FAO No.2140 of 2006 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2140 of 2006 Date of Decision. 08.10.2010 National Insurance Company Ltd., Regional Office-II, SCO Nos.337- 40, Sector 35-B, Chandigarh through its authorized attorney Mrs. Sarla Lamba, Assistant Manager ......Appellant Versus Babita widow of Anil Kumar and others ....Respondents 2. FAO No.2141 of 2006 National Insurance Company Ltd., Regional Office-II, SCO Nos.337- 40, Sector 35-B, Chandigarh through its authorized attorney Mrs. Sarla Lamba, Assistant Manager ......Appellant Versus Ashok Kumar son of Kishore Kumar and others ....Respondents Present: Mr. Navin Kapur, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The insurance company for two vehicles involved in the accident was of the same branch and the claim petitions arose from the representatives of the driver of another vehicle and for injuries for the cleaner of the other vehicle. It was a case of collision between a long bay truck and the insured's truck. The driver of both the trucks had died. The driver of the insured's truck was incidentally the owner of the vehicle also. When the claim petition FAO No.2140 of 2006 -2- had been filed on behalf of the representatives of the driver of the long bay truck, they had impleaded the owner treating him to be alive but later when it was found that the owner was also the driver of the truck and he had died already, they had given up the owner driver. The first contention, therefore, by the insurance company is that the action cannot survive for consideration in the absence of impleadment of the legal representatives of the owner-driver, who was insured. This issue of effect of non-impleadment of the insured has come up for consideration in several cases and particularly with reference to the provision under Section 155 of the Motor Vehicles Act. The Section reads thus:- “155. Effect of death on certain causes of action. Effect of death on certain causes of action. Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925, (39 of 1925.) the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer.” 2. The necessity of having to implead the owner insured is never in doubt but it shall make a difference when the insured is not alive and the claim is prosecuted only against the insurer of the deceased owner. The cases have arisen in situations where during the pendency of proceedings, the owner died and legal representatives were added. (please see United India Insurance Co. FAO No.2140 of 2006 -3- Ltd. Vs. Sakkunuri Venkayamma 2007 ACJ 1085 (AP); R. Kamala Vs. Shaikh Mohd. Ghouse 2004(2) ACJ 8 (AP). The Courts have held that the such non-impleadment is not material and the presence of the insurer is sufficient for successful prosecution of the claim. In E.M.K. Rajamma Vs. United India Insurance Co. Ltd. 2005(2) CTC 404: (2006) 3 MLJ 728, the insured had died even befoe policy but the insurance company had renewed the policy without verifying the death of the person, in the name of a dead person. Relying on Section 155 of the Motor Vehicles Act, the Court made the insurer liable. The Karnataka High Court had also held in Oriental Insurance Company Limited Vs. Nanjamma 2005 ACJ 1534 that non-impleadment of the decesed owner was not of any consequence. In my view, it ought not to make a difference if death of the owner had arisen after the filing of the petition or before the petition. While it is invariably appropriate that legal representatives of the deceased owner are brought on record so that in the event of any claim being possible for the insurer against the insured for enforcement of the right for any violation on the terms of police under Section 149(2) of the Motor Vehicles Act. It shall make no difference where there is no such defence and the liability of the insurer is surely established by the evidence on record and particularly when no violation of the terms of policy are complained of. The non-impleadment in this case has arisen only by the fact that the insured has himself died in the accident and the provisions under Section 155 of the Motor Vehicles Act sufficiently protects the survival of cause of action against the insurer only. I, therefore, FAO No.2140 of 2006 -4- reject the contention that the applications were not maintainable for non-impleadment of the owner insured of the vehicle. 3. The second contention, which is urged is that it was a case of head of collision and there was no evidence or even an issue framed about the respective negligence of the vehicles. According to the learned counsel without attributing negligence against the insured driver and establishing the claim, the claimants will have no successful right to prosecute under Section 166 of the Motor Vehicles Act. If the Tribunal has not framed any specific issue relating to the negligence, I truly see that to be a lapse but in the peculiar facts and circumstances of the case, I do not think it would make any difference for, a case of collision involves either whole or composite negligence on two drivers. In this case, even if it were to be contended that both the drivers had been responsible for the accident, I will not visit any abatement of entitlement to a driver, who died in the accident and whose representatives were making a claim by applying Section 163-A of the Motor Vehicles Act. It has been held by Hon'ble Supreme Court in Deepal Girishbhai Soni Vs. United India Insurance Company Limited (2004) 5 SCC 385 that in a case of collision, even if the claimants are representatives of the deceased, who had contributed to the accident, it shall be possible to enforce the claim against the owner of the other vehicle involved in the accident without suffering any loss by resort to Section 163-A of the Motor Vehicles Act. 4. All that has to be seen in this situation is whether the claimants would qualify for relief under Section 163-A of the Motor FAO No.2140 of 2006 -5- Vehicles Act. That the claimants were representatives of the deceased is not in dispute, the death of the deceased as occurring due to motor accident involving the use of the motor vehicle is also not in dispute. The accident had been contributed by another vehicle driver and the deceased himself was not the only person responsible for the accident. I would, therefore, find that in this case, the Tribunal had taken the income of the deceased at Rs.3,000/- and if the claim of the person for the injured to be less than Rs.3,000/- then there is no statutory bar for enforcement of the claim under Section 163-A of the Motor Vehicles Act. 5. The claim petition itself has been filed only under Section 166 of the Motor Vehicles Act. The Court cannot be said to be without power to treat it appropriately so long as there is no other bar attached to such provision to secure to the claimants, the relief which is otherwise possible. The award would, therefore, be sustained as claims emanating under Section 163-A of the Motor Vehicles Act where the insurer of the other vehicle, which had contributed to the accident shall become liable for both the claims without subjecting the claimants to the requirement of proof that the insured's vehicle had been guilty of negligence for causing the accident. 6. The award of the Tribunal is sustained although for different reasons than what have been set out in the judgment. The appeal filed by the insurance company in FAO No.2140 of 2006 is dismissed. 7. As regards the claim for injury alone, one of the heads of FAO No.2140 of 2006 -6- claim relates to the medical expenses estimated at Rs.17,670/-. The maximum amount that would be payable would be Rs.15,000/- by application of the provision under Schedule II. The amount, therefore, stand scaled down as far as the claimant injured is concerned to an extent of Rs.2,670/- being the amount in excess of the amount in Rs.15,000/-. The appeal in FAO No.2141 of 2006 is partly allowed to modify the award from Rs.1,07,760/- to Rs.1,05,090/-. (K. KANNAN) JUDGE October 08, 2010 Pankaj*