Parminder Malik vs New India Assurance Company

R.L. Anand, J.—This is a claimants appeal and has been directed against the Award dated 8.9.1993, passed by the Court of Motor Accident Claims Tribunal, Chandigarh, who, dismissed the claim petition of the appellants u/s 166 of the Motor Vehicles Act, vide which, the claimants had made a prayer that a sum of Rs. 20,00,000/- may be awarded to them by way of compensation on account of the death of Shri Jasbir Singh son of Shri Sewak Singh.

The brief facts of the case are that Smt. Parminder Malik, widow of Shri Jasbir Singh, minor daughters Jasmin, aged 15 years and Amita aged 12 years, filed a claim petition u/s 166 of the Motor Vehicles Act against New India Assurance Company, Jaspal Singh and Tara Singh, driver and owner of the offending car No. CH-01-D-0967 and claimed compensation to the tune of rupees twenty lacs by way of compensation and it was averred by the claimants that Shri Jasbir Singh was doing a transport business and he was earning Rs. 13,000/- per month. On 1.11.1991, at about 10 P.M. Jasbir Singh was coming on his scooter bearing No. CHQ 9744 at Chandigarh-Ambala Road and when he reached near the workshop of PRTC in Industrial Area, Phase II, the offending car No. CH-01-D-0967 came from behind at a fast speed. The car was being driven in a rash and negligent manner. The driver of the car did not blow, the horn and hit the car against the scooter from behind and caused injuries to Jasbir Singh. After hitting the scooter, the car hit the cyclist who was going ahead ofscooter. Jasbir Singh sustained injuries. He was removed to the hospital in a police vehicle and he died on 3.11.1991. The claimants alleged that this accident had taken place due to the rash and negligent driving of driver of the car.

Notice of the claim petition was given to the respon-denls. Respondent No. 1 was proceeded exparte. Respondents No. 2 and 3 filed a joint written statement. They admitted the accident in question and it was pleaded that the accident took place when the car was likely to over lake the scooterist all of a sudden. Scooterist lost the balance and came in front of the car and suffered injuries. The respondents denied that accident was caused due to the rash and negligent driving of the driver of the car.

From the pleadings of the parties the learned Tribunal framed the following issues :-

Whether the accident in question look place due to rash and negligent driving of respondent No. 2 driver of Car No. CH-01-D-0967 ?OPP

If issue No. 1 is proved to what amount of compensation, the claimants were entitled and from whom ? OPR

Relief.

After recording the statement of the three witnesses, respondent No. 1, moved an application for setting aside the ex parte proceedings. The application was allowed and in this manner, respondent No. 1 was allowed to join the proceedings, it filed the written statement and denied all the averments of the claimants except for admission of the policy of the car. Insurance Company also look the stand that no accident took place as the answering respondent never received information about the alleged accident. Further it was pleaded by the Insurance Company that the driver of the car did not have the valid driving licence.

Additional issue was also framed in this case which was treated as issue No. 1-A. This issue was to the following effect :-

Whether any accident took place due to the rash and negligent driving of respondent No. 2 ? OPP

The parties were given the opportunities to lead evidence and on the conclusion of the proceedings me Tribunal decided issues No. 1 and 1-A against the claimants and in favour of the respondents. Issue No. 2 was also decided against the claimants and finally the claim petition was dismissed.

Aggrieved by the impugned award, the present appeal.

I have heard Mrs. Naveen Malik, learned counsel, appearing on behalf of the appellants and with her assistance have gone through the record of the case and in my opinion, the Tribunal was not right in rejecting the claim petilion.

First of all, I would like to take up issues No. 1 and 1-A. The Tribunal has decided these issues against the claimants for the reasons given in para No. 15 of the Award, which are as under :-

"15. Having heard the submissions of the learned counsel for the parties, this Court is of the view that the claimant has miserably failed to prove the accident in question for the following reasons :-

(a) The testimony of AW1 Satwinder Singh is not to be taken into account as he has nowhere disclosed the registration number of the Maruti Car and its driver, (b) This witness is alleged to have followed the deceased at 7.30 P.M. near Tribune Chowk whereas the accident took place at 10 P.M. The testimony of this witness does not inspire confidence in view of the observations, made in Haryana Milk Foods'' case (supra) where the evidenliary value of the eye witness and a chance witness has been described. This witness has admitted having known the deceased on the date of accident. He neither informed his family members nor accompanied the injured to the hospital and report the mailer to the police. Thus, it is unsafe to rely on the testimony of this witness (c) The claimant has further failed to prove on the record that Car No. CH-01-D-0967 was owned by respondent No. 3 Tara Singh at the time of accident and the same was being driven by respondent No. 2 at the relevant time (d) Claimant further failed to prove the rash and negligent driving of the Maruti Car. If the claimant had learnt about the registration number of the car and name its driver, the criminal case investigated by Bhajan Singh, Sub Inspector would not have ended as untraced. There was every likelihood of the claimant to have approached the police for the criminal proceedings to be initiated against the driver of the offending car (e) The maxim of res ipsa loquitor is not attracted to the fad of the present case as none of the witness on behalf of the claimant has named Jaspal Singh as driver of the Maruti Car having caused this accident".

