Tribunal from Rs. 90,000 to Rs. 1,80,000 based on the claimants' evidence regarding the deceased's earning capacity, dismissing the owner's appeal.

What did the court decide?

Compensation enhanced to Rs. 1,80,000; interest at 12% per annum (claimed) and 7.5% per annum (enhanced part) awarded; appeal by owner dismissed.

Ashwani Kumar and Anr. Vs Mati Ram… — Pension and Retirement Benefits | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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F.A.O. No.683 of 1987

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Date of Decision : April 02, 2009

Ashwani Kumar

.....Appellant

Versus

Mati Ram and others

.....Respondents

CORAM : HON'BLE MR JUSTICE T.P.S. MANN

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Present : Mr. Deepak Suri, Advocate for the appellant.

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Mr. Sanjeev Walia, Advocate for respondents No.1 and 2.

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None for respondent No.3.

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Mr. Neeraj Khanna, Advocate for respondent No.4.

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T.P.S. MANN, J.

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Ashok Kumar, son of Mati Ram and Smt. Chaman Devirespondents, died on the afternoon of 5.8.1984 on account of receiving injuries in a motor vehicular accident which occurred in the chowk of sectors 20,30,32 and 33, Chandigarh. Aforementioned Mati Ram and Smt. Chaman Devi filed the petition under Section 110-A of the Motor Vehicles Act against Ashwani Kumar, Partap Singh and New India

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Assurance Company Limited for being granted an amount of Rs.2.5 lac as compensation. It was averred by them that their son Ashok Kumar was aged about 18 years and earning Rs.1,200/- per month by operating his tempo No.CHW-3434. On 5.8.1984, his said tempo was being driven by Charan Singh at a very normal speed and proceeding from Mohali towards Grain Market, Sector 26, Chandigarh, whereas Ashok Kumar deceased was sitting on the left side of the driver in the cabin of that tempo. When the tempo had covered a distance of about 150 yards towards Ambala on the road intervening sectors 30 and 32, truck bearing No.CHW-2249 came from behind while being driven rashly and negligently by its driver Partap Singh. The truck first hit a cyclist, who was going from the side of sector 20 towards Tribune Chowk and then hit the said tempo from behind. As a result of the impact of the accident, the front left door of the tempo opened and Ashok Kumar deceased sitting on the side of its driver in the cabin fell down. The tempo went forward with great force and its driver saved himself by controlling and bringing it on the road after exercising great care and caution. Ashok Kumar was crushed under the truck which then went ahead to the extreme left on the kacha side-path and struck against trees. It stopped at a distance of about 70 to 80 yards from the place of accident. Ashok Kumar was removed with serious injuries to the PGI where he was declared dead by the doctor. Both the claimants sought compensation from Partap Singh-driver and Ashwani Kumar-owner of

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the offending truck as well as New India Assurance Company Limited with which it stood insured.

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In his written reply, Ashwani Kumar, owner of the offending truck, denied that the accident in question was caused by rash and negligent driving of his truck by his driver Partap Singh. He, however, admitted his ownership of the said truck and it being insured with the Insurance Company. The Insurance Company also filed its reply and opposed the claim petition. Partap Singh, driver of the truck, did not appear despite due service and he was proceeded against ex parte.

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On the basis of the pleadings of the parties, learned Tribunal had framed the following issues :

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Whether on 5.8.1984 at about 2.00 P.M. the driver-respondent No.3 caused the accident in question by driving rashly and negligently truck No.CHW-2249 near the crossing of Sectors 20, 30, 32, 33, Chandigarh, leading to his death ? OPP.

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If issue No.1 is proved, to what amount of compensation are the claimants entitled and from whom of the respondents ? OPP.

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Relief.

