Saroj Dhir v. Vijay Kumar Sharma

H.S Bedi, J. (Oral):— By this judgment I propose to dispose of FAO Nos. 1435 and 1436 of 1996 as these arise out of the same award of the Motor Accident Claims Tribunal, Chandigarh.

2. On 25th March, 1992 Pawan Kumar Dhir, since deceased, and Sat Pal injured had come to Chandigarh to attend some meeting at the Congress Bhawan, Sector 15, Chandigarh, in a private bus. These two alighted from the but at 12.40 p.m just opposite the Congress Bhawan in front of the Government College for Boys, Sector 11, Chandigarh, and started crossing the road towards the Congress Bhawan. They had just taken a step towards the Congress Bhawan from the road divider, when a scooter bearing No. HR 29A-0011 being driven at a very high speed by Harinder Singh respondent No. 2 came from the side of the petrol pump Sector 15, Chandigarh and struck against the legs of Pawan Kumar Dhir and Sat Pal. Both these persons fell down on the road and were thereafter rushed to the PGI where they remained under treatment from 25th March, 1992 to 3rd April, 1992. Pawan Kumar Dhir was thereafter removed to Kapurthala but he died on 6th April, 1992 as consequence of the injuries that he had sustained. Two claim petitions were thereafter filed - one by the heirs of Pawan Kumar Dhir i.e his widow, his minor children and the parents who all claimed to be dependent on him, whereas the second claim petition was filed by Sat Pal for the injuries that he had received on his legs.

3. On notice of the petition respondent Nos. 1 and 2 were proceeded against ex parte whereas the claim was contested by the Insurance Company who put in appearance.

4. On the basis of the plea raised, the following issues were framed in the claim petition filed on account of death of Pawan Kumar Dhir by the Tribunal:

1. Whether the deceased sustained the injuries because of the rash and negligent driving of vehicle No. HR-29A-0011 by respondent driver as alleged? OPP.

2. To what amount of compensation, if any, the claimants were entitled and from whom? OPP

3. Whether Harinder Singh driver was holding a valid driving licence at the time of the accident and if not what effect? OPR

4. Relief.

5. The following issues were framed in the claim petition filed on account of the injuries suffered by Sat Pal:

1. Whether the injured sustained the injuries because of the rash and negligent driving of vehicle No. HR-29A-0011 by respondent driver as alleged? OPP

2. To what amount of compensation, if any, the claimant is entitled and from whom? OPP.

3. Whether Harinder Singh driver was holding a valid driving licence at the time of accident? OPR.

4. Relief.

6. The Tribunal after recording on a consideration of the evidence came to the conclusion that the injuries had been suffered because of the rash and negligent driving of the scooter by its driver and as a consequence of which, he had caused injuries to Pawan Kumar Dhir and to Sat Pal. The Tribunal also concluded that the income of Pawan Kumar Dhir could be assumed to be Rs. 2500/- per month and after deducting a sum of ⅓rd as his personal expenses would leave the monthly dependency of the claimants at Rs. 1600/- per month, making out Rs. 19,200/- per year and as he was 35 years of age when he died, a multiplier of 16 was to be utilized, thus making a total compensation of Rs. 3,07,200/-. This compensation was also directed to be apportioned between the various claimants. The Tribunal also found that Satpal injured was entitled to Rs. 14,400/- on account of loss of six months' wages and Rs. 1800/- on account of the expenses spent on his treatment, besides an amount of Rs. 3000/- for the conveyance that he had used, thus making total compensation of Rs. 19,200/- along with interest at the rate of 12 per cent per annum from the date of petition till realisation. Aggrieved thereby the claimants have filed two separate appeals which as already mentioned, are being disposed of by this judgment.

7. Mr. L.M Suri, the learned counsel appearing for the claimants, has urged that the Tribunal was wrong in determining the monthly dependency of the claimants in case of Pawan Kumar Dhir at Rs. 2400/- as it was borne out from the evidence that his income was in fact much higher. He has in this connection referred to the statements of the widow Saroj Dhir (PW1), Sudesh Kumar (PW6) Accountant of Messrs Tirath Mal Devinder Nath, Commission Agents, Kapurthala and Radhey Sham (PW7) an accountant of Messrs Mohinder Singh and Company, Commission Agents, Kapurthala. I have considered the argument of the learned counsel and find that some addition is called for. It has come in the evidence of the latter two witnesses that the deceased used to earn Rs. 800/- per month from the first organisation and Rs. 3000/- for three months' work from Messrs Mohinder Singh and Company, thus making a total of about Rs. 21,600/- annually. It has also come in evidence that in addition to the work of tulai that the deceased was doing in the course of the season, he was employed in the repair of weighing machines. It is, therefore, apparently well known that he was earing about 1200 rupees per month on account of that as well. I am of the view that the total income of the deceased could be rounded up to Rs. 35,000/- per year.

8. Mr. Suri has also argued that the method of calculation adopted by the Tribunal in determining the amount that the deceased had spent on himself was contrary to the method laid down by the Supreme Court in U.P State Road Transport Corporation v. Trilok Chandra, 1996 (2) PLR 537 : 1996 (2) RRR 718 (SC). He has pointed out that the Hon'ble Supreme Court has now laid down as a matter of law that each claimant was to be tabulated as a separate unit, making two units for a major, one for a minor and as in the present case the deceased and his widow constituted two units each making four and the parents making another four and leaving one unit each for the four children the total units in the case would be 12 and if a sum of Rs. 35,000/- (say Rs. 36,000/-) was divided by 12, the total amount that he would spend on himself would be (36,000/12) making Rs. 6000/- per year as the deceased would constitute two units. In additional to the amount of Rs. 6000/- as worked out for two units, a sum of Rs. 2000/- towards this personal expenses is also liable to be deducted. Applying this principle it would be apparent that the amount left to the LRs would be Rs. 28,000/- per year and applying the multiplier of 16 as has been adopted in the present case the total amount of compensation would come to Rs. 4,48,000/-.

