High Court of Punjab and HaryanaFAO/561/2006allowed

Varsha Rani & ORS v. Rishi Pal & ORS

2024-11-19Mrs. Justice Sudeepti Sharma19 pages

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1. Whether the accident took place due to rash and negligent driving of Car No. CH01J9844 by respondent No. 1 аs alleged? OPP.

2. Whether the petitioners are entitled to compensation, if so, how much and from whom? OPP.

3. Whether respondent No. 1 was not holding any valid and effective driving licence at the time of accident, if so, its effect ? OPR.

4. Whether the respondents No. 1 to 4 violated the terms and conditions of Insurance policy as alleged? OPR.

5. Relief.

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# "11. The Ld. Counsel for the claimants has argued that the claimants have examined Ravinder as PW1 and Bharat Bhushan injured/eye witness as PW4 who have deposed that the accident took place due to rash and negligent driving of the Maruti Car by the respondent No. 1. Veracity of their testimony could not be shattered by their cross examination. Their testimony is also supported by testimony of PW2 Daya Nand, Additional Ahlmad who has proved copies of challan, site plan and charge sheet Ex.

PW2/A to Ex. PW2/C which show that the respondent No. 1 is being prosecuted for commission of offences punishable under sections 279 and 304A of the Indian Penal Code, 1860. In their written statement, the defendants No. 1, 3 and 4 have admitted the accident by pleading that the accident took place due to the sole negligence of the respondent No. 1. FIR was lodged against unknown vehicle/driver. It was the duty of the Investigating officer to search out the offending vehicle and the driver thereof. The Investigating officer searched out the offending vehicle and the driver. The claimants have filed the claim petition according to the investigation of the Investigating officer. The respondent No. 5 has failed; to prove false implication of the driver and owner of the offending car.

It was not necessary to mention name of the eye witness in FIR. On knowledge, the investigating officer challaned the driver and the vehicle. The owner and the driver of the offending vehicle did not file any complaint regarding their false implication to the higher police officers or any other agency. The respondent No. 5 cannot escape its liability by simply saying that the driver and the owner have been falsely implicated. Complaint made by the respondent No. 5 to S.P. Panipat was of no value. The claimants belong to Samalkha. The respondent No. 1 belongs to Panpat and the respondent No. 2 belongs to Chandigarh and there is no question of collusion between them and with the police: The claimants have proved their claim as to causing of the accident by the respondent No.

1 due to rash and negligent driving of the car by the respondent No. 1.

12. The Ld. Counsel for the respondents No. 1, 3 and 4 has argued that the accident took place due to sole negligence of the deceased while the Ld. Counsel for the respondent No.2 has argued that the Maruti Car was not the offending vehicle.

13. On the other hand, the Ld. Counsel for the respondent No. 5 has argued that the present claim petition has been filed on the basis of FIR No. 424 dated 21.10.2002 under sections 279/304A of the Indian Penal Code, 1860, Police Station Chandni Bagh,

Panipat. Bharat Bhushan the pillion rider of the Motor Cycle had lodged FIR against unknown vehicle/unknown driver. After a gap of three months, the criminal investigating officer of the criminal case recorded the statement of Ravinder Kumar and involved Car No. CH01J9844 and the respondent No. 1 and submitted the challan. The respondents No. 1. 3 and 4 admitted the accident in their written statement. The respondent No. 2 pleaded having sold the vehicle. The respondent No. 5 made written representation Superintendent of to the Police, Panipat for reinvestigatin of the case. The S.P. Panipat did not call any official of the respondent No. 5 and the police officials did not investigate the case. Name of eye witness Ravinder who also belongs to Sewah was not mentioned in the FIR.

Ravinder did not come forward to make his statement to the police on 21.10.2002. Ravinder never tried to shift the injured persons in the Hospital. The presence of Ravinder at the spot is clearly doubtful. The statement made after three months is not of much evidentiary value. Ravinder and Bharat Bhushan have still not given any evidence in criminal case. The claimants have falsely involved the vehicle and the driver in collusion with the respondents No. 1 to 4 and the police in order to get compensation from the respondent No. 5. In support of his arguments, the Ld. Counsel for the respondent No. 5 has placed reliance on the observations in Smt. Chand Kaur and others Vs. Mohinder Singh and others 2001 (1) Criminal Court Judgments 648 (Pb. & Hr. H.C.), Madya Pradesh State Road Trans. Corpn. Vs. Vaijanti and others 1995 ACJ 560 (M.P.H.C.)

and Din Dayal Vs. Raj Kumar alias Raju 1998 (2). Criminal Court Judgments 159 14.

To prove that the accident resulting in death of Ashok Kumar alias Monu was caused due to rash and negligent driving of Maruti Car No. CH01J9844 by the respondent No. 1, the claimants have examined Ravinder (eye witness) as PW1, Bharat Bhushan (injured/eye witness) as PW4 and Daya Nand, Additional Ahlmad as PW3 and produced copies of challan, site plan and charge sheet Ex. PW2/A to Ex. PW2/C.

