Punjab-Haryana High Court
Chawali Devi And Others vs Chander Bhan And Others on 17 January, 2011
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.966 of 1990 (O&M)
Date of decision:17.01.2011
Chawali Devi and others ....Appellants
versus
Chander Bhan and others ..Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. Rajinder Singh Sihota, Senior Advocate, with
Mr.A.K.Sharma, Advocate, for the appellants.
None for respondents 1, 2 and 4.
Mr. Inderjit Sharma, Advocate, and Mr. Pradeep Bedi,
Advocate, for respondent No.3.
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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 ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
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K.Kannan, J.(Oral)
1. The appeal is against an award of dismissal of a claim for compensation. The accident was said to have taken place when the deceased who was a pillion rider in a scooter was hit on the phati/foot which was protruding out of the scooter by an ongoing truck which was going on the same direction that resulted in falling down when yet another vehicle which was insured with the New India Assurance Company Limited had run over the deceased and crushed him to death. The involvement of the insured's vehicle was not in dispute but the FAO No.966 of 1990 (O&M) -2- contention was that the primary cause for the accident was yet another truck which dashed against him initially and, therefore, no part of negligence could be attributed to the insured's vehicle coming from the opposite direction.
2. Even if the insured's vehicle was not wholly responsible for the accident but another vehicle whose identity has not found or disclosed in the petition was responsible for the initial collision, a driver of an ongoing vehicle, who cannot avoid running over a person that had fallen on the road, must take definitely some responsibility of his own reckless driving. A careful driving and running over a person crushing him to death are a mismatch and I will, therefore, find that the insured's vehicle was definitely responsible to some extent for the accident. If the responsibility of the insured's vehicle is seen even to a small extent, that would still make possible for the claimants to seek for compensation against the insured's vehicle, for, as far as the third party is concerned, the involvement of two vehicles should only be seen in the context of composite negligence and the deceased himself could not be said to have in any way contributed to the accident. If it is a case of composite negligence, then the right of enforcement of the claim for a claimant shall be available against anyone of the tort feasors. This issue has also been considered by this Court in The Oriental Insurance Company Limited Versus Smt. Meena Kumari and others in FAO No.4246 of 2006, decided on 24.08.2010. The dismissal of the petition was, under the circumstances, unjustified and I would hold the insurer and the insured to be answerable for the claim arising out of the accident. FAO No.966 of 1990 (O&M) -3-
3. As regards the quantum of compensation, the evidence was that the deceased was earning between Rs.60 to Rs.80 as seen through evidence of PW1, Rs.70 to Rs.80 as seen from the evidence of a Contractor and Rs.1,800 to Rs.2,000 through the evidence of PW3. The Tribunal took the income to be Rs.1,500/-. The deceased had left behind a widow and 8 children, I would, therefore, assume that he must have earned sufficiently to take care of 8 minor children and I would take the highest of income of what has been given through the witnesses as Rs.2,000/- per month, provide for 1/5th deduction for personal expenses and take the contribution at Rs.1,600/- per month. He was 52 years of age and I would not, however, make any modification of the choice of the multiplier as taken by the Tribunal i.e. 12 and take the loss of dependency at Rs.2,30,400/-. I will add Rs.5,000/- towards loss of consortium and Rs.2,500/- for each one of the children and add another Rs.5,000/- towards loss to estate and funeral expenses. The total compensation will be Rs.2,60,400/- and it shall attract interest @ 7.5% from the date of petition till date of payment. The liability shall be on the insurer and the Insurance Company. The amount shall be distributed equally amongst all the claimants.
4. The appeal is allowed as above.
(K.KANNAN) JUDGE 17.01.2011 sanjeev