Allowed

Kamaljeet Kaur and Another v. P.C. Bichhal and Another

Punjab & Haryana HC12 Nov 2014FAO/4649/2012

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an Award dismissing a motor accident claim. The Court reversed the Trial Court's finding that the accident was not due to rash and negligent driving. A total compensation of Rs. 7,76,000 was awarded jointly to claimants and insurer.

What did the court decide?

Impugned Award set aside; Compensation of Rs. 7,76,000 awarded to claimants along with interest; Owner and insurer held jointly and severally liable.

Kamaljeet Kaur and Another Vs P.C. Bichhal… — Motor Accident Claims | Punjab & Haryana HC (2014)

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Date of decision: 12^th November, 2014

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Kamaljeet Kaur and another

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� Appellants

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Versus

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P.C. Bichhal and another

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� Respondents

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Whether Reporters of Local Newspapers may be allowed to see the judgment?

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Whether to be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Mr. R.S. Mamli, Advocate for the appellants.

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None for respondent No.1.

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Mr. R.S. Madan, Advocate – Standing Counsel for respondent No.2.

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This is an appeal filed against the Award dated 04.11.2011

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of the learned Motor Accident Claims Tribunal, Ambala dismissing claim petition of the claimant/appellants.

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Heard Mr. R.S. Mamli, Advocate for the claimant/

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appellants, Mr. R.S. Madan, Advocate – Standing Counsel representing the insurer and on perusal of the records.

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RATTAN PAL SINGH 2015.02.24 12:39 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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The first and the foremost challenge is to the findings of the learned Tribunal, which though in the impugned findings has taken note of the testimony of the eye4witness Kanwalpreet Singh PW2 but merely on the premise that it has not been corroborated has outrightly rejected it and held that the factum of accident to be an outcome of rash and negligent driving is not established.

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As has been contended the testimony of Kanwalpreet Singh PW2 by way of Ex.P2 establishes that he has witnessed the accident and has rushed the injured in his car to the hospital and has categorically stated that the accident was due to rash and negligent driving of the offending car make Santro bearing registration No.HR4 07J49135 when it hit the motorcycle of the deceased bearing No.HR4 05H41768 in the area of Jhansa Road, Thanesar around 8.45 p.m. and as a consequence of which Kulwinder Singh received injuries and died. On behalf of the respondent4insurer, nothing adverse could be pointed out that has come in the cross4examination of this witness to doubt his credentials and rather as has come in his cross4examination the driver of offending car stopped for a while and then fled away with the vehicle and has categorically stated that Mohinder Pal was on the pillion of the motorcycle. The witness was known to the deceased who was working as a driver of his friend. It is well settled law that it is the evidence led before the Tribunal which is to be gone into and in this case neither the driver of the offending car who is contesting the litigation has bothered to step into the witness box to refute the case of

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RATTAN PAL SINGH 2015.02.24 12:39 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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the other side and thus an adverse presumption needs to be drawn in terms of Section 114 of the Indian Evidence Act, 1872. Since the Motor Vehicles Act, 1988 is a welfare Statute the same needs to be liberally construed and the proceedings before the Tribunal being of summary nature, strict principles of the Evidence Act and law are not to be applied.

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Though RW2 Inspector Gurvinder Singh has been examined by the respondent to highlight the fact that earlier an application was moved by the wife that her husband was murdered, does not carry the day for the respondent and rather in his examination in chief he accepts that supplementary statement of Mohinder Pal was recorded and it was revealed that Kulwinder Singh had died in an accident though claims that it was an accident with a stray horse which is in sharp contradiction to contents of PMR which shows to be a RSA (road side accident) with a car but in his cross4 examination accepts that FIR pertaining to this accident was registered which was subsequently cancelled, are matters which have a bearing on the fact that there is a consistent effort to cover up the accident. Thus, in the light of evidence which has come on the record and having regard to the fact that it is the quality of evidence which matters and not the quantity and in the light of these circumstances evidently establishes that it was due to rash and negligent driving of the offending car by its driver respondent P.C. Bichhal has led to this

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RATTAN PAL SINGH 2015.02.24 12:39 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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accident resulting in the death of the deceased. Thus, the findings of learned Tribunal on issue No.1 need to be reversed.

