Punjab-Haryana High Court
Smt. Simar Kaur vs Tarsem Lal Alias Kala And Another on 26 February, 2014
Author: Kuldip Singh
Bench: Kuldip Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision : 26.2.2014
FAO No. 5149 of 2004
Smt. Simar Kaur ........ Appellant
Versus
Tarsem Lal alias Kala and another .......... Respondents
FAO No. 5150 of 2004
Ram Lubhaya Dass alias Pappu ........ Appellant
Versus
Tarsem Lal alias Kala and another .......... Respondents
FAO No. 3489 of 2004
Mohinder Kaur and another ........ Appellants
Versus
Tarsem Lal alias Kala and another .......... Respondents
FAO No. 966 of 2004
Mohinder Singh Gill ........ Appellant
Versus
Mohinder Kaur and others .......... Respondents
FAO No. 1466 of 2004
Mohinder Singh Gill ........ Appellant
Versus
Ram Lubhaya alias Pappu and another .......... Respondents
CORAM: HON'BLE MR. JUSTICE KULDIP SINGH
Present:- Mr. Ishwar Lal, Advocate, for the claimants/appellants.
in FAOs No. 5149, 5150 and 3489 of 2004.
Ms. Rohini Bedi, Advocate, for the appellant
in FAOs No. 966 and 1466 of 2004 and
for respondent in FAOs No. 5149, 5150 and 3489 of 2004.
KULDIP SINGH, J. (ORAL)
By this single order, I will dispose of FAOs No. 5149, 5150, 3489, 966 and 1466 of 2004 as the same are arising out of the same award. FAOs No. 5149, 5150 and 3489 of 2004 are the appeals filed by the claimants/legal heirs for enhancement of compensation, whereas FAOs No. 966 and 1466 of 2004 are filed by Mohinder Singh, owner of the vehicle, challenging the award.
The Motor Accident Claim Tribunal, Jalandhar (in short 'the Tribunal'), vide Award dated 29.10.2003, disposed of connected claim Sharma Sanjiv Kumar 2014.03.12 10:47 I attest to the accuracy and integrity of this document Chandigarh FAO No. 5149 of 2004 and other appeals -2- petitions i.e. MACT Case No. 11 of 1999, MACT Case No. 72 of 1999 and MACT Case No. 32 of 1999. MACT Case No. 11 of 1999 was filed by Mohinder Kaur and Gurnam Chand, parents of deceased Sarabjit Singh, on account of death of their son. MACT Case No. 72 of 1999 was filed by Smt. Simar Kaur claiming compensation for the death of her son Gurbax Ram, whereas MACT No. 32 of 1999 filed by Claimant Ram Lubhaya has claimed compensation on account of injuries received by him.
Facts of the case are that on 1.1.1999, Sarabjit Singh and Gurbax Ram (both since deceased) alongwith Ram Lubhaya alias Pappu (injured) were going from village Khojewal to Jalandhar for their daily work. Deceased Gurbax Ram was sitting on the carrier of the cycle driven by Ram Lubhaya, whereas Sarabjit Singh was driving his own cycle behind Gurbax Ram. When they reached near the gate of village Authola after crossing the culvert of Aandhi Di Khuin and were going on the extreme left side, a bus bearing No. PBV-8289 belonging to respondent No. 2 and driven by respondent No. 1 rashly and negligently without blowing any horn came from Jalandhar side and struck against the cycles. The bus ran over Gurbax Ram, Sarabjit Singh and Ram Lubhaya. Sarabjit Singh was removed to Civil Hospital, Jalandhar, where he died on 4.1.1999 and Gurbax Ram died at the spot. Both the legs of Ram Lubhaya were badly crushed. He was taken to Civil Hospital, Jalandhar. FIR No. 1, dated 1.1.1999 under Sections 279, 337, 338, 304-A IPC was registered.
In the written statement, respondent denied the accident. It was stated that respondent No. 1 was not driving the said bus nor the same was owned by respondent No. 2.