In order to examine whether the findings of the Tribunal are correct or not, I will have to again assess the evidence. First of all, I would like to refer to the written statement of respondents No. 2 and 3. It may also be mentioned that the written statement was neither signed nor verified by the driver or by the owner. It is only signed by the lawyer. As per the requirement of the law, the written statement ought to have been signed and verified by the client. Even if it is assumed for the sake of argument that a lawyer can file the written statement on the instructions of his client, still, this document is very material for the adjudication of this issue. It is the specific case of the claimants that the accident had taken place due to rash and negligent act of respondent No. 2. Let us see the stand of respondents No. 2 and 3 in the written statement. Para No. 8 of the written statement dated 9.10.1992 is very material. It runs as follows :-

"The driver of the scooter No. CHQ-9774 was going ahead of the car on the relevant date and time. The car was approaching the round about which is known as Tribune Chowk. The road on which the car was going is having enough width and usual speed thereon can be 50 to 60 KMPH. The scooter was going at a speed of about 30 to 35 KMHP and on its correct side. However, when the car was likely to take over the scooterist it all of a sudden lost balance and came in front of the car and as such hit by the car and the scooterist suffered some injuries because of such an accident. It is clear from these facts that at least car driver respondent was not at all having any fault".

Thus, from this stand of respondents No. 2 and 3, conveyed to the Tribunal through the lawyer, it clearly spells out that the accident had taken place on account of the negligence of the driver of the car. The width of the road was quite enough. When a driver of a vehicle was to over-take the other vehicle on a road which has enough width, he is supposed to overtake the other vehicle by giving a sufficient margin so that both the vehicles may not come in contact with each other. It is also admitted case of the respondents No. 2 and 3 that at that time the speed of the scooter was hardly 30 to 35 KMPH. There was hardly any occasion for losing the balance of the scooter in such a situation. Rather an irresistible conclusion is that the driver of the car lost the control and it dashed it against the scooter.

Now, let us examine the statements of the witnesses. Shri Satwinder Singh appeared as PW-1. According to this witness, he knew Jasbir Singh deceased. On the date of accident he was coming from village Hallo Majra and was proceedings towards sec-tor-43. At about 7.30 P.M. Jasbir Singh was going ahead of him on a scooter. When he reached near the Tribune Chowk, he saw that a Maruti car was following him and Jasbir Singh, the driver of the car hit the scooter from behind and due to the impact Jasbir Singh fell on the road. It is further in the statement of Satwinder Singh that the scooter was going on the correct side of the road. Also it is stated by this witness that Maruti Car was being driven at a speed of 50 to 60 KMPH. Thus, from the statement of Satwinder Singh, it stands abundantly proved that the accident took place in a different manner when the driver of the car hit the scooter from behind and this act itself is an act of negligence. The statement of this witness has been disbelieved for uncogent reasons. The Tribunal ought to have seen that this witness is not related in any manner with the family of the deceased. If the witness has fumbled on some aspects such as that he did not lodge the report, it is no ground to reject his testimony. This witness was not related to the deceased and we have seen in experience that people did witness the accident but at that time they do not bother to accompany the injured to the hospital or they do not go to the police-station for lodging the report. So much so they do not go even to the house of the injured to inform their relations about the accident. In my opinion hardly any evidence was required in this case to prove the negligence aspect of the case when the negligence is discernible from the defence of respondents No. 2 and 3 but unfortunately for the claimants there is a statement of Satwinder Singh which has been disbelieved by the Tribunal on unconvincing reasons. Therefore, I reverse the finding of the Tribunal on issues No. 1 and 1-A and hold that the accident had taken place due to the negligence of respondent No. 2.

