Punjab-Haryana High Court
Smt. Jaswant Kaur Widow Of Sh. Shamsher ... vs The Pepsu Road Transport Corporation on 17 October, 2012
Author: K. Kannan
Bench: K. Kannan
FAO No.2290 of 1995 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.2290 of 1995
Date of Decision.17.10.2012
Smt. Jaswant Kaur widow of Sh. Shamsher Singh and others
.....Appellants
Versus
The Pepsu Road Transport Corporation, Depot Bathinda through its
Divisional Manager and others
....Respondents
Present: Mr. S.C. Chhabra, Advocate
for the appellants.
None for the respondents No.1 and 2.
Mr. Neeraj Khanna, Advocate
for respondent No.3.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.(ORAL)
1. The appeal is against the award dismissing the claim made by the petitioner on the ground that the accident said to have taken place when the 1st respondent's vehicle, Pepsu Road Transport Corporation hit her husband from behind and crushed him under wheels.
2. The contention raised in the claim petition was that the deceased was going on a bicycle to the house and when he was still at a distance of about 100 yards from the house, the bus belonged to the 1st respondent-Corporation coming from the side of Amritsar and proceeding towards Faridkot struck the deceased and he fell down from FAO No.2290 of 1995 -2- the cycle and got crushed. The statement was that the driver was immediately caught at the place by the members of public. The deceased was taken to the Civil Hospital at Zira in a severely mauled condition and he was referred to Guru Gobind Singh Hospital, Faridkot for better treatment. However, the person died on the same day at 3 pm. The deceased was 25 to 26 years of age and he was an expert tailor master and he had also kept buffaloes to sell milk. He earned income of Rs.3500/- per month, which comprised of Rs.2500/- from his tailoring and Rs.1,000/- from sale of milk. The claimants were the widow and three minor children aged 4, 2 and 1.
3. The contention in reply was that the accident had taken place when the deceased, who was a passenger in the bus dropped from the front door in a running bus and he came under the wheels only on account of the negligent conduct in alighting from the bus even when the bus was in motion. This statement in defence was sought to be supported through what was recited in DDR register with the PS Zira, District Ferozepur on 01.01.1992 that was 4 days after the accident. The petitioner relied on her own version which was inconsistent with the version given by her father, who stated that he was also witness to the accident and that the accident took place when he was walking on the road when he and his daughter were going in cycle. With inconsistent versions coming about the manner in which the accident took place, the Tribunal held that the version given by the driver was more credible, for it was a version which was supported through an entry in an official document and therefore, the death ought to have been on account of the negligent conduct of the deceased himself. With these FAO No.2290 of 1995 -3- observations, the petition itself came to be dismissed.
4. Learned counsel appearing on behalf of the appellant seeks to down play the inconsistencies in versions and would point out to the fact that the driver ought to take responsibility for what had happened when he was on the wheel, when he ought to have known that the bus had actually run over the deceased and he should have given a complaint immediately, if his version was true. On the other hand, he had fled from the place and he had lodged a statement four days after the incident to suit his own convenience and to twist facts to his benefit, exculpating himself from the incident causing death of a person. According to the learned counsel, the fact that he gave a complaint four days later without immediately attending to the deceased by taking him to the hospital or giving his version to the police must be taken as factors against the truth of his version. Learned counsel appearing on behalf of the respondent would reiterate on the inconsistencies in version between the petitioner and her father about how the accident had taken place.
5. The basis for claim for compensation under the Motor Vehicles Act still is in the realm of tort except certain provisions relating to strict liability scheme imposed providing for a cap on liability in hit and run cases. A strict liability, which was brought through under Section 163-A by an amendment that was effective from 14.11.1994 by an Act 54 of 1994, was to enable persons who were economically poorer sections whose income was less than Rs.40,000/- to claim compensation on fixed scales even without having to prove rash and negligence on the part of other person. A recent judgment of the Supreme Court in FAO No.2290 of 1995 -4- National Insurance Company Vs. Sunita (2012) 2 SCC 356 has attempted to still point out the difference in the language employed in Chapter X that provides for a fixed liability even without having to prove negligence and to a different language used in Chapter XI, which would make possible for any respondent to show that the deceased himself had contributed to the accident and to that extent even a liability under Section 163A could not be attracted. We are not examining a situation of application of either Section 140 or Section 163A but this is merely to be sensitive to a reality that notwithstanding the legislative intervention providing for strict liability norm, there is still certain manner of judicial reluctance to provide for compensation without assessing negligence in some form before the respondent could be called upon to compensate the victim or his family. If the accident had taken place by the deceased going on bicycle, it is difficult to believe that the petitioner's father who was also said to be an eye-witness to the accident did not know about it and that he must have only stated that the deceased was actually walking on the road. This must be surely seen in the context of what the defendant's evidence itself was. If the Court could not have taken the statement recorded from the driver 4 days after the incident as cogent proof, the driver was surely smitten by guilt to make a report after four days, for it is not as if the driver did not know that the vehicle had run over a person. Even the version, which he has given is only consistent with the case of his immediate knowledge that the vehicle had run over the legs of deceased, who fallen down from the vehicle. If that was surely the event then the law compels to him to do certain duties. The Motor Vehicles Act and the Rules contain provisions FAO No.2290 of 1995 -5- providing for higher responsibility for a driver of a transport vehicle. Section 134 of the Motor Vehicles Act casts a duty on the driver to take reasonable steps to secure medical attention to a person injured in the accident. It requires him to report the circumstances of the accident to the police as soon as possible and in any case within 24 hours. In this case the driver has committed a statutory breach.