From the pleadings, issues were framed. After recording the evidence of both the parties, the Tribunal held that accident took place due Sharma Sanjiv Kumar 2014.03.12 10:47 I attest to the accuracy and integrity of this document Chandigarh FAO No. 5149 of 2004 and other appeals -3- to rash and negligent driving by respondent No. 1, while holding respondent No. 2 to be owner of the said bus, and awarded Rs. 1,75,000/- in MACT No. 11 of 1999 regarding the death of Sarabjit Singh. Regarding the death of Gurbax Ram, a compensation of Rs. 65,000/- was allowed. Regarding the injuries to Ram Lubhaya, a compensation of Rs. 25,000/- was allowed. 9% per annum interest from the date of filing the claim petitions till realization was also allowed.
Aggrieved by said award, all the claimants have filed different appeals. Mohinder Singh also filed cross appeals, as discussed above. It is to be mentioned here that Mohinder Singh had admittedly filed another FAO No. 1465 of 2004, regarding the award passed in favour of legal heirs of Gurbax Ram (which has since been dismissed as withdrawn).
It also comes out that in FAO No. 966 of 2004, Mohinder Singh has filed Civil Misc. No. 6973-CII of 2005 for permission to lead additional evidence, vide which he wants to produce the copy of the order passed by the Additional Chief Judicial Magistrate regarding giving the bus on Supardari to one Avtar Singh. Opposite counsel has stated that against the order of Supardari, he had moved the Court of Magistrate, which recalled the order. The appeal against the said order has since been dismissed. Counsel for the owner Mohinder Singh is unable to deny the said fact. Moreover, if bus is released on Supardari to somebody, it does not mean that he is owner of the bus, as Supardari can be given to any person. Hence, Civil Misc. No. 6973-CII of 2005 filed in FAO No. 966 of 2004 stands dismissed.
Firstly, I will proceed to determine whether Mohinder Singh is liable to pay the compensation ? Learned counsel for the owner Mohinder Singh has vehemently argued that Mohinder Singh is not proved to be the owner of the bus. Therefore, he cannot be made liable to pay the Sharma Sanjiv Kumar 2014.03.12 10:47 I attest to the accuracy and integrity of this document Chandigarh FAO No. 5149 of 2004 and other appeals -4- compensation. It has been argued that no Registration Certificate of the buswas produced on file. Rather, it comes out that a firm by name M/s Graduate Transporters Bus Service was the owner of the bus and there is nothing on file that shows Mohinder Singh owned the said bus. Claimants/Legal heirs had produced Rajinder Sondhi, Section Officer, District Transport Office, Hoshiarpur as PW4. He has deposed that bus No. PBV-8289 was registered in the name of firm M/s Graduate Transport Bus Service (Regd.) Balachaur. He has also stated about deposit of tax. During cross examination, he stated that he cannot tell who is the owner of the M/s Graduate Bus Service. He has not brought any record regarding registration of vehicle to show that who is the actual owner of the said bus.
On the other hand, learned counsel for the claimants/appellants has argued that during the investigation of FIR No.1 of 1.1.1999, the matter was investigated by the police, which prepared the report under Section 173 Cr.P.C. (Ex.A2). During the investigation, the statement of one Vinod Kumar, SO, District Transport Office, Hoshiarpur, was recorded on 20.7.1999, wherein he has stated that record of bus No. PBV-8289 was checked. The bus is registered in the name of M/s Graduate Bus Service Company, Balachaur. It was registered in the year 1988. The tax upto 13.3.1998 was paid. The company is owned by Mohinder Singh son of Mehanga Singh, resident of Model Town, Jalandhar. Further, copies of the application Ex.A3 to Ex.A5 show that the Manager of the said company had been paying the tax. The proceedings under Section 166 Cr.P.C. are in the nature of inquiry. The strict rule of Civil Procedure Code or Criminal Procedure Code are not applicable. Therefore, the fact coming on record during the investigation by the police can be taken to be the sufficient proof unless rebutted. When Mohinder Singh was examined as RW1, he disclosed Sharma Sanjiv Kumar 2014.03.12 10:47 I attest to the accuracy and integrity of this document Chandigarh FAO No. 5149 of 2004 and other appeals -5- that he is a businessman, though he denied that he is the owner of the said bus. But, during cross examination, he admitted that he is residing in Guru Ravidas Nagar, Jalandhar. Mere denial of Mohinder Singh is not sufficient. He should have summoned other witnesses alongwith partnership deed to prove that he is not the owner of the bus. Therefore, the Tribunal has rightly came to the conclusion that Mohinder Singh is the owner of the M/s Graduate Transport Bus Service, Balachaur.
