Rajinder Kaur and Others vs Avtar Singh and Others

S.S. Sodhi, J.—The accident here was between a motor cycle and a jeep pick-up van. This happened at about 1 p.m. on August 4, 1976, just in front of the entrance to the premises of Delhi Automobiles, Industrial Area, Chandigarh. Virinder Pal Singh, who was driving the motor cycle, sustained serious injuries to which he later succumbed.

The Tribunal held this to be a case of contributory negligence with both Virinder Pal Singh deceased as also the driver of the van being partly to blame. The blame here apportioned to be 80 per cent that of the driver of the van and 20 per cent of the deceased. After making due allowance for this, a sum of Rs. 67,200/- was awarded as compensation to the claimants, they being the widow and two minor children of the deceased.

The question that now arises for consideration in appeal is with regard to the amount awarded as compensation to the claimants, the claim being for enhanced compensation.

In seeking enhanced compensation, Mr. Maharaj Bakhsh Singh, counsel for the claimants, in the first instance assailed the finding of the Tribunal imputing contributory negligence to the deceased.

There is no dispute in this case that Virinder Pal-Singh deceased was killed as a result of the injuries sustained by him when his motor cycle hit into the left rear portion of the van which was outside the gate of Delhi Automobiles and a part thereof was on the road on which the deceased was coming. It was the case of the claimants that the van was being reversed in a rash and negligent manner and the accident occurred on account thereof. The version of the Respondents, on the other hand, was that there was a truck and this motor cycle which were both coming parallel to each other on the road. When the deceased tried to overtake the truck from its left side it was then that it came and hit into the van. It was said that the van had been parked outside the gate of Delhi Automobiles waiting for traffic to clear to enter its premises.

There was indeed a truck there as would be clear from the photographs taken soon after the occurrence. This truck can be seen standing on the footpath on the right side of the road. It is to be noted, however, that there was no suggestion that any part of this truck ever hit the motor cycle or the deceased.

To depose to the manner in which the accident occurred, there is on record the testimony of PW 4 Jasbir Singh and PW 5 Daya Shankar Pandey besides that of RW 1 Avtar Singh, the driver of the van involved in the accident. It was the consistent testimony of both Jasbir Singh and Daya Shankar Pandey that the accident occurred when the van was being reversed at a fast speed. The truck was following the motor cycle and it got on the pavement on the right side when this accident suddenly occurred. In other words, it went on the pavement in an effort to avoid hitting into the deceased or the motor cycle after the accident. The statement of Jasbir Singh was recorded by the police soon after the occurrence, which is on record as exhibit PW 4/A. This is consistent with what he stated in court.

Turning now to the testimony of RW 1 Avtar Singh, he deposed that he had parked his van outside the gate of Delhi Automobiles as the gate was closed due to lunch break. It would be recalled that in the written statement, the plea taken was that he had stopped the van there on account of other vehicles standing outside the gate. Be that as it may, he admitted that this van was projecting on the road to the extent of 3 feet. The photographs, on the other hand, would show that this distance was certainly more than this. According to Avtar Singh, he had got off the van and was standing besides it when the accident occurred.

The evidence of these three witnesses considered in the totality of the circumstances of the case inevitably leads to the conclusion that this accident was caused entirely due to the negligence of RW 1 Avtar Singh with the deceased not in any manner being at fault. Negligence of Avtar Singh was admittedly there in having his van protruding on the road. The. deceased was coming on his correct side of the road at the time of the accident. If the van, had been stationary, the very instinct of self-preservation would undoubtedly have impelled Virinder Pal Singh to avoid the van. There was no suggestion that there was any traffic coming from the other side at that time. The version that he was trying to overtake the truck from its wrong side, on the face of it, is implausible as there is no reason to assume that if the deceased was indeed to overtake this track, he would hot have tried to do so from the correct side. As regards the truck, if it had any role to play in this accident, it could not have avoided hitting into the deceased. The fact that it did not do so bears eloquent testimony to its non-involvement in this accident. All things considered, therefore, this must be held to be a case where the entire-blame for the accident must fall upon Avtar Singh, the driver of the van. The finding of contributory negligence recorded by the Tribunal cannot therefore, be sustained.

Coming now to the question of compensation, the evidence on record shows that the deceased was only about 32 years of age at the time of his death and he died leaving behind his widow, who was a year younger and two minor children. The deceased used to work in two partnership firms with his father. He had 50 per cent share in one and 40 per cent in the other. Both, according to the widow of the deceased as also his father PW 9 Ranjit Singh, his income was Rs. 1,500/- per month. Rajinder Kaur deposed that he used to give her Rs. 1,200/- per month for household expenses. After the death of the deceased, Rajinder Kaur was made a partner in the partnership firms. When Ranjit Singh came into the witness-box a few days later, he produced on record a deed of dissolution to show that the widow had ceased to be a partner. The Tribunal rightly did not accept this as genuine. No books of account have been produced to show the extent to which the income of the partnership had fallen after the death of the deceased. The Tribunal, after taking into account the various circumstances in the light of the evidence on record, took the loss to the claimants to be at the rate of Rs. 6,000/- per annum. Counsel for the claimants was not able to point to any evidence on the basis of which the loss could be computed at any higher figure.

The compensation payable in such cases has to be assessed keeping in view the principles laid down by the Full Bench in Lachman Singh v. Gurmit Kaur 1979 ACJ 170 (P&H). In the light thereof, 16 would indeed be the appropriate multiplier here. Compensation on this basis would work out to Rs. 96,000/-.

The compensation payable to the claimants is accordingly enhanced to Rs. 96,000/-. The claimants shall be entitled to the amount awarded along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded. Out of the amount awarded, a sum of Rs. 20,000/- each shall be paid to the two minor claimants and the balance to the widow of the deceased. The amount payable to the minors shall be paid in such manner as the Tribunal may deem to be in their best interest. The liability of the Respondent insurance company shall be limited to Rs. 50,000/- while Respondent Nos. 1 and 2 shall be jointly and severally liable for the entire amount awarded.

This appeal is consequently hereby accepted with costs while the cross-objections are dismissed. Counsel''s fee Rs. 300/-.