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It is proven on the records by the claimants upon whom the onus lay by examining claimant widow Kamaljeet Kaur as PW1 as to the inter4se relationship of the deceased and the claimants. It is case of the claimants that the deceased at the time of his death was aged around 30 years which is corroborated by the post4mortem report and hospital record Mark P2 and P3 and even the age of the widow is around 31 years, establishes beyond any doubt that the deceased was aged between 30 to 35 years at the time of death. Stand of the claimants and particularly that of the widow Kamaljeet Kaur PW1 establishes that the deceased was a driver whose driving license has been placed on the record by way of Mark P1 and the inter4se relationship is established by the copy of ration card Ex.PM. Though the widow claims that her husband as a truck driver was earning �5,000 per month however, in the light of the fact that there is no documentary proof of the same and keeping in view normal rates of salaries for such avocation at the time of accident, it can be safely deduced that the deceased under all eventuality must be earning �3,500 per month as has been arrived at by the Tribunal. Assuming that out of this amount, the deceased must be contributing �3,000 per month to the running of the household which is a reasonable amount keeping in view number of the dependants, and therefore, annual dependency comes to �36,000. In view of the relative ages of the

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RATTAN PAL SINGH 2015.02.24 12:39 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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claimants and that of the deceased, applying multiplier of 16 the compensation amount comes to �5,76,000. The deduction of 1/2 made by the Tribunal certainly is on the wrong side. Besides this, the family has lost its bread earner, a source of love and protection for which they need to be adequately compensated. Besides, the family must have spent money on the last rites and ceremonies of the deceased. The widow has categorically stated in her statement Ex.P1 that she spent money on rushing her husband to PGIMER, Chandigarh and that she spent �1.00 lac for the treatment as he suffered injuries on 21.06.2009 and died on 22.06.2009, which is also brought about by the own testimony of the respondents through RW1 Pardeep Singh by way of Ex.R1. Thus, the family needs to be compensated for the medical expenses though it has not been documentarily established but the medical record certainly bears out some sort of treatment having been given to the deceased and under all these conventional heads a sum of �2.00 lac is awarded. Therefore, the total amount of compensation comes to �7,76,000 (rupees seven lacs seventy six thousand).

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Besides this, the claimants are also entitled to interest @7.5% p.a. from the date of filing of the appeal till realization and @9% p.a. as awarded by the Tribunal from the date of filing of the claim petition till passing of the Award. Interim compensation paid, if any, shall be adjusted.

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RATTAN PAL SINGH 2015.02.24 12:39 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

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Though it is hotly sought to be projected on behalf of the respondent4insurer that the driver did not have any legal, effective and valid driving license but since the onus was upon the respondent4 insurer to prove it so who had not led any evidence in this regard therefore the said issue is decided against the insurer.

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Thus, in the light of these discussions, the impugned Award is set aside holding that the death of Kulwinder Singh was on account of rash and negligent driving of car make Santro bearing registration No.HR407J49135 by its driver respondent P.C. Bichhal and thus, there being a legal and valid subsisting contract by way of insurance policy Mark R3 and the own stand of the insurer, the Court holds that respondents, owner4cum4driver and the insurer, are jointly and severally liable to pay this amount of compensation.

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Both the claimants shall be entitled to this compensation in equal shares. In case any of the claimants is a minor as on date, his/her share shall be deposited by way of FDR till he/she attains the age of majority.

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Thus, in the light of these discussions the impugned Award is set aside by way of acceptance of the instant appeal.

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RATTAN PAL SINGH 2015.02.24 12:39 I attest to the accuracy and authenticity of this document Punjab & Haryana High Court

Kamaljeet Kaur and Another v. P.C. Bichhal and Another

Case brief

What is this about?

What did the court decide?

Kamaljeet Kaur and Another v. P.C. Bichhal and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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