14, The case set up by the claimants in the trial Court was that deceased was doing the business of a transporter. Me was earning Rs. 13,000/-per month. He was aged 41 years. On account of the demise of Shri Jasbir Singh, the transport business had to be closed down and as such the claimants suffered loss in this behalf in addition to the loss of monthly regular income. Smt. Parminder Kaur, widow of the deceased, appeared as PW-2. She staled that her husband died in a vehicular accident. He was aged 41 years of age at the time of his death. He was healthy. He was running the transport business under the name of Eagle Transport Company. Her husband had five vehicles and was earning to Rs. 15 to 16 thousands per month and the deceased used to pay Rs. 12,000/- for running the household affairs. It has also come in her statement that after the death of her husband, the trucks had been sold its she was unable to carry on the business of the transport. Her husband was a Income Tax assessee. She produced Income Tax statement Ex. P.2. It has also come in the statement of the lady that her husband used to file Income Tax Return, through Income Tax adviser/consultant. In cross-examination, she stated that their manager Shri P.K. Tripathi used to maintain the written account in respect of the business. She stated that she sold the truck of her husband bearing Registration No. CHW 6944 to Mr. Somi. It was 87 model and was sold for a sum of rupees two lacs. "I he said truck was purchased after raising a loan from Canara Bank and the loan was cleared at the time of the sale. The second truck bearing Registration CH-01-8344 was sold to Mr. Prem Kumar for a sum of Rs. 1,75,000/-. The model of the truck was of 1990. This truck was also purchased with the assistance of a financier. Further it has come in the statement of the lady that she is in possession of two trucks No. CH-01-8544 and CH-01-9244, She does not know the number of the fifth truck but it was sold for a sum of Rs. 70,000/-. Also it has been stated by the lady that she is earning Rs. 3,700/- as salary per month. Thus, it is evident that there were five truck in M/s Eagle Transport Company. Three, were sold by lady and two trucks were kept by her. PW-3 Shri P.K. Tripathi, deposed that Jasbir Singh deceased used to work as a transporter. He further stated that he used to maintain the account of the transporter. He used to pay the salaries to the employees. Further, it has come in the statement of Shri Tripathi that there were five trucks in the company at the time of the death of Shri Jasbir Singh and after his death, three trucks were sold. Also it has come in the statement of this witness that deceased was earning Rs. 15,000/- per month alter deducting all the expenses. This witness was getting a salary of Rs. 1200/- per month. PW-4 is Shri Kishorc Chander. He deposed that Shri Surjit Singh Rikhi and Chaman Lal Advocates are practising on the income tax side. He proved certificate dated 20.10.1992 issued bv Shri Chaman Lal Sharma. This certificate shows that the declared income of Shri Jasbir Singh for the year 1990-91 was Rs. 48,000/-, and tax paid was Rs. 5636/-; declared income of 1991-92 was Rs. 75,000/- and the tax paid was Rs. 9156/- and the declared income for 1992-93 i.e. 1.4.1991 to 3.11.1991, was Rs. 56,000/- and the tax paid was Rs. 7060/-. The Tribunal has rejected the entire claim of the claimants for the reasons given in paras No. 16 to 22 of the award which are quoted as follows :-

"16. Now adverting to the question of quantum of compensation to be awarded to the claimants, claimant Parminder Kaur appeared as PW2 and testified that her deceased husband Jasbir Singh was running a transport business under the name and style of Eagle Transport Co. and was earning Rs. 15,000/- to 16,000/- per month and he was contributing Rs. 12,000/- per month. She produced the photo copy of the income tax statement Ex.P.2 issued by the Advocate Shri C.L. Sharma, the details of which are as under :-

Asstt. Year

Income Declared

Tax paid

1990-91

Rs. 48,000/-

Rs. 5636/-

(1.4.89 to 31.3.90) 1991-92

Rs. 75,000/-

Rs. 9156/-

(1.4.90 to 31.3.91) 1992-93

Rs. 56,000/-

Rs. 7060/-

(1.4.91 to 3.11.91) upto the date of death.

She produced the Insurance Policies of vehicles (Ex.P.3 and Ex.P.4) of the trucks owned by the deceased Jasbir Singh.

In the cross-examination this witness stated that she has already sold three trucks of her late husband and kept two trucks only from where she is getting an income of Rs. 8,000/-. PW3 Pardeep Kumar Tripathi was employed as Manager in Eagle Transport run by Jasbir Singh. This witness used to maintain the account of Transport Company. She produced the photostat copy of the salary statement of the employees of Eagle Transport. PW4 Kishore Chander was examined to prove the original certificate of Income tax returns (Ex.P.2) alleged to have been filed by Parminder Malik before the Income Tax Authority by her counsel.

It is pertinent to mention here that no witness from the Income Tax Authority has been summoned to prove the factum of filing of return and income tax paid by the applicant except for the certificate issued by the counsel. It is further observed that these returns were filed after the filing of the claim petition with a view of secure compensation, therefore, they cannot form the basis of assessing the compensation.

