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SUKHDEV SINGH versus PIARA SINGH & ORS

High Court of Punjab and Haryana, Chandigarh

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Sukhdev Singh v. Piara singh & Ors - FAO-580-1987 [2006] RD-P&H 5403 (8 August 2006)

In the High Court of Punjab and Haryana, Chandigarh

F.A.O. No. 580 of 1987

Date of Decision: August 9, 2006

Sukhdev Singh

...Appellant

Versus

Piara singh and others

...Respondents

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
PRESENT: Mr. Ramesh Sharma, Advocate,

for the appellant.

Mr. A.S. Ahluwalia, Advocate,

for respondent Nos. 1 and 2 - Objectors

JUDGMENT

M.M. KUMAR, J.

This is owner's appeal filed under Section 110-D of the Motor Vehicles Act, 1930 (for brevity, `the Act') challenging the award dated 16.12.1986, passed by the Motor Accident Claims Tribunal, Gurdaspur (for brevity, `the Tribunal'). The Tribunal has recorded a categorical finding by clubbing two claim petitions arising out of the same accident that the offending truck bearing Registration No. PBN-2357 is owned by the owner-appellant and that the accident was caused by the rash and negligent driving of the driver-respondent No. 3, as a result of which Sowinder Singh died on the spot while Joginder Singh had sustained injuries. The claim in the instant appeal pertains to the dependents of Sowinder Singh, who was 18 years old F.A.O. No. 580 of 1987

at the time of his death. He had been working as a labourer and his gross monthly income has been held to be Rs. 300/-. The dependents are the father and mother of the deceased. The Tribunal assessed the dependency at Rs. 200/- per month i.e. Rs. 2,400/- per annum. A multiplier of 16 was applied and an amount of Rs. 38,400/-, rounded off to Rs. 40,000/- was awarded to them. The finding on the aforementioned issue as recorded by the Tribunal reads as under:- " 13. As regards application no. 23 the two applicants namely Piara singh and Harans Kaur are the parents of Sowinder Singh deceased. The testimony of Piara Singh (PW7) has proved that Sowinder Singh deceased had been doing casual labour and had been earning Rs. 600/- per month, the witness however states in his cross- examination that he was also been working as a labour and has been earning Rs. 10 to Rs. 15/- per day when he gets work. This means that the deceased being a casual labour had also been earning between Rs. 10/- to Rs. 15/- per day when he had been getting work to do. From this evidence, the monthly income of the deceased can be held round about Rs. 300/- per month. Out of this amount, he must be keeping for his personal expenses sum of Rs. 100/- per month. In this way the annual dependency of the two applicants namely Piara Singh and Harbans Kaur on their deceased son comes to Rs.

2400/-. As per the principle laid down in Lachman F.A.O. No. 580 of 1987

Singh Vs. Gurmit Kaur 1979 A.C.J. 170, the suitable multiplier in this case would be 16 and with this multiplier the amount of compensation which should be awarded to these two applicants come to Rs. 38400/- and converting it into round figure, it must be assessed at Rs.

40000/-. ......"

The Tribunal also recorded a finding that the truck was not insured with the respondent insurance company i.e. Oriental Fire and General Insurance Company Ltd. because no evidence was produced on the file. The finding in that regard reads as under:- "......There is no evidence on the file to show if the truck involved in the accident was insured with the respondent insurance company. In the absence of any such evidence, the respondent insurance company cannot be held liable for this compensation amount and the other respondents are jointly and severally liable to pay this amount to these two applicants. This issue is decided accordingly in favour of the applicants." Mr. Ramesh Kumar, learned counsel for the owner- appellant, has pointed out by referring to para 15 of Claim Petition No. 23 of 1984 that it was specifically asserted in the aforementioned para that the offending truck bearing No. PBN-2357 was insured with the respondent insurance company, vide Policy No. 84/00363.

Learned counsel has also referred to the reply in the corresponding para of the respondent insurance company wherein it is categorically F.A.O. No. 580 of 1987

admitted that the truck in question was insured with the respondent insurance company. He has then made a reference to the Claim Petition No. 24 of 1984, wherein the reply filed by the respondent insurance company to a similar para is that the assertion made by the claimant was not contested. Accordingly, it has been urged that the findings recorded by the Tribunal fastening the liability on the owner- appellant are liable to be set aside.

Mr. A.S. Ahluwalia, learned counsel appearing for the claimant-objectors 1 and 2 has argued on the basis of the cross- objections that the income of the deceased could not be assessed at Rs. 300/- per month presuming that the deceased was a labourer.

According to the learned counsel, the rate of labour during those days used to be Rs. 1,500/- per month. He has further emphasised that the age of the deceased was 18 years and his future prospects are also required to be taken into account. Learned counsel has urged that in no case the income of the deceased could be assessed at less than Rs.