6. The driver could not have, therefore, waited for 4 days to register a complaint and what was stated in the complaint cannot be taken as true. The whole approach has to be in some sense inverted in the manner urged by the counsel appearing for the appellants. Nobody comes to road get killed. A pedestrian or a cyclist is entitled to use the vehicle without fearing for their lives. It was impossible in the nature of things that a pedestrian walking on the road could cause death to any other person by his act of walking. The same way a cyclist cannot also do so. It is only a motor cycle driven by a mechanical propulsion with sufficient weight and that traverses at a speed could cause death. The provision under the Motor Vehicles Act providing for a scheme of compensation itself is a recognition of the inherent qualities of risk and danger that motor vehicles could cause to a pedestrian or a cyclist. The degree of culpability to a relatively heavier vehicle is higher in any one situation between a pedestrian and a cyclist or a cyclist and motor cyclist, a motor cyclist and a car, a car and a bus. To illustrate in a case of collision between a cyclist and a motor cyclist or a cyclist and a bus, I would look for a greater degree of care and circumspection from the driver of the car or the bus respectively. If in this case, the deceased was either a cyclist or a pedestrian, either way, I would look for FAO No.2290 of 1995 -6- evidence about the safety considerations that the driver of the particular vehicle applied. Then the issue would only require to be seen in the context of whether the evidence given by the person, who was a driver of the bus, was natural and appropriate. I would accede to the plea made fervently by the counsel for the appellants that the conduct of the driver of the vehicle was not such as to evoke confidence that he was speaking the truth. He had surely something to hide and therefore, he waited for four days to make a complaint and if he did, he was obviously making a statement exculpating himself. The accident had taken place in a broad day light. It ought to have been, therefore, an incident of an immediate knowledge even for the police to act. There has been evidence in this case about the petitioner's father's attempt to go to police to narrate the incident and register a complaint but he got no more assistance than a "wise counsel" from police that he should mind his own son-in-law's safety first before complaining to the police. It is a situation where a person, who was a bread winner, died leaving behind a young widow with three children in the age 4, 3 and 1 and if there was an insensitive approach either by the driver or the police, the respondent ought to be visited with consequences of how the conduct of the respondent has brought about the incident. I will find, therefore, under extraordinary circumstances that the respondent was wholly responsible for the accident and I would take the case of death as resulting from conduct of the driver, which was probably negligent. The preponderance of probability is indeed the hallmark for tracking civil liability, unlike a criminal case, where there could be extracting standard of proof. The Courts do look at all times for at least modicum FAO No.2290 of 1995 -7- of proof regarding negligence and it is never a matter of assumption. Principle of res ipsa loquitur arises in situation where the nature of evidence is such that it is possible to make an inference. I am extending the principle in some way to an extent only to accommodate to what is just in a situation.
7. In this case, the dismissal of the petition was, therefore, wholly untenable and the claimants are required to be compensated. The evidence was that the deceased was a tailor and he was also attending to dairy farming. A person that had three children coming in succession must have had some sense of felicity in his life even for procreation. I would assume that the claimant was not exaggerating her claim when she was making a plea that her husband was earning Rs.3,000/- per month. Considering the fact that the accident took place in the year 1990 resulting in death of a responsible person, who was taking care of family of his wife, children and mother, I would take the average income at Rs.2500/- per month, provide for 1/4th deduction for his personal expenses and take the monthly contribution to the family at Rs.1875/-. I would adopt a multiplier of 17 to take the loss of dependency at Rs.3,82,500/-. Providing for Rs.5,000/- towards loss of consortium to the wife and a similar amount of Rs.5,000/- for loss of love and affection for children and also providing for appropriate sums for loss to estate and funeral expenses, I would round off the claim for Rs.4 lacs as the amount payable to the claimants. The liability shall be on the Corporation and the insurance company. The amount shall be shared among the claimants (wife, children and mother) in the ratio of 2:2:2:2:1.
FAO No.2290 of 1995 -8-
8. Learned counsel appearing for the insurance company would contend that the policy of insurance itself has been cancelled but he is prepared to admit that the inter se dispute between the respondents is still a subject of adjudication before this Court in a civil litigation. I would only hold that the insurance company shall be made liable for what was originally conceded that there had been a policy at the time of the accident. This is a State Corporation and therefore, the insurer ought not have a problem about recoveries if the result of the litigation so turns out that the insurance company could obtain a right of recovery of the amount from the Corporation. The claimants shall have right of enforcement of the award against the Corporation or the insurance company or against both. The right of recovery of the insurance company will depend on the final outcome of the litigation between themselves.
9. The decision of the Tribunal is set aside and the appeal is allowed on the above terms.
(K. KANNAN) JUDGE October 17, 2012 Pankaj*