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M/S THE NEW INDIA ASSURANCE CO. LTD. versus MEENA WIDOW OF PARMAL SINGH & ORS

High Court of Punjab and Haryana, Chandigarh

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M/S The New India Assurance Co. Ltd. v. Meena widow of Parmal Singh & Ors - FAO-312-2005 [2006] RD-P&H 2679 (27 April 2006)

IN THE HIGH COUART OF PUNJAB AND HARYANA, CHANDIGARH FAO No. 312 of 2005

DATE OF DECISION:18.4.2006

M/S The New India Assurance Co. Ltd. ........ Appellant VERSUS

Meena widow of Parmal Singh & others ........ RESPONDENTS CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA
PRESENT: Mr.R.K.Bashamboo, Advocate, for the appellant.

Mr. Mrigank Sharma, Advocate, for the respondents.

VINOD K.SHARMA,J:

This judgment will dispose of two FAO Nos.311 and 312 of 2005 arising out of the award passed by the Motor Accident Claims Tribunal, Chandigarh ( for short the 'Tribunal') dated 29-5-2004 in two claim petitions, one filed by Meena and others to claim compensation on account of death of Shri Parmal Singh and another filed by her for compensation on account of injuries sustained by her. For facility of reference, facts have been taken from FAO No. 312 of 2005.

The appellant, Insurance company by way of present appeals has challenged the award passed by Shri Balbir Singh, Motor Accident Claims Tribunal, Chandigarh, dated 29-5-2004 vide which respondent FAO No.312 of 2005

Nos.1 to 3 were granted a compensation to the tune of Rs . 16 lacs with future interest @ 9% P.A. on account of death of Shri Parmal Singh, husband of respondent No.1 and father of respondent Nos.2 and 3. The Tribunal has further awarded a sum of Rs. 35,000/- to Smt. Meena on account of injuries suffered by her in the accident. The brief facts giving rise to this appeal are that on 9-7-2000 deceased Parmal Singh alongwith his wife Smt. Meena (claimant), Nirmal Singh, brother of the deceased alongwith Des Raj and Usha Kumari were travelling in a Maruti Car bearing registration No. HR-07-1500 which was driven by the deceased Shri Parmal Singh. At about 7 AM when they reached near Sirhind bypass, Rajpura, a tanker truck No. UP-6801 which was going ahead of the Maruti Car, was being driven rashly and negligently by Shri Sunil Kumar, who applied sudden brakes and in spite of best efforts by the deceased to stop the vehicle, the same hit the tanker truck from behind. On account of the accident, Shri Parmal Singh sustained multiple and grievous injuries on his body whereas Smt. Meena suffered injuries on her head, face, teeth, jaw and other parts of the body. The teeth of Smt. Meena were broken and jaw was dislocated. The other persons travelling in the said car also sustained injuries. Shri Parmal Singh died on account of injuries suffered by him in the accident, whereas Smt. Meena got treatment at Kurukshetra and Chandigarh and sustained permanent disability in her right hand and her six teeth were also broken.

With regard to the said accident, a case was also registered under Sections 279,337, 304-A and 427 I.P.C. on 10-4-2000 vide FIR No. 08, P.S. City Rajpura against Sunil Kumar Divedi, respondent driver. Two claim petitions were filed, one by claimant Smt. Meena alongwith her minor son Rohit and FAO No.312 of 2005

minor daughter Richa seeking compensation to the tune of Rs 30 lacs with costs and future interest on account of death of Parmal Singh. She filed another claim petition claiming a sum of Rs 3 lacs on account of the injuries sustained by her in the said accident. The age of the deceased Shri Parmal Singh at the time of the accident was 47 years and he was stated to be earning a monthly income of Rs 21,000/- as he was posted as Branch Manager in the Oriental Insurance Company, Kurukshetra. Shri Sunil Kumar Divedi, driver of the truck chose to send his written statement by post and did not present himself. No specific plea was taken in the written statement except stating that the truck was insured with the New India Assurance Company. However, respondent Jagjit Singh, owner of the truck, took a stand that there was no negligence on the part of the truck driver and the accident had occurred due to negligence of the driver of the Maruti Car. It was also pleaded that the driver of the Maruti car did not have a driving licence and registration certificate at the time of the accident. It was further pleaded that as the wife of the deceased was getting family pension from the Oriental Insurance Company, she was not entitled to claim compensation.