15. In his affidavit Ex. PW1/A, PW1 Ravinder hás stated that on 20.10.2002 at about 11.00 P.M., he was going to his house from his fields. When he reached near Giani Dhaba, he suddenly head noise of some vehicles and he saw that Maruti Car No. CH01J 9844 had hit a Motor Cycle and the driver of the Car was trying to fled from the spot and after intervention by him, the driver of the Maruti car mentioned his name respondent No. 1. fled from the spot. and address as the The respondent No. 1 then The accident took place due to the rash and negligent driving of the respondent No. 1. Ashok Kumar, the driver of the Motor Cycle died on the spot and pillion rider Bharat Bhushan had got minor injuries. The Investigating officer met him on 16.1.2003 near Giani Dhaba and recorded his statement.

16. In his affidavit Ex. PW4/A, PW4 Bharat Bhushan has stated that on 20.10.2002 at about 10.30 Ρ.Μ., he and Ashok Kumar proceeded from Samalkha to Panipat on Rajdoot Motor Cycle No. HR05B/4519 driven by Ashok Kumar.about 11.00 P.M. when they reached near Giani Dhaba near Sewah, a maruti Car driven by the respondent No. 1 rashly and negligent came from Samalkha side and hit their Motor cycle due to which they fell down and Ashok Kumar died at the spot and he (PW4 Bharat Bhushan) received minor injuries. After the accident, the respondent No.1 fled with his Maruti Car and he could not note down the number of the Maruti Car. On 16.1.2003 when he and Head Constable ..Raj Kumar: were present in investigation of the Case at Giani Dhba in Sewah, PW1 Ravinder came there and made statement to the Investigating Officer. ON 18.1.2003 on being called by the Investigating Officer, he went to the police station and identified the respondent No. 1.

18. In his cross examination, PW1 Ravinder has admitted that he went to the spot on hearing the noise and he had not seen the collusion between the vehicles at that time but he heard only noise. In view of this admission, testimony of PW1 Ravinder as, to causing of the accident by rash and negligent driving of Maruti

Car No. CH01J9844 by the respondent No. 1 does not warrant/deserve credence and acceptance.

19. Even otherwise in his cross examination, PW1 Ravinder has admitted that:

(1) after the accident police reached the spot. (ii) Statement of Bharat Bhushan was recorded in his presence. (iii) On that day, police did not record his (PW1 Ravinder's) statement:

(iv) He did not disclose the name and address of the driver and number of vehicle to Bharat Bhushan at the spot at the time of accident;

(v) Police met him after three months from the accident when he made statement to the police.

These admissions of PW1 Ravinder prove his conduct which was not only unnatural but also warrants/justifies the inference that Ravinder was not on the spot. Reference in this regard may be made to Din Dayal Vs. Raj Kumar alias Raju (Supra). If PW1 Ravinder had stopped the offending car and the driver immediately after the accident and the driver of the offending car had disclosed his name and address to him, then PW1 Ravinder would have immediately told the name and address of the driver and the number of the car to PW4 Bharat Bhushan. In any case, PW1 Ravinder would have disclosed the same when statement (as to causing of the accident by unknown vehicle) of Bharat Bhushan was being recorded/made in his presence.

PW1 Ravinder was duty bound in view of legal obligation to disclose the name and address of the driver and the number of the car to the police. Conduct of PW1 Ravinder of not informing the police or the other injured about the name and address of the driver and the number of the car for the long period of three months without any plausible explanation shatters the veracity of his testimony as to his presence on the spot, stopping of the offending vehicle by him and disclosure of his name and address by the driver to him.

20. Moreover, it is also pertinent to observe that in his statement Ex. R1 on the basis of which FIR was registered, PW4 Bharat Bhushan had not mentioned as to PW1 Ravinder or any other eye witness being present and having witnessed the occurrence. In their affidavits. Ex. PW1/A and Ex. PW4/A, PW1 Ravinder and PW4 Bharat Bhushan have stated that when PW4 Bharat Bhushan and Investigating Officer were present investigation, PW1 Investigating Officer at Giani Dhaba Ravinder met at for the Giani Dhba or 16.1.2003 and made statement to him but in his cross examination PW1 Ravinder has stated tha the police met him after three months; the police came to his residence at village siwal and at that time, PW4 Bharat Bhushan was also with the police.

If the Investigating officer of the case and PW4 Bharat Bhushan went to the residence of PW1 Ravinder at village Siwah and PW1 Ravinder did not meet them on Giani Dhaba, then it is a mystery how the Investigating Officer of the case and PW4 Bharat Bhushan came to know that PW1 Ravinder was also present on the spot and knew the name and address of the driver and the number of the offending vehicle. Visit by the Investigating officer of the case with PW4 Bharat Bhushan to the house of PW1 Ravinder without any linking information by itself proves that PW1 Ravinder was not present on the spot and did not witness, any such occurrence as deposed to by him and PW1 Ravinder was subsequently introduced as witness in collusion with the respondents No. 1, 3 and 4 and the respondent No.

2 with the connivance of the police to get compensation from the respondent No.

