Krishna And ORS v. Ramesh Kumar And ORS
-1IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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Whether only the operative part of the judgment is pronounced? NO Whether full judgment is pronounced?
YES % &'( )*% !*
!" #$ SUDEEPTI SHARMA J.
1.
The present appeal has been preferred for setting aside the award dated 22.04.2011 passed in the claim petition filed under Section 166 of the Motor Vehicles Act, 1988, by the learned Motor Accident Claims Tribunal, Hisar (for short, 'the Tribunal'), whereby, claim petition filed by the appellants/claimants, was dismissed.
FACTS NOT IN DISPUTE 2.
The brief facts of the case as per award dated 22.04.2011 are that on 19.12.09 at about 10.30 pm Purushotam Datt Sharma (since deceased) was coming from village Mundhal to village Bass on his motor cycle bearing temporary Regn. No. HR-99 CD (Temp).4729 and when he reached at Madan Heri Mor, T Point, Jind Bhiwani road, truck bearing regn. No. HR-46A-4927 (hereinafter referred to as the offending vehicle) which
-2was being driven by respondent no.1 in a rash and struck against negligent manner, Purushotam Dass Sharma. As a result of the accident, injured fell down on the left side of road and died at the spot. The driver of the offending vehicle ran away from the spot after causing the bearing no.420 accident. FIR dated 20.12.09 sections under 279/304A IPC Police Station Narnaund was registered regarding the accident. Post Mortem of the deceased was conducted at General Hospital, Hansi. It is further submitted that the accident took place solely due to rash and negligent driving of respondent no.1, who being driver, respondents no.2 and 3 being owners and respondent no.4 offending being vehicle insurer of the jointly are and severally liable to pay compensation to the petitioners.
3.
Upon notice of the claim petition, the respondents appeared and filed their separate replies denying the factum of accident/compensation. 4.
From the pleadings of the parties, the learned Tribunal framed the following issues:- "1 Whether accident resulting into death of Purushotam Dutt Sharma took place on 19.12.09 near Madanheri Mor on account driving of of rash and negligent respondent no.1 while driving truck bearing Regn. NO. HR- 46A-4927 ? OPP
2. If issue no.1 is proved whether the petitioners entitled are to claim compensation, if so to what amount and from whom? OPP
-33. Whether petition the is not maintainable in present form ? OPR
4. Whether the petitioners have no cause of action/locus standi to file the present petition ? OPR
5. Whether the owner of the offending vehicle was having valid route permit at the time of alleged accident? OPR
6. Whether the offending vehicle was being driven in violation of the terms and conditions of insurance policy? OPR
7. Relief"
5.
After taking into consideration the pleadings and the evidence on record, the learned Tribunal dismissed the claim petition. Hence, the present appeal.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES 6.
The learned counsel for the appellants/claimants contends that the learned Tribunal erred in dismissing the claim petition on the ground that the appellants/claimants have failed to prove that accident in question occurred due to rash and negligent driving of offending vehicle. He further contends that learned Tribunal has dismissed the claim petition on the ground that PW-5/eye-witness was not examined in criminal trial. Therefore, he prays that the present appeal be allowed.
7.
Per contra, learned counsel for respondent-Insurance Company, however, vehemently argues on the lines of the award dated 08.05.2010 and
-4submits that the claim petition has rightly been dismissed by the learned Tribunal. Therefore, he prays for dismissal of the appeal. 8.
I have heard learned counsel for the parties and perused the whole record of this case.
9.
The relevant portion of the award reads as under:- "Issue No.1.
10. Onus to prove this issue was on the petitioners. In the present case, FIR bearing no.420 dated 20.12.09 under sections 279/304A IPC Police Station Narnaund was recorded on the basis of statement given to the police by Yogesh Kumar son of the deceased. As per FIR, the deceased had started from village Mundhal for his village Bass Badshahpur on his motor cycle at 10.30 PM, while his son/complainant stayed at Mundhal. After half an hour, he also started from village Mundhal alongwith his friend Vikash son of Pawan. When they reached Madanheri Mor T Point Jind Bhiwani Road, he found that some unknown vehicle had hit the motor cycle of his father, who was lying dead on the road side after suffering head injury. In this manner, the registration number of any vehicle or name of driver was not mentioned in FIR. It was a hit and run case.