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After hearing learned counsel for the parties and going through the record, learned Tribunal held that the accident in question

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F.A.O. No.683 of 1987 -4-

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was caused by rash and negligent driving of the offending truck by its driver Partap Singh. As a result of receiving injuries in the accident, Ashok Kumar, son of the claimants, died. The claimants were awarded an amount of Rs.90,000/- as compensation to be paid by the driver, the owner and the insurer of the offending truck jointly and severally. Besides, costs of the claim petition and interest @ 12% per annum from the date of filing of the claim petition till payment, were also awarded.

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Aggrieved of the award, Ashwani Kumar, owner of the offending truck, filed the present appeal with a prayer of setting aside the same whereas claimants Mati Ram and Smt. Chaman Devi filed F.A.O. No.756 of 1987 seeking enhancement of the amount of compensation. Both the appeals, having arisen out of the same impugned award, they are being disposed of together.

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I have heard learned counsel for the parties, perused the impugned award and minutely scanned the evidence available on the record.

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It may not be out of place to mention here that while filing the present appeal, Ashwani Kumar had joined New India Assurance Company Limited as appellant No.2. However, later on, keeping in view the law laid down in the case of United India Insurance Company Limited and another v. P.M. Zeenath and others, 2005 ACJ 1774, C.M. No.24675-CII of 2006 was filed on behalf of New India Assurance

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Company Limited-appellant No.2 for being transposed as one of the respondents. This application was allowed on 7.5.2007 and the New India Assurance Company Limited was transposed as respondent No.4.

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It has appeared in the testimony of PW5 Charan Singh that on 5.8.1984 he was working as driver of matador No.CHW-3434. He was driving it from Chandigarh to Dera Bassi. At that time, Ashok Kumar deceased was sitting on the left side in the cabin of the matador. When they had covered a distance of about 150 paces from the chowk of sectors 20, 30, 32 and 33 towards Ambala, truck No.CHW-2249 came from behind. At that time the witness himself was driving the matador at a speed of about 40 kilometers per hour and on the correct side of the road. The truck hit against the matador from behind. Because of the impact of the accident, the left side door of the matador opened and Ashok Kumar fell down. The witness stopped the matador/tempo at a distance of about 10 paces from the place of accident. The driver of the offending truck swerved it towards the left and took it towards kacha portion. In the process, the truck struck against a shisham tree and it came to halt at a distance of 20 to 25 paces from the place of accident. It was Partap Singh who was driving the truck. Ashok Kumar had received injury on his head. The witness also saw a boy aged about 12 years lying injured besides Ashok Kumar. He removed both the injured to the P.G.I. where Ashok Kumar succumbed to his injuries. The witness claimed that the driver of the truck had not blown the horn. The

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witness also noticed Jagdish Chand present nearby.

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Jagdish Chand was examined by the claimants as PW6. He corroborated the version as given by PW5 Charan Singh. He deposed that on 5.8.1984 at about 1.30/2.00 P.M. he was returning from sector 20 to his village Hallo Majra on a cycle. When he reached the crossing of sectors 20, 30, 32 and 33, a truck came from behind. One boy was going on a cycle ahead of this witness by about 10/12 paces. The truck was at a very high speed and after passing by his side, it hit against the cycle as a result whereof, the boy fell down and the truck passed over his legs. The truck then hit the matador going ahead. Right front side of the truck had hit left side of the matador. A person fell from the matador as a result of the impact and received injuries on his head. The truck bearing registration No.CHW-2249 was being driven by Partap Singh. At the time of the accident the tempo was going on its correct side at a speed of 40/42 kilometers per hour. After causing the accident, the truck went towards left side and struck against a tree. It got stuck in a pit which was about 20 to 25 paces from the place of accident. According to the witness it was Charan Singh who was driving the tempo and he passed on information about his name and address to said Charan Singh.

