Punjab-Haryana High Court
The Secretary Ministry Of ... vs Amar Kaur And Ors. on 6 January, 1988
Equivalent citations: 2(1988)ACC346
JUDGMENT S.D. Bajaj, J.
1. Mansa Ram deceased was serving as Palled ar with Barara Marketing-cum-Processing Co-operative Society Ltd., on its truck No. HRA 9998. The deceased was being paid by the Society per bag rate for the work of loading and unloading of its truck aforesaid. On 2nd June, 1981 around 9-30 p no. while the truck was returning to Barara after unloading of fertilizer bags by the deceased at the Sales Depot Saha, deceased Mansa Ram was sitting on the toolbox of the truck aforesaid. There was a telephone wire hanging loose on the way. Mansa Ram struck against it while sitting on the toolbox of the truck and through the impact fell down in the body of the truck and died instantaneously.
2. The deceased is survived by his widow Smt. Amar Kaur, two daughters named Jaswant Kaur and Raj Kaur and three sons named Nirmal Singh, Swam Singh and Kulbir Singh. All the three sons and two daughters of the deceased being minors. Smt. Amar Kaur widow of the deceased filed Motor Accident Claims Petition No. 14 on 19th September, 1981 for herself and as natural guardian of her minor children for the recovery of Rs. 40,000/- (rupees forty thousand only) as compensation for the death of the deceased. Deceased was stated therein to be 38 years of age at the time of his death and was given out to be earning Rs. 1,600/- per mensum as Palledar of the Co-operative Society owning the truck. The truck owned by respondent No. 1 Barara Marketing-cum-Processing Co-operative Society Ltd., being insured with the National Insurance Company Ltd., and the telephone wire hanging loose on the way being the property of the Union of India, the Society, the Insurance Company and the Union of India were impleaded as respondents in the claim petition.
3. Vide award dated 7th February, 1983 learned Motor Accident Claims Tribunal, Ambala, awarded Rs. 38,400/- (rupees thirty eight thousand and four hundred only) as compensation to the claimants aforesaid. Out of it half viz. Rs. 19,200/- (rupees nineteen thousand and two hundred only) was made payable by the Union of India and the other half jointly and severally by the Society and the Insurance Company. The amount of compensation was worked out by the learned Tribunal on the basis of Rs. 300/- per mensum being regarded as the contribution of the deceased to the family exchequer and by multiplying his annual family contribution by 16 multiplier. The deceased was found to be spending Rs. 100/- per mensum on himself out of his meagre income of Rs. 400/- per mensum.
4. Feeling aggrieved from the award of the learned Motor Accident Claims Tribunal dated 7th February, 1983, all the three respondents viz (i) the Union of India; (ii) Co-operative society owning the truck; and (iii) the Insurance Company have come up in appeal to this Court. F.A.O. No. 390 of 1983 is filed by the Union of India and F.A.O. No. 392 of 1983 is jointly filed by the Co-operative Society and the Insurance Company. Both the appeals being against the same award, have been heard and are being disposed of together.
5. Learned Counsel for the National Insurance Company Ltd., urged that the claim filed by the legal heirs of the deceased being Rs. 40,000/- only, learned Tribunal could not award a sum of Rs. 57,600/- as compensation and work out the proportionate one third joint and several liability of the insured society and the Insurance Company at Rs 19,200/-. According to him, this liability should have been 1/3rd of Rs. 40,000/- only. The argument is wholly berefit of any merit. The amount awarded is only Rs. 38,400/- as against the claimed amount of Rs. 40,000/ which is obviously in excess of it. The claimants are poorest of the poor and had restricted their claim to Rs. 40,000/- because in the State of Haryana only this amount of compensation could then be claimed on a court fee of Rs. 10/- (rupees ten only). For making a claim beyond this amount they had to pay ad-valoram court fee which they could ill affored. In a welfare state how shall a widow with five minor dependent children be able to carry on and maintain them herself with this meagre amount. of compensation is beyond our comprehension. All the same it does not lie in the mouth of the National Insurance Company Ltd., to urge that even this much amount of compensation should not have been awarded by the learned Tribunal. Meagre social security award, legitimately made, being less than the amount claimed is in every way legal and is consequently upheld.
6. Even otherwise a reference to the written statement filed by National Insurance Company in this case reveals that the factum of alleged accident was not disputed by it. Once it has not disputed the accident, the insurance Company is legally not entitled to challenge the award on merits. In New India Insurance Company Ltd. v. Angoori Devi and Ors. 1987 Accidents Claims Journal 942 it was observed by Hon'ble Mr. Justice S.B. Wad of the Delhi High Court, "The factum of the accident is not disputed by the appellant and indeed as an Insurance Company they cannot challenge the award on merits."
