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MEENA DEVI & ANR versus SIKANDER SINGH & ANR

High Court of Punjab and Haryana, Chandigarh

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MEENA DEVI & Anr v. SIKANDER SINGH & Anr - FAO-1890-1999 [2005] RD-P&H 334 (23 December 2005)

FAO No. 1890 of 1999 [ 1 ]

Meena Devi and another v. Sikander Singh and another Present: Mr. A.K.Kalsy, Advocate

for the appellants.

....

ASHUTOSH MOHUNTA, J. (Oral)

The claimants have filed the present appeal against the judgment of the Motor Accident Claims Tribunal, Ludhiana, dated 16.2.1999 by which a compensation of Rs.3,50,460/- along with 12% interest has been awarded to them.

Briefly the facts of the case are that on 20.10.1996 at about 10.00 P.M. Tam Bahadur was going on his Bicycle towards his house from Gurdev Nagar, Ludhiana, a Truck No.PB-10-H-9689 came from the opposite direction and hit against the bicycle of Tam Bahadur. As a result of the accident Tam Bahadur died. At the time of the accident, Sikandar Singh, respondent No.1, was driving the truck in a rash and negligent manner and the accident was witnessed by Manjit Singh son of Gurdas Singh and Gobind Singh son of Hira Bahadur. A case under Section 279, 304-A IPC was registered vide FIR No.219 dated 21.10.1996 against Sikandar Singh.

A written statement was filed where Sikandar Singh, owner and driver of the offending vehicle, denied that the accident had ever taken place. It was averred that he has falsely been implicated in the criminal case.

FAO No. 1890 of 1999 [ 2 ]

The National Insurance Company Limited-respondent No.2 also filed a separate written statement wherein it was pleaded that the driver of the offending vehicle did not possess a valid driving licence at the time of the accident and, hence, the Insurance Company is not liable to pay any compensation.

The Tribunal held that Tam Bahadur died as a result of the rash and negligent driving of the driver Sikandar Singh who was driving truck No.PB-10-H-9689. As Tam Bahadur who was 38 years of age was working as a Peon in the Punjab State Tubewell Corporation and was getting a gross salary of Rs.3417/- and a carry-home salary of Rs.2920/- per month, therefore, the claimants were awarded a compensation of Rs.3,50,460/- by applying a multiplier of 15.

Counsel for the claimants has firstly argued that Tam Bahadur was getting a gross salary of Rs.3417/- and, therefore, the compensation should have been assessed by taking the gross salary into consideration and not the carry-home salary. It is next argued that as per the 2nd Schedule

under the Motor Vehicles Act,1988 the multiplier for a man who was 38 years of age should have been 16 and not 15. It is lastly argued that the Insurance Company cannot be absolved of its liability to indemnify the insured even where it has been found that the driver of the offending vehicle did not possess a valid driving licence or that the licence was fake.

After hearing the learned counsel, I am of the considered opinion that the gross salary of the deceased Tam Bahadur was Rs.3417/-.

Although some amount was being deducted towards the GPF and various other funds, yet it cannot be said that he was not earning those amounts.

Therefore, to award the compensation by taking the carry-home salary into FAO No. 1890 of 1999 [ 3 ]

consideration would be absolutely wrong.

In view of the above, the salary of Rs.3417/- would have to be taken into consideration for assessing the compensation to the claimants. By deducting 1/3rd

amount for personal expenses of the deceased the dependency of the claimants comes to Rs.2278/- per month. As the deceased was 38 years of age at the time of the accident, therefore, as per the 2nd Schedule of the Motor Vehicles Act,1988 a multiplier of 16 is to be awarded. Thus, the claimants are held entitled to a total compensation of Rs.2278x12x16 = Rs.4,37,376/-.

The next question that arises in the present appeal is Whether the Insurance Company is liable to indemnify the insured even in a case where the driving licence has been found to be fake? It has come in evidence that although Sikander Singh was having a driving licence but his driving licence was not issued by the office of the Regional Passport Office, Nasik. The Tribunal has held that the licence was fake.

In the present case, as Sikander Singh who was the driver of the offending vehicle was also the owner of the vehicle, therefore, he very well knew that his licence is not genuine. In a case where the owner is also the driver of the offending vehicle then protection would not be available to him against the Insurance Company. The Insurance Company would be liable to indemnify the insured only in a case where the owner shows by leading cogent evidence that he did not know that the driver was possessing a fake driving licence. However, in the instant case, as the driver and the owner was the same person, therefore, he would be liable to pay the compensation as the driving licence has been found to be fake.

FAO No. 1890 of 1999 [ 4 ]

In view of the above, it is held that although the Insurance Company would pay the entire compensation to the claimants but they are entitled to recover the same from Sikander Singh who was the driver and owner of the truck.

As a result of the above discussion, the judgment of the Motor Accident Claims Tribunal, Ludhiana, dated 16.2.1999 is modified to the extent that the claimants are held entitled to a compensation of Rs.4,37,376/-. The claimants are also held entitled to Rs.5,000/- as funeral expenses and another sum of Rs.5,000/- for loss of consortium. Thus, the claimants are held entitled to a total compensation of Rs.4,47,376/- along with 9% interest per annum which shall be calculated from the date of filing of the claim petition till realisation. It is further held that the Insurance Company shall pay the entire compensation to the claimants. However, they are given the right to recover the same from Sikander Singh who is the driver and owner of the offending vehicle.

The appeal is disposed of in the above terms.

23.11.2005 ( ASHUTOSH MOHUNTA )

rupi JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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