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PW2 HC Balkar Singh proved copy of FIR No.381 dated 5.8.1984 registered at Police Station East, Chandigarh for offences punishable under Sections 279/337/304-A IPC. The same is available

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on the record as Ex.P19. A perusal of the same would reveal that the manner of accident mentioned therein was same and similar as it appeared in the statements of PW5 Charan Singh and PW6 Jagdish Chand. From photos Exs.P21 to P34, P37 and P38, which have been brought on record by PW1 HC Mai Chand, the manner of accident as described by PW5 Charan Singh and PW6 Jagdish Chand stands corroborated. From the above evidence it stands amply proved that the offending truck was being driven in a rash and negligent manner by its driver who dashed his truck against the cycle which was being plied by a young boy and thereafter hit the matador from behind as a result of which Ashok Kumar who was sitting in its cabin fell down and received a number of injuries on his person to which he succumbed later on. According to PW3 Dr. Inderjit Dewan, the injuries as found by him on the dead body of Ashok Kumar could be received in motor vehicular accident. Thus, learned Tribunal rightly held that Ashok Kumar died as a result of injuries received by him in the accident which was caused by Partap Singh while driving the truck bearing registration No. CHW2249 in a rash and negligent manner.

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It has come in the statement of PW4 Mati Ram that deceased Ashok Kumar was his only son. The deceased used to take supply of meat to the military authorities, Central Reserve Police Force and different shop-keepers of Chandigarh on tempo No.CHW-3434 owned by him. The tempo used to be driven by Charan Singh. In the

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process Ashok Kumar used to earn sufficient income out of which he had been giving Rs.1,500/- to the witness every month for running the household. As per the testimony of PW7 Sohan Lal, he had worked at the shop of Mati Ram claimant for 10/12 years. Said Mati Ram owned a matador which was being used by Ashok Kumar, since deceased to supply meat to different meat sellers of Chandigarh. Mati Ram claimant used to sit at the shop. Ashok Kumar had been earning an amount of Rs.1,800/- to Rs.2,000/- per month by supplying meat. After his death, business of Mati Ram slumped and he seldom came to the shop and even the matador was sold by him. Despite the above evidence, learned Tribunal held that the claimants' loss was only Rs.500/- per month as they were deprived of the services of their son. In any eventuality, the deceased was earning Rs.1,500/- per month and after spending 1/3^rd on him could be, contributing remaining Rs.1,000/- to his family. Therefore, the dependency has to be calculated as Rs.1,000/- per month or Rs.12,000/- per annum.

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The deceased was young lad of about 19 years of age as noticed in the post mortem report. Claimant Mati Ram described himself to be 36 years of age while his wife Smt. Chaman Devi about 34/35 years. The deceased was the only son of the claimants, although the claimants had two daughters as well. While appearing as PW4, claimant Mati Ram stated that his wife Chaman Devi was not in a position to deliver any further child as already three children were born after

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performing operations. Therefore, learned Tribunal was justified in applying the multiplier of 15 so as to assess the compensation payable to the claimants. Therefore, applying the multiplier of 15 to the annual dependency of Rs.12,000/-, claimants are held entitled to an amount of Rs.1,80,000/- as compensation to be payable by the driver, the owner and the insurer of the offending truck No. CHW-2249 jointly and severally.

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Resultantly, F.A.O. No.756 of 1987 filed by the claimants is accepted by enhancing the amount of compensation from Rs.90,000/to Rs.1,80,000/- to be paid by the respondents therein. The respondents shall also pay costs of the claim petition and interest at the rate of 12% per annum from the date of filing of the claim petition till the payment of the compensation as earlier granted by the Tribunal. Apart from that, they shall also pay interest on the enhanced amount of compensation at the rate of 7.5% per annum from the filing of claim petition till realization. The liability to pay the various amounts shall be that of the respondents jointly and severally. As a natural corollary of acceptance of F.A.O. No.756 of 1987 to the extent indicated above, F.A.O. No.683 of 1987 filed by Ashwani Kumar, owner of the offending vehicle, is dismissed.

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( T.P.S. MANN ) April 02, 2009 JUDGE satish

Ashwani Kumar and Anr. v. Mati Ram and Ors.

Case brief

What is this about?

What did the court decide?

Ashwani Kumar and Anr. v. Mati Ram and Ors.

Case brief

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