Now, I proceed to determine the compensation. It has come in evidence of Ram Lubhaya (PW1) that he, Sarabjit Singh and Gurbax Ram were working as Carpenter. They were earning Rs. 4,500/- per month. It was not suggested to him that deceased as well as Ram Lubhaya himself were not the Carpenters. Therefore, it is to be held that deceased Sarabjit Singh and Gurbax Ram were working as Carpenter and earning Rs. 4,500/- per month. Both of them were unmarried. Sarabjit Singh was 23 years of age, whereas Gurbax Ram was also of the same age group. Therefore, income of both the deceased is taken to be Rs. 4,500/- per month. Keeping in view their young age, 50% income is added for future prospects, the total income of both the deceased comes to Rs. 6,750/- per month. Since the deceased were unmarried, 50% is deducted as personal expenses. The dependency of the claimants/legal heirs of Sarabjit Singh and Gurbax Ram comes to Rs. 3,375/- per month each. Keeping in view their young age of 22 and 23 years, the multiplier of 18 is applied. The amount of compensation comes to Rs. 3,375 x 12 x 18 = Rs. 7,29,000/- each. Rs. 25,000/- each on account of loss of love and affection, Rs. 25,000/- each on account of funeral and last rites and another Rs. 5,000/- each as transportation charges are allowed. The total amount of compensation comes to Rs. 7,84,000/- each, payable to the legal heirs of deceased Sarabjit Singh and Gurbax Ram. Sharma Sanjiv Kumar 2014.03.12 10:47 I attest to the accuracy and integrity of this document Chandigarh
FAO No. 5149 of 2004 and other appeals -6- Now, coming to the case of Ram Lubhaya, it comes out that Rs. 25,000/- were allowed to him. It also comes on file that Ram Lubhaya claimed that both his legs were crushed. There is nothing on file to show that he was ever operated upon. Rather, learned counsel for the appellant has argued that due to financial problem, Ram Lubhaya could not get the operation done. Though, it is stated that due to weak legs, Ram Lubhaya is unable to undertake his professional duties as Carpenter. I am of the view that in the absence of any evidence, it cannot be presumed that both his legs were fractured and he has been disabled. No disability certificate was produced on file. However, it has come on file that he remained admitted in Civil Hospital, Jalandhar, from 1.1.1999 to 5.1.1999. Even thereafter, he might have undergone pain, suffering and mental agony. Therefore, in addition to Rs. 25,000/- already awarded to Ram Lubhaya (injured), another sum of Rs. 25,000/- on account of pain, suffering, mental agony, special diet and transportation charges are allowed.
As a result of the foregoing discussion, FAOs No. 5149, 5150 and 3489 of 2004 are allowed, whereas FAOs No. 966 and 1466 of 2004 filed by owner of the bus Mohinder Singh are dismissed. The amount of compensation already granted by the Tribunal in the cases of death of Sarabjit Singh and Gurbax Ram i.e. Rs. 1,75,000/- and Rs. 65,000/- is enhanced to Rs. 7,84,000/- each. The respondents are held liable to pay the compensation jointly and severally. 9% per annum interest on the enhanced compensation shall also be paid to the claimants/legal heirs of deceased Sarabjit Singh and deceased Gurbax Ram in equal share.
(KULDIP SINGH) JUDGE 26.2.2014 sjks Sharma Sanjiv Kumar 2014.03.12 10:47 I attest to the accuracy and integrity of this document Chandigarh