Respondent No.3, the appellant New India Assurance Company, took a plea that Sunil Kumar, driver of the truck, was not having a valid driving licence on the date of the accident. It also took the plea that the accident had taken place due to negligence of car driver and compensation claimed was highly excessive. On the pleadings of the parties, following issues were framed:-

1. Whether deceased Parmal Singh died in a road side accident which took place on 9-7-2000 near Rajpura, Distt. Patiala on account of rash and negligent driving of truck tanker No. UP- FAO No.312 of 2005

6801 driven by respondent No.1 owned by respondent No.2 ? OPP.

2. If issue No.1 is proved whether the claimants are entitled to any compensation as compensation. If so, how much and from whom.? OPP

3. Whether the driver of offending vehicle was not holding a valid and effective driving licence at the time of accident ? OPR

4. Relief. It is also pertinent to mention here that the application moved by the Insurance Company under Section 170 of the Motor Vehicles Act to contest the claim on merits was allowed and, therefore, the insurance company was allowed to take all the pleas to contest the claim.

The learned Tribunal on issue No.1 came to the conclusion that the accident had taken place due to negligent driving of truck driver as he had applied the brakes all of a sudden. It was also found that Shri Parmal Singh had died on account of injuries sustained in the accident. On issue No.2 the learned Tribunal found that the claimants were entitled to a compensation of Rs 15, 84,000/- In addition thereto, they were also held entitled to Rs.

10,000/- as consortium and Rs 6,000/- towards expenses for cremation, performing religious ceremonies and transportation of the dead body. Thus a total amount of Rs. 16 lacs was awarded as compensation. Apart from it, a sum of Rs 35,000/- was also awarded to claimant Smt. Meena on account of injuries sustained by her. However, on issue No.3, it was found that as the Insurance Company had led no evidence to prove that truck driver was not having a valid driving licence, the same was decided against it. Against the said award, the Insurance company has filed the present appeals.

FAO No.312 of 2005

The learned Counsel for the appellant, Mr.R.K.Bashamboo, vehemently argued that in the present case as the accident had taken place on account of Maruti car hitting the truck tanker from behind, it was a case of contributory negligence. The learned counsel placed reliance on the statement made by the driver as RW-1 to contend that he was going at a slow speed on the correct side of the road and had to stop the truck on account of red lights and on that point of time the car hit the truck from behind . Therefore, it was a case of negligence on the part of the car driver and no negligence can be attributed to the truck driver. The counsel further made reference to the statement made by the claimant to contend that it was admitted by PW-4 that the truck was going ahead of the car at the slow speed. Hon'ble the Supreme Court in the case of Municipal Corporation of Greater Bombay Vs.

Laxman Iyer, (2003) 8 SCC 731 was pleased to hold that the negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account.

Therefore, the contention of the learned Counsel for the appellant that because the accident had taken place on account of car hitting the truck from behind, it was an act of negligence on the part of the deceased or a case of contributory negligence, cannot be accepted. The learned Tribunal has taken into consideration the fact that the driver of the truck was at a normal speed, FAO No.312 of 2005

but the same was being driven in a zig zag manner. It also took note of the fact that in the investigation of the criminal case it was found that the accident had taken place due to rash and negligent driving of the truck driver.