7. On behalf of the Union of India three fold submissions have been made. Firstly it has been urged that the existence of a telephone wire banging loose on the way which may have struck the deceased and resulted in his forced fall through the impact from the tool-box into the body of the truck and instantaneous death thereby has not been proved. Secondly, it was urged that there was no evidence before the learned Tribunal regarding the income of the deceased at the time of his death which could form the basis for working out the awarded amount of compensation and thirdly the Union of India could not be foisted with the liability for payment of proportionate one third amount of compensation in the absence of expert medical opinion that death of Mansa Ram was the outcome of impact with loosely hanging telephone wire on the public highway. None of the three arguments, made on behalf of the Union of India, as would appear from the ad-cariatim discussion hereinafter, has any merit in it.
8. (i) Existence of telephone wire hanging loose by the side of the road which struck against the deceased and resulted in his forced fall into the body of the truck from the top of the tool-box and his instantaneous death thereby has been asserted by Girdhari Lal driver PW 3 who states that deceased Mansa Ram was sitting on the tool-box of the truck and a telephone wire hanging loose had hit him as a result of which Mansa Ram lost balance and fell inside the body of the truck, that the witness stopped his truck on being attracted by the alarm, took Mansa Ram to the hospital wherein the deceased breathed his last on the following day.
9. Shri Ghasita Singh, one of the Directors of the Co-operative Society arrayed as respondent No. 1, also states that he was visiting Barara regularly observed in the course of his visit that on the way telephone wires were very low and also loose. In reply to a question put to him by the learned Government Pleader the witness stated that two of the wires which were loose were about 6 to 7 inches lower than the other wires. The wires were about 8-1/2 feet from the road level in height. Assertions made by the two witnesses aforesaid in this regard are duly mentioned in Daily Diary Report No. 32 recorded in Police Station, Mullana, copy Exhibit P. 1.
10. Interested denial of the existence of any loosely hanging wire on the way which may have resulted in alleged impact, fall into the body of the truck and resultant death of Mansa Ram deceased by Telephone Inspector Sushil Kumar RW 1 and Line-man Babu Ram RW 2 does not detract in any way from the assertions made by Ohasita Singh PW 2, Girdhari Lal PW 3 and the recitals in D.D.R. Exhibit P. 1. Both these witnesses would have themselves been taken to task by the Union of India respondent No. 2 if they had not come forth with the assertions aforesaid because they are collectively responsible for maintaining and keeping the telephone line/wires intact and in order. Self-exculpatory assertions made by the two witnesses aforesaid have thus to be ignored.
11. It is thus fully proved from the depositions of the two witnesses aforesaid and the version given out by Girdhari Lal PW 3 in D.D.R. No. 32 (copy Exhibit P. 1) immediately after the occurrence that Mansa Ram had struck against the loose telephone wire hanging on the way and had fallen down from the tool-box into the body of the truck aforesaid and that it was this forcible fall through impact with loose telephone wire which resulted in instantaneous death of the deceased. In the post-mortem report also the cause of death is given out to be shock and haemorrhage due to brain injury received on forehead, presumably at the time of impact with loose hanging telephone wire.
12. (ii) Smt. Amar Kaur PW 1, widow of the deceased, no doubt asserted before the learned trial court that deceased Mansa Ram was earning Rs. 50/- per day while employed as Palledar with the Society arrayed as respondent No. 1 in the claim petition. Ghasita Singh PW 2 stood by her while asserting that the income of the deceased touched even still higher figure during the season and stated that in off season the deceased earned much less and was at intervals unemployed. It was in view of these assertions that the learned Tribunal assessed the earning of the deceased at Rs. 400/- per mensum, nearly Rs. 50/- per mensum more than the minimum wage rate for unskilled labourers at Rs. 350/- per mensum. There was thus cogent evidence before the learned trial court in this regard. Regarding assessment of age of the deceased at 38 years at the time of his death also learned trial court has given sound reasoning for relying upon the unrebutted deposition of the widow of the deceased to reach this conclusion. The compensation due to legal heirs of the deceased has, therefore, been correctly worked out by the learned Tribunal by multiplying his annual contribution of Rs. 3600/-to the family exchequer by 16.
13. (iii) Medical evidence of death of the deceased is available on record in post-mortem report No 2-A/2/81 dated 5th June, 1981 collected by H.C. Nanak Singh No. 754 from the Medical Officer of Civil Hospital, Ambala. As per entries in column No. 4 the impact resulted in a contusion of the size of 3 cms x 2 cms on forehead of the deceased and in the opinion of the doctor conducting the post-mortem, death of the deceased was due to shock and haemorrhage resulting from the brain injury. Oral assertions made by driver Girdhari Lal PW 2 support the expert medical opinion out right. Failure of the learned Counsel for the claimants to tender the post-mortem report into the evidence after its admission by the Government pleader on 26th November, 1982 does not in any way take away from its contents. Death of the deceased through impact with loose hanging telephone wire and resultant fall into the body of the truck is thus proved.
In result both F.A.O. Nos. 390 and 392 of 1983 fail and are dismissed with costs.