11. To establish that the accident was caused by the offending vehicle being driven by respondent no.1, the petitioners have examined PW3 Balbir and PW5 Sandeep, who are stated to be eye witnesses. PW3 Balbir deposed that on 19.12.09 at about 10.30 PM, he was returning from his fields after seeing the water in the canal. At about 10.30 PM, deceased Purshotam was seen coming from village Mundhal on his motor cycle when the truck bearing regn. No. HR:46A:4927 going from
-5Bass side to Mundhal hit the motor cycle of deceased. The truck was being driven by respondent no.1 rashly and negligently and in a zigzag manner. The driver of offending truck ran away from the spot after causing the accident while Purshotam Dass died at the spot. However, in his cross:examination, he admitted that when he was returning to his house, dead body of Purshotam Dass and motor cycle were seen on the road and no one was present there. This part of his statement shows that he had not seen the accident taking place or the offending vehicle. He also admitted that he never gave any information to the police regarding the accident and that deceased was not known to him. He also deposed that the son of the deceased came to him after two months of the accident and enquired from him about the accident.
Thereafter, he had given statement to the police. He also admitted that the police never came to him for enquiry or investigation. This part of his testimony shows that he never went to the police to inform regarding the accident and he had been contacted by the son of the deceased after two months of the accident. However, it is highly improbable that PW3 Balbir would not have approached the police in case he had witnessed the accident.
12. PW5 Sandeep is another alleged eye witness who deposed that on 19.12.09, he had gone to the house of Balbir R/o Mundhai (PW3) in order to realize the payment of oil sold to him but said Balbir was not available in the house. His wife disclosed that he had gone to canal side and thereafter, he proceeded towards Canal area. He deposed that a motor cycle was seen coming from Mundhal to Baas and truck was coming from the side of village Bass and going towards Mundhal.
-6He deposed that the truck driver took the truck towards wrong side of the road and struck against the motor cycle and sped away from the spot, which was bearing regn. No. HR:46A:4927. He deposed that motor cyclist had suffered head injury and he disclosed the matter to police officials at PP Mundhal, who accompanied him to the spot. The police officials also rang up the residence of the injured after obtaining telephone number from one of the persons present at the spot who was weeping. After 11⁄2 month, son of the deceased came to his petrol pump when he recognized him and on his enquiry, son of the deceased disclosed that till date they were not aware of the offending vehicle and its driver whereupon he told him about the accident.
13. In this manner, as per version of PW5 Sandeep, he had noted down the registration number of offending truck and he had allegedly seen the accident taking place and he had also informed the police, which visited the spot immediately after the accident. In his cross: examination, he deposed that he had disclosed the registration number of offending truck to the police of PP Mundhal. The aforesaid testimony of PW5 Sandeep shows that he had allegedly disclosed regn. Number of offending vehicle to the police immediately after the accident. If it was so, the police would have recorded regn. Number of the offending vehicle in the FIR itself, which was recorded at the instance of the son of the deceased, or at least police would have recorded the statement of PW5 Sandeep but his statement was also not recorded by the police. Even in the report under section 173 Cr.P.C Ex.P4 furnished by the police subsequently, PW5 Sandeep has not been cited as a prosecution witness. Both PW3 Balbir
-7and PW5 Sandeep have been introduced after two and 1 1⁄2 month of the occurrence respectively and the regn. Number of the offending vehicle has cropped up after such a long time.
14. PW5 has also deposed that he had not disclosed the registration number of the offending vehicle to the relatives of the deceased at the spot when he reached the place of occurrence alongwith the police. However, PW4 who is the son of the deceased stated that information regarding accident was given to him by PW5 and only thereafter he had lodged the FIR. In case, PW5 had disclosed the factum of accident to the son of the deceased, PW4 must have enquired about the registration number of the offending vehicle from PW5 in normal course as is expected from a prudent man. Both of them are thus putting forward a different version. In these circumstances, the only irresistible conclusion that can be drawn is that the offending vehicle has been falsely implicated and in fact it was a hit and run case. No doubt, respondent no.