The factum of negligence was further supported by the evidence of Nirmal Singh, who was travelling in the Maruti Car alongwith the deceased and the injured. The investigator of the insurance company also did not absolve the truck driver of the negligence in his report though he had stated that the accident had taken place on account of contributory negligence. It has also come in evidence that there was a reasonable distance between the two vehicles before the accident and it was under these circumstances applying of sudden brakes by the driver of the truck was held to be a rash and negligent act on the part of the truck driver as it was not easy for the driver of the vehicle behind to control and stop his vehicle without indication from truck driver. This finding has been recorded on the basis of evidence and circumstances of the case. Therefore, presumption of contributory negligence, cannot be drawn as suggested by the learned counsel for the appellant.

It was next contended by the learned counsel for the appellant that multiplier of 12 was not correctly applied and, as a matter of fact, it should have been of 11. I do not agree with this contention also as the deceased was aged about 47 years at time of the said accident and, therefore, the multiplier of 12 cannot be said to be excessive in an manner. Learned counsel thereafter raised a contention that for the purposes of calculation of compensation, a net salary was to be taken into consideration and not a gross salary. He placed reliance on the judgment of Hon'ble the Supreme court in FAO No.312 of 2005

the case of Asha and others Vs. United India Insurance Co.Ltd and another. (2004-1) PLR 1. The reading of this judgment shows that the Hon'ble Supreme Court had not considered the matter regarding the salary to be taken into account, but it had only reiterated the well established principles that the claimants are entitled to be compensated for the loss suffered by them. It was further pleased to hold that the loss suffered by them would be the amount which they would have been receiving at the time when the deceased was alive. It was under these circumstances that it was held by the Apex Court that the claimants would be receiving the net amount. It was also contended by the learned counsel for the appellant that the rate of interest of 9% P.A. granted by the learned Tribunal was excessive as the Hon'ble Supreme court has been awarding interest @ 7.5% P.A.

Shri Mrigank Sharma, learned counsel for the claimants- respondents contended that though the appellant has been given permission under Section 170 of the Motor Vehicles Act to contest the claim on merits, still the contention raised has to be viewed with reference to Section 149 (2) of the Motor Vehicles Act. However, this contention cannot be accepted in view of the law laid down by the Hon'ble Supreme Court in the case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta & others, (2006) 130 comp cas 325 holding therein that where a permission is granted to contest the claim under Section 147 of the Motor Vehicles Act, then the insurance company is entitled to maintain appeal on all the grounds.

I have considered the contentions of the learned counsel for the parties. Though it is open to the insurance company to raise the pleas on FAO No.312 of 2005

merits, still it is to be seen on the basis of evidence and pleadings of the parties whether any ground to challenge the same has been made out. I have already given an opinion that this was not a case of contributory negligence.

On the contrary, it is proved on record that the accident had taken place due to negligence on the part of the truck driver in applying sudden brakes without any indication to the traffic on the rear. I also do not agree with the contention of the learned counsel for the appellant that there is any error in the calculation of the loss suffered. It has come in evidence of PW-2 that the salary of the deceased for the month of June 2000 was Rs 17,615/- i.e. Rs 14,375/- as basic salary and Rs.3240/- as dearness allowance. In addition to that, the claimants claimed the total salary as Rs. 20,958.50 Ps. besides conveyance allowance. However, the Tribunal has not added this amount and has only taken into consideration the net salary which the deceased was getting at that time. Out of the total income of Rs.17615/-, the Tribunal held that the deceased must be contributing a sum of Rs. 12,000/- to the family while spending a sum of Rs 5692/- on self. This cannot be said to be, in any manner, contrary to the law laid down by the Supreme Court as relied by the learned counsel for the appellant. Thus I do not find any error in the calculations of the amount of compensation.

No other point has been raised.

In view of what has been stated and discussed above, I find no merit in these appeals and the same are dismissed. However, there will be no order as to costs.

April 18 ,2006 ( VINOD K.SHARMA)

'dls' JUDGE

FAO No.312 of 2005


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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