Punjab-Haryana High Court
Bhajan Kaud And Others vs Tarlochan Singh And Others on 24 February, 2011
Author: K. Kannan
Bench: K. Kannan
FAO No. 2239 of 1998 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
FAO No. 2239 of 1998
Date of decision February 24, 2011
Bhajan Kaud and others
....... Appellants
Versus
Tarlochan Singh and others
........Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. Vikas, Advocate
for the appellant.
Mr. Vishal Chaudhary , Advocate for
Mr. N. K. Khosla, Advocate
for the respondents.
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1. Whether reporters of local papers may be allowed to see the judgment ? No
2. To be referred to the reporters or not? No
3. Whether the judgment should be reported in the digest?No K. Kannan, J (oral).
1. The appeal is against the award of enhancement of claim for compensation for death of a second driver in a truck. The accident had taken place by the driver dashing against the tree and the deceased who was a spare driver died on the spot. The case truly presented res ipsa loquitur situation but the Court found that the accident was inevitable and awarded compensation on no fault basis. In my view, it was erroneous and the Tribunal could not have found that there was no negligence on the part of the driver. What was contended in the written statement was denial of the various allegations and the issue of negligence itself had not been specifically denied in any portion of the statement filed FAO No. 2239 of 1998 2 on behalf of the respondent Nos. 1 and 3. The allegations of negligence had been made in para 24 of the claim petition that was to the effect that the truck had been loaded with sand and was being transported to Chandigarh from Hanumangarh, Rajasthan. He had stated that the driver could not negotiate a turn on the road properly and hit against a Kikkar tree. It was also specifically averred in para 24 that the accident had been due to negligent act of driving of Kuldeep Singh-respondent No.3. For this averment in para 24, the response was that 'para 24 is admitted'. With averments in this fashion going unrefuted, the Tribunal could not have merely allowed the compensation to be given only on 'no fault basis'.
2. The averment in the petition further was that the deceased was a spare driver in the truck. The Insurance Company had not taken a plea of any form of collusion between claimant and the respondent Nos. 1 and 3. The issue of negligence was therefore extraneous in its defence. A general denial by the Insurance Company that the contents in para 7 and 10 were wrong and that further it was denied that the deceased was relaxing in the truck and that he was a second driver of the truck could not have been taken by the Tribunal as sufficient to treat him as a gratuitous passenger. This was wholly an erroneous approach and when his status as a second driver was admitted by the owner in his written statement, it was wrong on the part of the Tribunal to have exonerated the Insurance Company. The accident had been the result of the negligent driving of the driver of the truck and a person who was travelling in the same vehicle and who was competent to travel was duly covered for risk to him. I have seen through the terms of the policy and I find that the insured had also paid premium of `45 for covering the risk to persons connected with the vehicle loading or unloading of motor vehicle (IMT-17). Therefore surely the deceased was covered for risk as a person who travelled in the vehicle in connection with this employment and therefore just FAO No. 2239 of 1998 3 compensation ought to have awarded under Section 166 of the Motor Vehicles Act, 1988.
3. The income of the deceased, being an admitted fact through the statement of the owner, I would tabulate the compensation payable to the claimants as below:
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Age 23 Occupation Claimants Widow,three daughters,two sons and parents S.No. Heads of claim Tribunal` High Court ` 1 Income `2000/- 2 Deduction 1/4th amount 3 Multiplicand 1500x12 4 Multiplier 16 5 Loss of dependency `2,88,000/- Loss of consortium & love `17,500/- and affection to the minor 6 children. 7 Loss to estate `2,500/- 8 Funeral expenses `2,000/- 9 Total `3.12.000/-
The amount in excess of what has been awarded by the Tribunal shall carry interest at the rate of 6% per annum from the date of petition till the date of payment. The additional amount of compensation shall be distributed equally amongst the widow and children only. The liability shall be joint and several amongst the respondents. The Insurance Company is bound to indemnify the owner, which would mean therefore a right of enforcement for the claimant would be available against the insurer. The award is modified and the appeal is allowed to the above extent.
(K. KANNAN) JUDGE February 24, 2011 FAO No. 2239 of 1998 4 archana