9. Mr. Ravinder Arora's argument that the multiplier was on the higher side as the deceased was 40 yeas of age and not 35, to my mind is without merit as the Supreme Court itself has said that the multiplier of 16 normally be used in such cases.

10. Mr. Suri has also urged that a look at Exhibits PW 3/1 to PW 4/16 produced by PW 3 Surinder Nath shows that Rs. 7000/- spent on the medical expenses by the claimants on the deceased before his death were also liable to be paid in addition to some amount towards loss of the estate and for consortium to the wife and this amount too should be added to the total compensation. This stand of the learned counsel appears to be just in the light of the law laid down by the apex Court and this Court. I am, therefore, of the opinion that in addition to the compensation already awarded for the death of Pawan Kumar Dhir, Rs. 7000/- should be added on his medical expenses and another sum of Rs. 10,000/- by way of loss to the estate and for the consortium to the widow, making a total of Rs. 4,65,000/-

11. Mr. Suri has then argued the matter with regard to the injuries suffered by Sat Pal, the claimant in the other appeal, and it was contended that a sum of Rs. 19,200/- granted to him was wholly inadequate. He has urged that no amount has been given for pain and suffering although the clamant has suffered fracture in both the legs. I have heard the learned counsel on this aspect and find that the amount given to the claimant-Satpal is absolutely unrealistic and is not adequate compensation for the injuries suffered by him. Dr. Ashwani Mohinder PW 8 deposed that both the legs were fractured and were put under plaster in the PGI and though he had suffered no permanent disability yet he had remained confined to bed for a period of one year and accordingly remained unemployed during this period. It is, therefore, apparent that the claimant suffered very serious injuries which incapacitated him for a year. I am, therefore, of the opinion that a sum of Rs. 20,000/- ought to be given to him on account of pain and suffering. I am also further of the opinion that from the documents Exhibits PW3/1 to Exhibit PW4/16 that a total sum of Rs. 3500/- incurred on account of medical treatment is also due to Sat Pal. The compensation due to him therefore increased from Rs. 19,200/- to Rs. 41,000/-. The amounts awarded to both sets of claimants will be paid along with interest as found by the Tribunal.

12. Mr. Suri has then argued that the finding recorded by the Tribunal that as it had not been proved that Harinder Singh respondent No. 2 was either holding a driving licence or had ever held a driving licence which absolved the Insurance Company (respondent No. 3) from its liability to pay, was erroneous and based on a misreading of law on the subject. He has relied on a Division Bench decision of this Court reported in The Oriental Insurance Company Ltd. v. Smt. Paro, 1994 (3) PLR 256 which overruled the single Bench decision of this Court in New India Assurance Co. Ltd. v. Surinder Pal, 1990 ACJ 940 and has urged that the view propounded by the single Judge that the onus to produce or prove the driving licence lay on the driver of the offending vehicle or the claimants, had been overruled by the Division Bench wherein it has been positively held that if the Insurance Company challenged its liability to pay on the ground that the driver was not holding a licence or that he had never held a licence, the onus of proving the same lay on the Insurance Company and if that onus was not discharged the inference that followed was that the driver of the offending vehicle was, in fact, holding a valid driving licence. He has also urged that the owner of the vehicle Vijay Kumar Sharma had been summoned as witness by the respondent, but his statement was not recorded and Mr. Verinder Issar, the counsel for the owner, had given a statement on 21st March, 1995 that he did not wish to produce any evidence on behalf of the owner and that in any case the driver had left India and had gone abroad. On this Mr. Ravinder Arora, Advocate for the Insurance Company, had also made a statement that since the owner had not appeared as his own witness there was no necessity for summoning him as witness. The inference that Mr. Suri has sought to draw from these facts is that though it was open to the Insurance Company to secure the presence of the owner as a witness yet he was specifically given up, with the result that no evidence had come on record to the effect that the driver was not holding a licence.

13. Mr. Ravinder Arora has however argued that the Insurance Company had made strenuous efforts to trace the evidence with regard to the licence of the driver and had even summoned the record in the criminal case but no such licence had been found therein and as such the onus that lay on Insurance Company stood discharged. I am of the opinion that the case file in that criminal matter was not the only evidence that could have been produced by the Insurance Company, but the owner as also other evidence could have been adduced in this behalf.

14. I am, therefore, of the opinion that the Insurance Company has been wrongly absolved from its liability to compensate the claimants. Thus I hold all the three respondents jointly and severally liable to compensate the claimant under issue No. 2.

15. For the reasons recorded above, these appeals succeed and are allowed. The aforesaid amount of Rs. 4,65,000/- would be apportioned in the following terms:

16. Appellant Nos. 6 and 7 i.e parents of the deceased shall get Rs. 49,000/- each. Remaining amount of Rs. 3,75,000/- will be divided equally amongst appellant Nos. 1 to 5. The shares of the minors will however be deposited in a fixed deposit payable to them on their attaining majority.