Inderjit Kaur and Others vs Gurdeep Singh @ Deepa and Others

K. Kannan, J.—The appeal is for enhancement of compensation for death of a male aged 32 years. The accident had occurred when the car which the deceased was driving dashed against a stationary truck from the rear side. On 06.09.2000 at about 10 PM, the Tribunal found that the accident was the result of contributory negligence of the deceased himself and after assessing the compensation apportioned the liability between the deceased and the driver of the truck, who had parked the vehicle as 75:25 and grant a compensation on that basis.

The appeal is filed on the basis that the apportionment as made by the Tribunal was erroneous. In this case, AW 2 was one Gurdev Singh who stated that he and his friend Achharjit Singh were returning to their village Gidder Pindi and when they reached near the turning of village Patial on the G.T. Road and the insured''s truck was standing in the middle of the metal road without any parking lights on. There was no bricks or any branches around the said truck signalling the stationary truck. The driver Pritpal Singh and yet another person Gurdip Singh seated by his side died at the spot whereas as Manpreet Singh who was sitting at the rear seat survived with serious injuries. They would state that soon after the collision yet another car had arrived driven by one Paramvir Singh who was the brother of Pritpal Singh died in the accident.

The Tribunal doubted the veracity of his version from the fact that he spoke with reference to the name of every passenger in the car as well as the person that arrived subsequently as though he was very well acquainted with them. If that was the proximity that he had with them, it was surprising that he would not have reported such a gruesome accident to the police. The Tribunal also found it to be rather unusual conduct that he saw the driver of the truck descending from the vehicle soon after the collision but he did nothing to apprehend him at the spot. There had been no complaint to the police till 28.11.2000 that was more than two months after the occurrence. When he went to the police on 28.11.2000, he was supposed to have gathered information that the accident had already been reported by Paramvir Singh, the brother of Pritpal. He would explain the reason as to whey he went to the police to report about the accident two months later as by his perception, brother of the deceased Pritpal, Paramvir Singh had not given the correct details of the accident to the police and therefore, he wanted to give correct information. This evidence was also found artificial by the Tribunal, for Paramvir Singh who was the closest relative of the deceased could not have been negligent in making a false or incorrect report to the police. Paramvir Singh''s report itself was entered in the DDR where the statement was that the deceased could not have noticed the stationary truck on account of the fact that there were vehicles coming from the opposite directions with lights on and he could have therefore been blinded by the light and hence could not have noticed the stationary truck parked on the corner of the road which was out of order. The report contains a statement of the brother that the accident was an act of God and no one was responsible and no penal action was necessary. If in spite of this evidence and admission by the brother who had arrived immediately after the accident that the deceased''s brother himself was responsible for the accident and the Tribunal still cast a certain percentage of liability on the part of the truck driver for parking the truck, I cannot find any reason to defy from the said reasoning. I find the assessment of the Tribunal in casting the liability on the driver of the truck to be appropriate if at all on the charitable side and would find no reason to place any further additional burden on the driver of the truck.

The only point then would be the quantum of compensation that could be assessed. A postmortem certificate revealed that he was aged 32 years. It was in evidence that the deceased Pritpal Singh was running gas agency by name M/s. Amar Gas Agency and he was earning Rs. 20,000/- and also attending to agricultural operations to augment his income and his aggregate income would have been Rs. 50,000/- per month. The evidence brought on record, however, showed that gas agency stood in the name of his younger brother Paramvir Singh. The brother had given a power of attorney in favour of the deceased and the copy of the power of attorney had been filed as Ex. PB. As regards the holding of agricultural lands, the claimant had filed jamabandies P/1 to P/5. The holding of the deceased was spoken to also by Harbhajan Singh AW 4, who stated that he had been posted as Deputy Forest Officer and he was owning land measuring 109 kanals in village Kaluwahar and he owned some land jointly with his nephews Pritpal Singh and Paramvir Singh. His own joint holding had been sought to be proved through Ex. PE/2 and Ex. PE/4. He also stated that his wife was an IAS Officer and employed as Secretary Revenue with Punjab Government and she owned agricultural land measuring 29 kanals as set forth in Ex. PE/3. The land owned by him and his wife were, therefore, cultivated by Pritpal Singh on account of their own employment in Government service. He would state that he or his wife did not collect any charge or any lease or batai from Pritpal Singh. His wife had herself stated that her husband was having only 12 kanals of land. Even as regards the business income from gas agency, the income tax returns had been submitted only by Paramvir Singh as evidenced through Ex. P1. The Tribunal reasoned that the income tax assessment made on the brother of the deceased can be of no avail and even the power of attorney could not be relied, for it was obvious that the document had been fabricated only for the purpose of the case. I will not go as far as to state that the document was fabricated, for the power of attorney was a registered instrument having been registered on 07.01.2000 that is before the accident. It is far too unlikely that the accident could have been anticipated to create a document. I am prepared to believe that as a person assisting his brother in the same manner for running a gas agency with close relatives in government service he should have earned not less than Rs. 7500/-. He was driving his own car and it only showed that his own economic status. I would also allow for an income to be assessed Rs. 2500/- through agricultural operation which was surely possible of the manner in which the evidence was given by AW 4. The aggregate income with whatever little evidence possible will be taken as Rs. 10,000/- but I would not provide for any further prospect of increase. I will take the income at Rs. 10,000/-, make a provision for 1/4th deduction and apply a multiplier of 16 suitable to the age of the deceased. The loss of dependence shall be Rs. 14,40,000/-. I will provide additional amount of Rs. 1 lac for loss of consortium and another Rs. 1 lac for loss of love and affection for the two minor children. There shall be further amount of Rs. 5,000/- towards loss to estate and Rs. 20,000/- for funeral expenses. The total compensation payable shall be Rs. 16,65,000/-. Considering the fact that the deceased himself has contributed to the accident, which has been apportioned by the Tribunal as 75% to the deceased and 25% against the owner and driver of the truck for negligently parking the truck, I will allow for compensation of 25% of the same which will come to Rs. 4,16,250/-. The amount in excess over what has already been assessed by the Tribunal shall also attract interest @7.5% from the date of petition till the date of payment. The amount as assessed will be distributed amongst the wife and minor children in such a way that they take twice as much as each of the parents of the deceased.

The liability shall be on the insurer of the truck namely New India Assurance Company Limited, Jalandhar arrayed as 2nd respondent. No part of liability could be borne by either the owner of the car who was said to be the brother of the deceased himself nor the insurer, for I have found negligence on the part of deceased himself and unless he was a paid driver, who was required to be covered for risk under the Workmen''s Compensation Act, the death resulting from his negligence can leave no trail of action against the owner of the vehicle which he was driving nor its insurer. There shall be, therefore, no liability for claim against the insurer of the maruti car which the deceased was driving.

The award passed by the Tribunal stands modified and the appeal is allowed only to the above extent allowing for claim for compensation against the 2nd respondent.