Kusum Devi And ORS. v. Joginder Kumar & ORS.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH FAO-3845-2008 (O&M) Date of decision: 24.02.2022 Kusum Devi and others ...Appellants V/S Joginder Kumar and others
...Respondents
CORAM: HON'BLE MR. JUSTICE ARUN MONGA
Present:
Mr. J.S. Yadav, Advocate, for the appellants.
Mr. Varun Sharma, Advocate for Mr. Ashwani Talwar, Advocate, for respondent No.3-Insurance Company.
-.- ARUN MONGA, J. (ORAL) Aggrieved by the award dated 20.05.2008 rendered by Motor Accidents Claims Tribunal, Gurugram, claimants have preferred the instant appeal for enhancement of compensation.
2.
Briefly stated, the facts of the case are that on 10.12.2005, Jaswant Singh, aged 34 years and working as Operator since 1994, was coming back to his native village Bhora Kalan after attending a marriage ceremony at Badopur in Toyota Innova vehicle of Satish Kumar. When they reached near village Khor at around 11.30 p.m, a bus bearing registration No. HR-61A-0775 owned by respondent No.2 and being driven by respondent No.1 at a very high speed, rashly and negligently came from Ateli side and after coming on its wrong side hit the Toyota vehicle being driven by Satish Kumar. After causing the accident, the respondent No.1 fled away from the spot leaving the bus at the spot. Jaswant Singh sustained grievous and serious injuries. Immediately after the accident, injured Jaswant Singh was removed to General Hospital, Rewari but then he was shifted to AIIMS, New Delhi on 11.12.2005. During treatment there, he died
on 21.12.2005. FIR No.121/2005 dated 11.12.2005 under Sections 279/337/ 304-A IPC was lodged against respondent No.1 at Police Station, Ateli, District Mohindergarh. Heirs of Jaswant Singh filed claim application for compensation.
3.
Upon notice, respondents No.1 and 2 appeared and filed written statements resisting the claim. On merits, it was averred that accident was not caused by respondent No.1.
4.
Respondent No.3-Insurance Company filed separate written statement taking preliminary objections regarding maintainability; locus standi; cause of action; concealment of material facts; non-involvement of bus; not holding of valid and effective driving licence etc. 5.
From the pleadings of parties, following issues were framed by the learned Motor Accident Claims Tribunal:- 1) Whether the accident in question resulting in death of Jaswant Singh was caused because of rash and negligent driving of bus No. HR-66A-0775 by its driver-respondent No.1?OPP 2.
If issue No.1 is proved, whether the claimants are entitled to get compensation. If so, to what amount and from whom? OPP 3.
Whether the respondent No.1 was not holding a valid and effective driving licence to drive the offending vehicle at the time of alleged accident. If so, its effect? OPR-3. 4) Relief.
6.
On the basis of evidence adduced by both the parties, Issues No.1 and 2 were decided in favour of the claimants whereas Issue No.3 was decided against respondent No.3. Accordingly, vide Award dated 20.05.2008 passed by the learned Tribunal, a total compensation of Rs.8,30,000/- along with 7.5% interest from the date of filing of the claim petition till realization was awarded to all the claimants.
7.
Learned counsel for the appellants argues that the appellants are entitled to enhanced amount of compensation in view of the judgments
rendered by Apex Court in case titled as "National Insurance Company Limited Vs. Pranay Sethi 2017 (4) RCR (Civil) 1009 SC" and "Megma General Insurance Company Ltd. Vs. Nanu Ram alias Chuhru Ram and others, 2018 (4) RCR (Civil) 333 SC".
8.
Per contra, learned counsel appearing on behalf of the insurance company opposes the appeal, inter alia, on the ground that it is a case of contributory negligence on the part of the driver of the Innova Vehicle as also the driver of the offending bus. However, the learned Tribunal completely ignored the factual position duly established on record and held that the driver of the bus was solely responsible for causing the alleged accident. Further, the insurance company would not be liable to pay any sort of compensation since the licence of the driver was not valid at the time of accident.
9.
Heard learned counsel for the parties and perused the paper book.
10.
The issue of contributory negligence is no more res integra in view of ratio of law laid down in Mohammed Siddique and another Vs. National Insurance Company Limited and others, 2020 AIR SC 520. Therein Supreme Court held as under:
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In present case, the learned Tribunal repelled the plea of contributory negligence observing as under :
"15.
The learned counsel for the respondent No.3 contended that the witness Surender Singh (PW8) had stated in the cross-examination that Rewari-Narnaul road was straight Highway and it was sufficiently wide and complete road and two vehicles could easily pass each other at a time and all the vehicles were on the metalled road and as such there was contributory negligence of both the drivers i.e. the drivers of the vehicles Innova car and the bus. There is no merit in this contention because when Surender Singh is stating that the accident took place due to sole rash and negligent driving of the bus driver and when the bus driver i.e. the respondent No.1 Joginder is facing trial for causing the said accident. In such
circumstances there is no other alternative except to hold that the accident took place due to sole rash and negligent driving of the respondent No.1 while driving bus bearing registration No. GR-66A-0775. This issue is accordingly decided in favour of the claimants xxx3 To my mind, the said conclusion was rightly drawn. 12.
The other argument of learned counsel for the Insurance Company is that licence of the driver was not valid and effective, is also without substance. Under Issue No.3, a firm finding of fact was recorded by the learned Tribunal that a valid driving license of respondent No.1 had been produced on record.
13.
However, with regard to quantum of compensation, having addressed the rival contentions for some time, both the learned counsels are now ad idem that the award under challenge be modified in view of the judgment rendered by Apex Court in case titled as "National Insurance Company Limited Vs. Pranay Sethi 2017 (4) RCR (Civil) 1009 SC" read with "Megma General Insurance Company Ltd. Vs. Nanu Ram alias Chuhru Ram and others 2018 (4)RCR (civil) 333 SC" as below: Deceased Sh. Jaswant Singh, 35 years old Salary 13,932/- Gross Future prospects @40% increase, self employed or fixed salaries (Being less than 40 years of age) 5,572/- Total P.M.
19,504/- Deduction towards personal expenses (Being 5 dependents) 1/4th =4,876/- Dependency 14,628 X12=1,75,536/- Multiplier (Being less than years) 26,33,040/- Consortium of claimants 40,000/- Funeral charges 15,000/- Loss of estate 15,000/-
Loss of Love 1,00,000/- Medical expenses 20,000/- Total 28,23,040/- Awarded amount 8,30,000/- Amount to be enhanced 19,93,040/- 14.
In the premise, on the joint consent of learned counsels, the impugned award is modified to that extent as computed aforesaid. 15.
Accordingly, remittance be made in terms of the above computation. After adjustment of amount, if any already paid, balance of enhanced amount be remitted within a period of two months from today along with interest @ 6% per annum from the date of claim petition till the actual realization.
(ARUN MONGA) JUDGE February 24, 2022 Vandana Whether speaking/reasoned:
Yes/No Whether reportable:
Yes/No