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BALBIR KAUR & ANR versus NEK SINGH & ORS

High Court of Punjab and Haryana, Chandigarh

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Balbir Kaur & Anr v. Nek Singh & Ors - FAO-217-1988 [2006] RD-P&H 4413 (20 July 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO No. 217 of 1988 and

Cross Objection No.77-CII of 1991

Date of Decision: 5.07.2006

Parties Name

Balbir Kaur and another

Appellants

versus

Nek Singh and others

Respondents

CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
Present: Shri Vikas Singh, Advocate for the appellants None for the respondents

None for the Cross-objector

JUDGMENT

Jasbir Singh, J. (Oral)

This order will dispose of FAO No.217 of 1988 and also Cross Objection No.77-CII of 1991 filed by Sham Sunder respondent No.2 in this appeal.

Vide award dated 14.11.1987, the Motor Accident Claims Tribunal, Faridkot (in short the Tribunal) awarded an amount of Rs.18,000/- with interest @ 12% per annum in favour of the appellants on account of death of Daljit Singh, son of appellant No.1 and brother of appellant No.2 respectively, in a motor accident

It is apparent from the records that on 24.2.1986, Daljit Singh, who was employed as an ASI with the State of Punjab, alongwith his FAO No. 217 of 1988 and - 2 -

Cross Objection No.77-CII of 1991

brother Inderjit Singh, was going on motor cycle bearing No.PNC 4550 from Moga to Kot Kapura. Inderjit Singh was sitting on the pillion seat.

When they reached near Octroi post Moga, truck bearing No.PUT 6422 being driven by Nek Singh came from the side of Kotkapura. Truck which was being driven in a rash and negligent manner struck against the motor cycle from the front side. Daljit Singh received injuries in that accident and was taken to hospital, where he was declared dead. FIR Ex.P2 was lodged in that regard against driver of the offending vehicle.

During trial of the claim application, both the parties were given ample opportunity to prove their case and on perusal thereof, the Tribunal held that the driver of the offending vehicle was responsible for causing that accident. As the truck was not insured, Sham Sunder- respondent No.2, the registered owner and the driver Nek Singh were held liable to pay the amount of compensation awarded by the Tribunal.

Counsel for the appellant has vehemently contended that the amount of compensation awarded is very less. He argued that father of the deceased had already died, deceased and his brother Inderjit Singh were only earning members of the family and the deceased was contributing Rs.700-800 per month to the family/ the appellants for their survival. It has further been stated that the Tribunal has wrongly placed reliance, only upon the statement of PW1 i.e. appellant No.1, who is an old lady and might be confused at the time when she appeared in the witness box. Counsel further stated that the Tribunal was not justified in ignoring evidence of PW3/appellant No.2. He further argued that when father was not alive, it can reasonably be presumed that the deceased, who was earning member of the family and was employed with the State of Punjab, might be spending sufficient amount upon the appellants. Otherwise, with an amount of FAO No. 217 of 1988 and - 3 -

Cross Objection No.77-CII of 1991

Rs.490/-, which the appellant No.1 was getting towards pension after death of her husband, it was not possible for them to maintain themselves. It has been prayed that the amount of compensation be enhanced.

None has put in appearance on behalf of the respondents to oppose this appeal. In Cross-objection, no dispute has been raised so far as the factum of accident is concerned.

The Tribunal, after perusing evidence, regarding accident, has rightly said that it was caused due to rash and negligent driving of Nek Singh, the driver. Finding to that extent exists in paragraph No.9 of the award, under challenge. So far as grant of compensation is concerned, this Court feels that the same is on the lower side. It is not in dispute that the deceased was working in the police department as an ASI and was getting Rs.1200/- per month as salary. Simply, by taking note of one line in the cross-examination of PW1/ appellant No.1, the Tribunal has said that the deceased was contributing only Rs.100/- to his legal representatives. While saying so, the earlier portion of the examination-in-chief of PW1 has totally been ignored, wherein, it was stated by PW1 that the claimants were fully dependent on the deceased. It has come on record that appellant No.1 was getting Rs.490/- per month as pension. This Court feels that it was not possible for her and her unmarried daughter to survive with said paltry amount. Father was not alive, the deceased and his brother Inderjit Singh were the only earning members of the family. Under these circumstances, this Court further feels that the Tribunal was not justified in ignoring evidence of Ranjit Kaur (PW3) - appellant No.2, who has categorically stated that the deceased was contributing Rs.700-800 per month for their maintenance. She has not been cross-examined in that regard. Under these circumstances, this Court feels that the deceased being the earning member FAO No. 217 of 1988 and - 4 -

Cross Objection No.77-CII of 1991

of the family, might be contributing Rs.500/- per month to run affairs of the family. To that extent, findings given by the Tribunal are modified and it is held that the dependency of the legal representatives of the deceased comes to Rs.6000/- per year. Age of the deceased was 22 years and the Tribunal has applied a multiplier of 15, which this Court feels, is perfectly justified.

In view of findings given above, this Court feels that the appellants are entitled to get compensation of Rs.90,000/-. They are also entitled to get interest @ 9% per annum from the date of award passed by the Tribunal till realization of the amount. So far as liability of respondent No.2 to make compensation is concerned, it was his specific stand that he had sold the truck to respondent Nos.3 and 4. The Tribunal has discarded evidence in this regard and observed as under:- "Now, it is to be seen from whom, the claimants will be entitled to get the amount of the compensation. It is proved that Nek Singh respondent was driving the truck and Shamsunder was its owner and the truck was not insured. So, the claimants are entitled to get the compensation from Nek Singh and Sham Sunder. They are jointly and severally liable to pay the compensation. It is the allegation of Sham Sunder that he sold the truck in question to Baldev Singh and Darshan Singh for Rs.45,000/-. Ex.R1 is the photo copy of the receipt which cannot be taken into consideration because the original receipt was not produced. No notice was given to Baldev Singh or Darshan Singh to produce the original receipt and no permission was obtained to produce the secondary evidence of the receipt. So, in that circumstances, the document Ex.R1 cannot be relied upon. Moreover, Sham Sunder stated that he FAO No. 217 of 1988 and - 5 -

Cross Objection No.77-CII of 1991

gave affidavit and power of attorney to Baldev Singh regarding transfer of the truck but no such affidavit or power of attorney was produced. From the evidence of RW2 it is proved that the truck No.PJT 6422 stands registered in the name of Sham Sunder. So, Sham Sunder is a registered owner of the truck and is liable to pay the amount jointly and severally with Nek Singh and in this connection 1986 (2) Punjab Law Reporter, page 440 Harbans Singh and others v. Makhan Lal and others be referred, where it was held as follows:- "Motor Vehicles Act (IV of 1939) Section 95 Evidence that whosever was driving the Car was negligent Registered owner liable."

So, it is not proved that Sham Sunder has sold the truck to Baldev Singh and Darshan Singh. So, Baldev Singh and Darshan Singh are not liable to pay the compensation. The issue is decided in favour of the claimants." This Court feels that the findings given above are perfectly justified. The Tribunal has rightly ignored receipt (Ex.R1) as the same was not proved on record, as per law. Furthermore, it has come in statement made by Sham Sunder- respondent No.2, that the truck was got released on `Superdari' by Nek Singh, through him. If that is so, his version that he had already sold the truck before the date of accident is palpably wrong.

With above mentioned modifications, appeal and cross-objection stands disposed of.

July 05, 2006 ( Jasbir Singh )

gk 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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