1 has been challenged by the police and evidence led by the petitioners has gone unrebutted but merely because respondent no.1 has been prosecuted by the police in criminal case is no ground to hold that occurrence took place on account of his rash and negligent driving. In 2001(3) RCR 582 Ram Karan Vs. Zile Singh, it has been held that registration of FIR, framing of charge and even acquittal or conviction of driver are not binding on the Tribunal and the onus of proving negligence is always on the claimants and they have to discharge it. As to whether the accident took place due to rash and negligent driving of respondent no.
-8the tribunal. In the present case, the evidence led by the petitioner is not cogent and convincing. The presence of PW3 Balbir and PW5 Sandeep at the time of occurrence is doubtful and they have been subsequently introduced. In fact, it was a hit and run case. Even investigating officer has not been examined to prove as to how and on what basis the registration number of offending vehicle has cropped up after two months of the occurrence. In these circumstances, the evidence led by the claimants does not inspire confidence. No reliance can be placed upon the law laid down in 1993(2) PLR 109 Girdhari Lal Vs. Radhe Sham cited by learned counsel for the petitioners.
15. In view of the aforesaid discussion, I am of the considered opinion that the petitioners have miserable failed to prove the accident took place due to rash and negligent driving of respondent no.1 resulting in the death of Purshotam Dass. This issue is accordingly decided against the petitioners."
10.
A careful perusal of the aforesaid impugned award reveals that the learned Tribunal has fallen into manifest error in dismissing the claim petition filed by the appellant-claimants, both on facts and in law. 11.
It emerges from the record that PW-3, eye-witness to the occurrence, has deposed in clear and categorical terms with regard to the sequence of events culminating in the accident and specifically attributed rash and negligent driving to respondent No.1, the driver of the offending vehicle. Despite being subjected to searching cross-examination, nothing material could be elicited so as to discredit testimony on the core aspects of the occurrence. The learned Tribunal, however, discarded his evidence on
-9conjectural grounds, without demonstrating any inherent improbability or material contradiction going to the root of the matter. 12.
Similarly, PW-5 Sandeep, another eye-witness, has furnished a consistent and cogent account of the accident. His deposition lends substantial corroboration to the version put forth by PW-3, particularly with regard to the manner in which the offending vehicle was driven and the circumstances in which the accident occurred. His testimony also remained unshaken on material particulars. The approach of the learned Tribunal in brushing aside this evidence by branding the witnesses as "introduced later" is neither supported by the record nor sustainable in law, especially when no motive for false implication has been established. 13.
It is further borne out from the record that respondent No.1 stands chargesheeted in pursuance of the FIR registered in respect of the present accident. While it is trite that the registration of FIR and filing of the charge-sheet constitute relevant material, lending prima facie support to the case of negligence. The learned Tribunal failed to accord due weight to this circumstance while appreciating the evidence on record. 14.
Significantly, respondent No.1, the driver of the offending vehicle, chose not to step into the witness box to controvert the allegations levelled against him. An adverse inference, therefore, ought to have been drawn against him, particularly when the claimants/appellants had led affirmative evidence regarding negligence.
15.
It also deserves emphasis that proceedings before the Motor Accident Claims Tribunal are summary in nature. The standard of proof
-10required is that of preponderance of probabilities and not proof beyond reasonable doubt. The learned Tribunal, however, appears to have applied a standard akin to that required in criminal trials, thereby placing an unduly onerous burden upon the claimants/appellants. 16.
Viewed in the totality of circumstances, this Court is of the considered opinion that the appellant-claimants have successfully discharged the burden of proof by establishing, on the touchstone of preponderance of probabilities, that the accident in question occurred due to rash and negligent driving of respondent No.1. 17.
Consequently, the findings recorded by the learned Tribunal on the issue of negligence cannot be sustained and are hereby set aside. The appellant-claimants are held entitled to compensation in accordance with law.
SETTLED LAW ON COMPENSATION 18.
Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation and Another [(2009) 6 Supreme Court Cases 121], laid down the law on assessment of compensation and the relevant paras of the same are as under:- "30. 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
-112 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (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 non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
* * * * *
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
-12groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years. 19.
Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following aspects:- (A) Deduction of personal and living expenses to determine multiplicand;
(B) Selection of multiplier depending on age of deceased; (C) Age of deceased on basis for applying multiplier; (D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses, with escalation;
(E) Future prospects for all categories of persons and for different ages: with permanent job; self-employed or fixed salary.
The relevant portion of the judgment is reproduced as under:- "52. 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
-13children 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 fact-centric or quantum-centric.
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. We 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
-14future 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 self-employed (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."
20.
Hon'ble Supreme Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram &
-15Others [2018(18) SCC 130] after considering Sarla Verma (supra) and Pranay Sethi (Supra) has settled the law regarding consortium. Relevant paras of the same are reproduced as under:- "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 husband-wife 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.
-1622. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over 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.
21.
A perusal of the record reveals that the deceased, Purushotum Das, was aged about 50 years on the date of the accident, as reflected in the
-17post-mortem report (Ex. P-7). It further transpires from the evidence on record that the deceased was engaged as an LIC agent, and his monthly income has been asserted to be ₹30,000/-.
22.
In order to substantiate the income of the deceased, the claimants examined PW-1, Sanjeev Khanna, Senior Tax Assistant from the office of the Income Tax Officer, Hisar. PW-1 produced the original income tax returns of the deceased and proved on record the copies thereof for the assessment years 2006-2007 (Ex. P-1) and 2007-2008 (Ex. P-2). As per Ex. P-1, the deceased had declared a net income of ₹88,715/- after deduction of expenses, with a gross commission from LIC amounting to ₹1,05,291/-. Similarly, for the assessment year 2007-2008 (Ex. P-2), the deceased declared a net income of ₹80,517/- and a gross commission of ₹98,833/-. 23.
Further corroboration is forthcoming from the testimony of PW2, Krishna, widow of the deceased, who deposed that the deceased had been working as an LIC agent for the past 15-16 years, thereby establishing continuity and stability in his vocation.
24.
Significantly, the respondents did not lead any evidence to rebut or discredit the documentary and oral evidence adduced by the claimants with respect to the income of the deceased. There is thus no material on record to cast any doubt upon the authenticity of the income tax returns or the occupation of the deceased.
25.
However, it is equally well-settled that income reflected in income tax returns, particularly in cases involving commission-based earnings, may not always represent the entirety of actual earnings, and a
-18degree of estimation is permissible. Taking into consideration the nature of work of the deceased as an LIC agent, the income disclosed in the returns, the element of variability in commission-based earnings, and the surrounding circumstances, this Court deems it appropriate, in the interest of justice, to assess the monthly income of the deceased at ₹18,000/-. CONCLUSION 26.
In view of the law laid down by the Hon'ble Supreme Court in the above referred to judgments, the present appeal is allowed. The award dated 22.04.2011 %$ # &%" ' is modified accordingly. The appellants/claimants is entitled to the amount of compensation from the respondents, as per the calculations made here-under:- Sr. No.
Heads Compensation Awarded Monthly Income Rs.18,000/- Future Prospects @ 10% Rs.1,800/- Deduction towards personal expenditure 1/4 Rs.4,950/- (19,800 X 1/4) 4.
Total Income Rs.14,850/- (19,800-4,950) Multiplier Annual Dependency Rs.23,16,600/- (14,850 X 12 X 13) Loss of Estate Rs.15,000/- Funeral Expenses Rs.15,000/- Loss of Consortium Rs.2,00,000/- Spousal : 40,000 X 1 Filial : 40,000 X 4 Total Compensation Rs.25,46,600/-
-1927.
So far as the interest part is concerned, as held by Hon'ble Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176 and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5 Supreme Court Cases 107, the amount so calculated shall carry an interest @ 9% per annum from the date of filing of the claim petition, till the date of realization. 28.
Consequently, the respondent No.4-Insurance Company is directed to deposit the amount along with interest with the Tribunal within a period of two months from the date of receipt of copy of this judgment. The Tribunal is directed to disburse the same to the appellants/claimants in their bank accounts in equal ratio. The appellants/claimants are directed to furnish their bank account details to the Tribunal.
29.
Pending application(s), if any, stand disposed of. 16.03.2026 (SUDEEPTI SHARMA) Saahil/Ayub JUDGE Whether speaking/non-speaking : Speaking Whether reportable : Yes/No