21. RW2 Partibha Lady Head Constable has proved making of complaint by the respondent No. 5 to S.P. Panipat for re investigation on the ground of collusion between the claimant and the respondents No. 1 to 4 and connivance by the police. No doubt in that compliant the respondent No. 5 mentioned wrong number and date of FIR as proved by entry in receipt register deposed to by RW2 Pratibha Lady Head Constable but the police made

reports on the complaint in respect of the case pertaining to FIR number and date of which were wrongly mentioned and did not even go through the contents of the complaint of the respondent No. 5. The respondent No. 5 had done its needful and the lapse was that of the police in not reinvestigating the matter. 22.

No doubt, PW2 Daya Nand Addl. Ahlmad has stated that in case State Vs. Rishi Pal, FIR NO. 424 dated 21.10.2002 under Sections 279 and 304 A of the Indian Penal Code, 1860 Police Station Chandni Bagh, Panipat, charges have been framed against the respondent No. 1 and PW2 Daya Nand Addl. Ahlmad has proved copies of challan, site plan and charge sheet Ex. PW2/A to Ex. PW2/C but prosecution of the respondent No. 1 is not sufficient to prove causing of the accident due to rash and negligent driving of Car No. CH01J9844 by the respondent No. 1. Reliance in this regard may be placed on the observations in Ram Kara Versus zile Singh 2001(3) RCR (Civil) 583. R Daya Nand, Addl. Ahlmad has proved that Ravinder was served with summons through brother for 19.12.

2003 and PW4 Bharat Bhushan was served with summons through sister but no prosecution evidence had been ẻ recorded. Th fact that PW1 Ravinder and PW4 Bharat Bhushan did not appear to depose against the respondent No. 1 on the dates of hearing fixed for prosecution evidence despite legal obligation also justice inference of collusion between the claimants and the respondents No. 1 to 4.

1. 23. Even though in their written statement, the respondents No. 1, 3 and 4 admitted the accident but at the same time, the respondents No. 1, 3 and 4 pleaded sole negligence of the deceased to be the cause of the accident. It is settled law that an admission whether amounting to confession or not unless it is separable has to be taken as a whole or not at all. Reference may be made to Md. Koya Vs. Muthu Koya AIR 1979 SC 154. Therefore, the admission has to be accepted or rejected as a whole. If the two parts are held to be separable, then the claimants have not been able to

impeach the credibility of latter part of the admission/defence of the respondents No. 1, 3 and 4. Section 58 of the Indian Evidence Act, 1872 provides that the facts admitted need not be proved but in view of plea of collusion taken by the respondent No. 5. the claimants and the respondents No. 1. 2, 3 and 4 were bound to prove the facts admitted otherwise than by admission. The respondents No. 1, 2, 3 and 4 have not produced any oral or documentary evidence to prove that:

(1) On 20.10.2002, the respondent No. 1 was employed under the respondent No. 2 as driver;

(ii) Accident of the Motor cycle driven by the deceased took place with the Car of the respondent No. 2. The respondents No. 1, 2, 3 and 4 have not entered into the witness box which not only warrants drawing of adverse inference against the respondents No. 1, 2, 3 and 4 in view of law reiterated in Madhya Pradesh State Road Transport Corporation Vs Vaijanti and others (Supra) but also shows collusion between the claimants and the respondents No. 1 to 4.

24. In Smt. Chand Kaur and others Vs Mohinder Singh and others (Supra), where witness did not give the number of the truck and his presence was doubtful as he was not a eye witness named in FIR, it was held by Hon'ble Punjab and Haryana High Court that the Tribunal rightly ignored the same and that rash and negligent driving had not been established.

25. In these facts and circumstances of the саsе and in view of the above quoted judicial precedents, oral and documentary evidence produced by the claimants cannot be relied and acted upon and is liable to be discarded and the claimants must be held to have failed to prove that the accident resulting in death of Ashok Kumar alias Monu was caused due to rash and negligent driving (1) of Car No. CH01J9844 and (11) by the respondent No. 1."

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# F30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having a considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be onethird (1/3rd) where the number of dependent family members is 2 to 3, onefourth (1/4th) where the number of dependent family members is 4 to 6, and onefifth (1/5th) where the number of dependent family members exceeds six.

31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus even if the deceased is survived by parents and siblings, only d the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger nonearning sisters or brothers, his personal and living expenses may be restricted to onethird and contribution to the family will be taken as twothird. * * * * * *

42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas3, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M17 for 26 to 30 years, M16 for 31 to 35 years, M15 for 36 to 40 years, M14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two units for every five years, that is, M11 for 51 to 55 years, M9 for 56 to 60 years, M7 for 61 to 65 years and M 5 for 66 to 70 years.

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# F52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh2. It has granted Rs.25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed.

The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be factcentric or quantumcentric.

We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years.

are disposed to hold so because that will bring in consistency in respect of those heads.

* * * * * 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4. In case the deceased was selfemployed (or) on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma4 which we have reproduced hereinbefore.

59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma1 read with para 42 of that judgment. 59.7. The age of the deceased should be the basis for applying the multiplier.

59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

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# "21. A Constitution Bench of this Court in Pranay Sethi2 dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.

21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation".

21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training".

21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions worldover have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.

24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi2. In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium. 6 (

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