In rebuttal Yashpal Sharma RW2 brought the ownership record of vehicles No. CHW 6944. CHO-1-8967 and CHO-1344. According to him vehicle No. CHW 6944 was owned by Jasbir Singh up to 29.1.1992 and vehicle No. CH-01-0344 was owned by Bimla Kalra wife of Shri Harminder Singh, resident of 12-11-15. PGI Colony, Sector 12, Chandigarh and this vehicle was transferred on 20.11.1989 in favour of Shri Rajinder Vemia son of Shri P.L. Verma, R/O 682/1, Sector 41. According to this witness vehicle No. CHW 6944 is still in the nameof Jasbir Singh, but Smt. Parminder Kaur has been authorised to sell the same by the Estate Officer. The vehicle No. CHO-01-0976 is owned by Gurbachan Singh of Sector-28-A.

With the aforesaid oral and documentary evidence on the record, learned counsel for the claimant submitted that Jasbir Singh deceased was having a flourishing Transport business from where, he was earning Rs. 16,000/- per month and due to his untimely death, the claimants have suffered a great financial loss, hence, they are entitled to the compensation as claimed in the petition.

On the other hand, it was argued on behalf of the Insurance Company that it has come in the testimony of PW2 Parminder Kaur that she owns two trucks from where, she is getting an income of Rs. 8,000/- per month. Assessment certificates Ex.P.2 and Ex. PW4/1, the details of which if taken into consideration, it shows that there is no decrease in the income of the claimant even after the death of Jasbir Singh. For the assessment year 1990-91, the income of deceased is shown as Rs. 48,000/- whereas it is stated by the claimant that her husband was earning Rs. 16,000/- per month which is falsified by this document. Similarly, his income for the year 1991-92 show that the deceased has an income of Rs. 75,000/- which does not tally with the testimony of the claimant when she testified that her husband was contributing Rs. 12,000/- per month for household expenses, the income further shown for the year 1992-93 was Rs. 56,000/- which further suggest that there is no decrease in the income. These returns are not proved in accordance with law as no official of Income Tax Authority has been examined, hence, there are only paper transactions and not to be acted upon for the purpose of assessing the income of the deceased. No other documentary evidence has been placed on the record to prove the exact income of the deceased.

Learned counsel submitted that even if the case may be taken from angle, it would show that there is no loss to the estate of the deceased and claimants have filed this false claim in order to grab the compensation.

Having heard the submissions of the learned counsel for the parties, this Court is of the view that the claimants are not entitled to any compensation in view of my findings on issues No. 1 and 1A, where I have held that the claimants have miserably failed to prove the accident in question. Hence, issue No. 2 is accordingly decided against the claimants, 15. In my opinion, the Tribunal has viewed this case from a wrong angle. It is proved on the record that in M/s Eagle Transport Company there were five trucks. Shri Jasbir Singh was supervising that business along with Mr. Tripathi. After the death of Shri Jasbir Singh the business has suffered. Three trucks were sold by the widow and even if it is assumed for the sake of argument that widow had two trucks with her after the death of her husband, still, the income from the business could not be the same. The lady has fairly admitted that she is earning Rs. 8,000/- per month by way of income from the two trucks. Thus, there is a financial loss to the family with the death of Shri Jasbir Singh. Had Jasbir Singh been alive, the family would have got the earning of the business. It is the case of the appellant that the deceased was contributing Rs. 10,000/- to Rs., 12,000/- per month towards household expenses. After the death of Jasbir Singh, the loss is Rs. 4,000/-per month. Otherwise for a transporter to earn Rs. 12,000/- per month with five trucks is not an excessive amount. Thus, there is loss of Rs. 4,000/- per month to the family. After deducting the personal expenditure of the deceased, the net loss to the family comes to Rs. 36,000/- per year and in this case the multiplier of 15 can be safely applied. The Tribunal ought to have awarded Rs. 5,40,000/- to the claimants by way of compensation. I do not agree with the observation of the learned Tribunal that there was no loss to the estate of the deceased and that the claimants have filed the present false claim petition. Loss to the estate is very much there when the business of the deceased suffered. From that very business the family of the deceased was surviving.

Thus, I reverse the findings of the Tribunal on issue No. 2 and decide this issue in part in favour of the claimants by helding that the claimants are entitled to compensation amounting to Rs. 5,40,000/- besides interest at the rate of 12% per annum from the date of the filing of the petition till payment. This amount shall be paid by respondent No. 1 to 3 jointly and severally as the offending vehicle was insured with New India Assurance Co i.e. respondent No. 1.

In view of my findings on issues No. 1, 1-A and 2, this appeal is hereby allowed by setting aside the impugned award and this Court grants compensation of Rs. 5,40,000/- to the claimants along with interest at the rate of 12% per annum from the date of filing of the claim petition i.e. 23.3.1992 till the entire payment is made. The payment shall be made by respondents No. 1 to 3 jointly and severally, within two months. There shall be no order as to costs. The amount of compensation shall be distributed in equal shares among the claimants as by this time claimants No. 2 and 3 must have become majors.

Appeal allowed.