IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.397 of 1992 (O&M) Date of decision:25.03.2011 Smt. Maya Devi and others ....Appellants versus Bharat Singh and others ....Respondents II. FAO No.398 of 1992 (O&M) Smt. Rajesh Devi and another ....Appellants versus Bharat Singh and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Narender Kumar Vashist, Advocate, for Mr. Raj Kumar Gupta, Advocate, for the appellants. Mr. Neeraj Khanna, Advocate, for the Insurance Company. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. Both the appeals are against the award of compensation on merely no fault basis by a finding that the deceased died by their own negligence in sitting on the mudguard of the tractor. The Insurance Company was also exonerated. FAO No.397 of 1992 (O&M) - 2 - 2. The learned counsel for the appellants states that the Insurance Company ought to have been made liable, for, the claimants were not gratuitous passengers but they were themselves agricultural labourers and they ought not to be taken as gratuitous passengers. I find no scope for making the insurer liable in a case where the deceased were admittedly not 'third parties' but travellers on a tractor which was clearly unauthorized. 3. Even while rejecting a claim for compensation against the insurer for liability more than the amount of compensation on no fault liability which conforms to a later decision in Eshwarappa @ Maheshwarappa and another Versus C. S. Gurushanthappa and another-2010(8) Scale 263, the Tribunal could not have restricted the claim only for consideration on no fault liability. It must have proceeded to find the driver of the tractor itself was negligent in having caused the accident and in also permitting the persons to sit on the mudguard of the tractor. The driver and consequently, the owner should have been made vicariously responsible for the claim arising out of the death caused to the two passengers. 4. In FAO No.397 of 1992, the claimants were widow, three minor children and mother of the deceased, who was 35 years of age. The claimant had stated the income to be Rs.2,000/-. I will take that to be established and make a deduction of 1/4th in the light of the law laid down by the Hon'ble Supreme Court in Sarla Verma Versus Delhi Transport Corporation and another 2009(6) SCC 121 and take the contribution to the family at Rs.1,500/- and apply a multiplier of 18 to FAO No.397 of 1992 (O&M) - 3 - find the loss of dependency at Rs.3,24,000/-. I will add another Rs.16,000/- towards the conventional heads of claim such as loss of consortium, loss of love and affection, funeral expenses and loss to estate and hold the compensation at Rs.3,40,000/- as payable. The amount in addition to what has been determined already by the Tribunal shall attract interest at 6% from the date of petition till date of payment and shall be distributed amongst the widow and three children only. The right of enforcement will be available only against the owner and the driver and not against the insurer. 5. In FAO No.398 of 1992, the deceased was 21 years of age and the claimants were his young widow and parents. He was said to be an agricultural labourer and his income was assessed at Rs.2,000/-. I will provide for 1/3rd deduction for personal expenses and apply a multiplier of 18 to hold Rs.2,88,000/- as the loss of dependency and make an addition of Rs.12,000/- for loss of consortium to the wife, loss to estate and funeral expenses to hold the compensation at Rs.3 lakhs as payable. The amount in addition to what has been determined already by the Tribunal shall attract interest at 6% from the date of petition till date of payment and shall be distributed amongst the widow and the parents in the ratio of 4:1:1. The enforcement of the claim shall be available for the claimants only against the owner and driver and not against the insurer. The awards are modified and the appeals are allowed to the above extent. (K.KANNAN) JUDGE 25.03.2011 sanjeev