FAO No. 3002 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 3002 of 2008 (O&M) Date of decision: 02.02.2010 C.T.U. Depot No. II, 701, Industrial Area, Chandigarh ....Appellant Versus Hari Chand and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Mr. Rajesh Garg, Advocate, for the appellant. Mr. J.S. Saneta, Advocate, for respondents No.1 and 2. Mr. Saurabh Dalal, Advocate, for respondent No.4. Mr. Ravinder Arora, Advocate, for respondent No.5. ***** VINOD K. SHARMA, J (ORAL) CM No. 17099-CII of 2008 This application under Section 5 of the Limitation Act has been moved for condoning the delay of 90 days in filing the appeal. The ground taken for condonation of delay is, that the appeal could not be filed within time because of the illness of the counsel. The application is supported by an affidavit. No reply to the application has been filed, therefore, the averments made go unrebutted. It is well settled law that the parties cannot be allowed to suffer on account of act of the counsel. Consequently, this application is allowed and the delay of 90 days in filing the appeal is condoned. FAO No. 3002 of 2008 (O&M) -2- FAO No. 3002 of 2008 This appeal by the Chandigarh Transport Undertaking is directed against the award dated 27.2.2008, passed by the learned Motor Accident Claims Tribunal, Panipat, allowing the claim petition filed by the claimants under Section 163-A of the Motor Vehicles Act. The claim was sought on the pleading, that on 13.1.2006, deceased Bablu had gone to Karnal from his village. He was travelling in maruti car bearing registration No. DL-6C-A-6282 by taking a lift. When the car, in which the deceased Bablu was travelling, reached Atal Park, Karnal, it met with an accident with bus No. CH-01-G-5890 owned by the appellant and driven by Diwan Singh. FIR was registered qua this incident at Police Station, Civil Lines, Karnal, against the CTU bus. The stand taken by the appellant was, that accident had occurred, in fact, due to the rash and negligent driving of the car driver, who had stolen the car, and that there was no fault of the driver of the CTU bus. Owner of the car denied his liability by claiming that he could not be held liable for the acts of Ved Parkash, as he was not his driver. He also pleaded that car was stolen on 12.1.2006 and a theft case was registered, and furthermore he had received the amount of full compensation from the Insurance Company for the theft of the car, which was not traced. Respondent No.4 also contested the claim. Learned Tribunal on issue No.1 recorded the finding, that Bablu expired after sustaining injuries in a motor vehicular accident, which took place on 13.1.2006 within the jurisdiction of Police Station, Civil Lines, Karnal. Due to the involvement of bus bearing No. CH-01- G-5890 and car bearing No. DL-6C-A-6282. FAO No. 3002 of 2008 (O&M) -3- The compensation payable was assessed at Rs.2,72,000/- (Rupees two lac seventy thousand only). The claimants were also held entitled to interest @ 7.5% per annum from the date of filing of the petition till realisation. Respondents No.1 and 2 i.e. Driver and CTU were held liable to pay 50% amount of the compensation, whereas remaining amount was directed to be paid by owner of the car and the Insurance Company. Mr. Rajesh Garg, learned counsel, appearing on behalf of the appellant, has challenge the impugned part of the award, vide which the liability of the appellant has been fixed at 50% of the amount, on the plea that the liability could not be fixed on the appellant under Section 163-A of the Motor Vehicles Act. The learned counsel for the appellant referred to Section 163- A of the Motor Vehicles Act, which reads as under: - “163-A. Special provisions as to payment of compensation on structured formula basis. - (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation. - For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or FAO No. 3002 of 2008 (O&M) -4- vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.” The contention of the learned counsel for the appellant was that under Section 163-A of the Motor Vehicles Act, no negligence was required to be proved. The only requirement was to prove the use of vehicle, and in this case once the accident had occurred due to use of vehicle i.e. maruti car, no liability could be fixed on the appellant. The impugned part of the award, which is contrary to the provisions of Section 163-A of the Motor Vehicles Act, was not sustainable in law. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. Once it is admitted that accident had occurred due to the collision between the bus and the car, both the vehicles were responsible for the accident, and also that both the vehicles were in use. The liability could not, therefore, be restricted only on the owner and the Insurance Company of the car, as contended. No ground is made out to interfere with the impugned award. No merit. Dismissed. (Vinod K. Sharma) Judge February 02, 2010 R.S.