Gargi and Others vs Balbir Singh and Others

Ajay Tewari, J.—Both these appeals bearing FAO Nos. 536 and 1240 of 1999 have been filed against the dismissal of the claim petition arising out of the common award dated 31.10.1998 passed by the Motor Accidents Claims Tribunal, Sonipat and are being disposed of by a common order. For the sake of convenience, facts are being taken from FAO No. 536 of 1999.

The brief facts of this case are that on 18.06.1995 Raj Singh (deceased) husband of claimant alongwith Sukhbir Singh (deceased) and others were going from Karnal to Delhi in a Maruti Car No.DL-8CA-1606 and when they reached one or two miles beyond Murthal their car struck against a stationery Swaraj Mazda vehicle No. HNW-5594 which was parked in the middle of the road being out of order. The accident took place at about 6 A.M. on G.T. Road due to the negligent parking of the stationery vehicle by the driver of vehicle No. HNW-5594 Balbir Singh respondent No. 1 causing multiple injuries to the occupier of the car No. DL-8CA-1606 and caused the death of Raj Singh and Sukhbir Singh.

The Tribunal held the fact that since one eye witness Master Giri, was not examined, an adverse inference could be taken against the appellants. With regard to the eye-witness PW3 Naresh Kumar the Tribunal held that his testimony did not show that there was any negligence on the part of the truck owner. The Tribunal further held that it was neither pleaded as to who was the driver of the car nor was the owner/driver/insurer of the car impleaded as parties. Consequently there was no negligence of the truck owner of the Swaraj Mazda No. HNW-5594 and the claim petition was dismissed.

Learned counsel for the appellants has argued that Tribunal has taken an unduly pedantic view of the testimony. In the first place, he has drawn the attention of the Court to the testimony of PW3 where he had stated that Master Giri had also died. Learned counsel for the appellants has argued that in this situation the adverse inference drawn against the appellants was completely misplaced. The second argument is that PW3 Naresh Kumar firstly deposed that the truck was wrongly parked and then stated that the truck was parked on the G.T. Road and the traffic was smooth at that time. It is on this basis of this assertion that the conjectural finding has been given by the Tribunal that sometimes even if the vehicle is parked wrongly it may not impede the traffic especially at the time when the accident took place i.e. at 6.00 A.M.

Learned counsel for the respondents have defended the order of the Tribunal and have pointed out that the FIR in question was lodged against the driver of the Maruti car. They have also drawn the attention of the Court to the admission made by PW3 that the accident took place in full day light and even if the truck was not parked correctly, it was for the driver to have driven the car carefully and applied the brake.

In my opinion, the arguments of both the counsel are too extreme. No doubt it was day light and therefore the driver of the car cannot be held to be blameless, and equally if the truck was not rightly parked (as asserted by PW3-Naresh Kumar) even though it may have been day light he cannot avoid his share of responsibility. In these circumstances, I hold that the accident took place due to the composite negligence and as far as Sukhbir Singh''s case it is a case of contributory negligence.

Learned counsel for the appellants has further argued that the finding on issue No. 2 is also completely illegal. The Tribunal has held that neither the FIR nor any medical report has been placed on record. As per the learned counsel for the appellants FIR is Ex.P2 and the post mortem report of Sukhbir Singh is Ex.P1. Therefore, the Tribunal has erred in stating that there is no material on the record. Learned counsel for the respondents are not in a position to deny this argument.

The third issue is regarding the income of the deceased. There is no material on the record even though it is claimed that both of them were stated to be drivers. In the circumstances, they would have to be treated as casual labourers. In the year 1995, salary of casual labourer in Haryana was Rs. 25/- per day. In these circumstances, I would take the income of both the deceased as Rs. 9125/- per annum. Both of them are 25 years of age. Raj Singh has left behind only his wife and Sukhbir Singh has left behind his wife and a minor daughter. Thus I would take the dependency in the case of Raj Singh as 1/2 and in the case of Sukhbir Singh as 2/3rd.

Learned counsel for the appellants has further argued that as per the law laid down in Rajesh and Others Vs. Rajbir Singh and Others, , some amount has to be awarded on account of loss of consortium. He has further argued that 50% has to be added to the income on account of future prospects.

Learned counsel for the appellants has further argued that under other conventional heads also some amount has to be awarded and has relied upon the decision of the Hon''ble Supreme Court in Vimal Kanwar and Others Vs. Kishore Dan and Others, .

Learned counsel for the respondents have argued that the Hon''ble Supreme Court in Rajesh and others'' case (supra) granted a total amount of Rs. 1 lac towards loss of consortium to the widow and Rs. 1 lac to three minor children for loss of care and guidance.

Learned counsel for the appellants, on the other hand, has contended that in Vimal Kanwar and others'' case (supra), the Hon''ble Supreme Court awarded a sum of Rs. 1 lac to the widow and a sum of Rs. 2 lac to the minor girl on account of loss of love and affection, and another sum of Rs. 1 lac towards loss of consortium to the widow.

Learned counsel for the appellants has further argued that multiplier of 18 should be applied in the present cases and has relied upon Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

Keeping in view the entire conspectus of facts, I grant Rs. 50,000/- each on account of loss of consortium and Rs. 50,000/- each on account of loss of love and affection to the claimant-Smt. Gargi and to the claimant-Smt. Geeta Devi. I further grant Rs. 1 lac on account of loss of love and affection to the claimant-Babli (daughter). I also add future prospects in the income with the addition of 50% in each case in view of the observations made by this Court in F.A.O. No. 2990 of 2011, titled as Manjit Kaur and others vs. Ramesh Kumar and others, decided on 08.01.2014. I further hold that multiplier of 18 should be applied in each case. I further grant Rs. 20,000/- each to both sets of the claimants for funeral and last rites.

As regards the liability, since I have held it to be a case of composite and contributory negligence and the owner and insurer of the maruti car has not been impleaded as a party, the respondent No. 3 who has otherwise admitted the existence of insurance policy would be liable to pay half compensation. The amount of compensation in each case shall be paid along with interest @ 8% p.a. from the date of filing of the claim petition till the date of realization. Since even the minor daughter must have now become major, I do not deem it appropriate to put any restriction on the use of money.

Both the appeals are allowed in the above terms.

Since the main case has been decided, the pending civil miscellaneous application, if any, also stands disposed of.