450/- per month and after deducting 1/3rd for his personal expenses,

the loss of dependency per month would not work out less than Rs.

300/-. He has further pointed out that the rate of interest of 6% per annum awarded by the Tribunal is also on extremely lower side whereas in the year 1987 the rate of interest used to be awarded at not less than 12%.

I have thoughtfully considered the submissions made by the learned counsel for the owner-appellant as well as claimant-cross- objectors. The factum of accident on the fateful day of 31.8.1984 at F.A.O. No. 580 of 1987

about 10.00 p.m., remains undisputed. The rash and negligent driving of the driver-respondent No. 3, hitting the tractor-trolley at its back at a high speed, has also gone un-rebutted and there are categorical findings of fact on record. However, the first question which arises for determination is as to whether the Tribunal has committed error on the face of record by concluding that the offending truck bearing No. PBN-2357 was insured with the respondent insurance company.

The second question which is required consideration is as to whether the amount of compensation has been correctly assessed by the Tribunal.

Re: Question 1.

A perusal of para 15 of the Claim Petition No. 23 of 1984 would show the admission by the respondent insurance company. Even in Claim Petition No. 24 of 1984, which has arisen out of the same accident, the assertion was made in the same terms.

In that claim petition also the assertion is that the offending truck bearing Registration No. PBN-2357 was insured with the Oriental Fire and General Insurance Company Ltd., Batala and the same policy number has been mentioned. The aforementioned assertion has not been contested. It is well settled that admissions are the best evidence and once a fact is admitted it would not give rise to any issue. In that regard a reference may be made to Section 58 of the Evidence Act, 1872, which categorically provides that a fact does not need to be proved in any proceeding which the parties to that proceeding have admitted at the time of hearing or which by any rule of pleading in F.A.O. No. 580 of 1987

force at the time of such facts, are deemed to be admitted. The aforementioned proposition of law has been reiterated in the case of Naseem Bano v. State, AIR 1993 SC 2592. Therefore, the respondent insurance company cannot wriggle out of its liability undertaken by the insurance policy. Accordingly, the finding recorded by the Tribunal that there was no evidence on record that the offending truck was insured is hereby set aside and it is held that the offending truck bearing Registration No. PBN-2357 was insured with the respondent insurance company.

Re: Question 2.

The argument raised by the learned counsel for claimant- respondent Nos. 1 and 2 is also meritorious. There was no reason for the Tribunal to discard the testimony of Piara Singh, PW-7, when he stated that his son Sowinder Singh had been working as a casual labourer and was earning Rs. 600/- per month. Merely because his own rate of labour given is Rs. 10/- to 15/- per day, does not necessarily lead to an inference that Sowinder Singh, who was 18 years of age, was also earning wages at the rate of Rs. 10-15 per day.

Therefore, it would be fair to assess the monthly income of the deceased at Rs. 450/-. The aforementioned figure in any case could be calculated by keeping in view the enhancement of income on account of future prospects and the higher rates of even casual labour in the years to come. Such calculation is possible to be made on the basis of judgments of Hon'ble the Supreme Court in the cases of General Manager, Kerala S.R.T.C. v. Susamma Thomas, (1994) 2 F.A.O. No. 580 of 1987

SCC 176 and Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179.

Accordingly, I assess the income of the deceased at Rs. 450/- per month and after reducing 1/3rd

amount of Rs. 150/-, the loss of

dependency per month works out to be Rs. 300/- per month and Rs.

3,600/- per annum. Accordingly, the awarded amount is enhanced to Rs. 57,600/- (Rs. 300 x 12 x 16 = Rs. 57,600/-). The aforementioned amount is rounded off to Rs. 58,000/-

I am further of the view that the interest at the rate of 6% awarded by the Tribunal is also on lower side as in those days the rate of interest was much higher. Accordingly, the rate of interest is increased to 10% per annum.

In view of the above, the award is modified. A compensation of Rs. 58,000/- is awarded to the claimant-respondent Nos. 1 and 2, which shall be shared by them equally. The owner- appellant and the respondent insurance company are jointly and severally held liable to pay this amount to the claimant-respondent Nos. 1 and 2. The claimant-respondent Nos. 1 and 2 (cross-objectors) are also allowed interest at the rate of 10% per annum on the awarded amount, from the date of claimant petition till its realisation. The claimant-respondent Nos. 1 and 2 are also held entitled to costs, which is assessed at Rs. 5,000/- .

(M.M. KUMAR)

August 9, 2006 JUDGE

Pkapoor

F.A.O. No. 580 of 1987

FIT FOR INDEXING


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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