FAO No.1364 of 1995 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH X Obj No.51-CII of 1995 in/and FAO No.1364 of 1995 Date of Decision. 16.08.2010 United India Insurance Co. Ltd., Yamuna Nagar through its duly constituted attorney Sh. S.K. Bansal Dy. Manager Sector 8-C, Chandigarh. ......Appellant Versus Phoolan Devi widow of Kesar Chand Bajaj alias Chander son of Bakhta Ram and others ......Respondents Present: Mr. Inderjit Sharma, Advocate for Mr. Pradeep Bedi, Advocate for the appellant. Mr. M.S. Joshi, Advocate 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 is on appeal against a liability cast on the insurer for an accident that resulted in death of a person, who was travelling in a truck. The deceased was said to be carrying sugar for offering to some party in the truck when the accident had taken place. It is pointed out by the learned counsel for the insurer that the accident took place on 21.08.1993 and at the relevant time, the owner of the goods travelling in a goods carriage was not required to be compulsorily covered for risk for death or injury. The amendment of Section 147 of the Motor Vehicles Act including the FAO No.1364 of 1995 -2- compulsory insurance for the owner of the goods travelling along with the goods came for the first time only on 14.11.1994 and therefore, an accident involving injury or death cannot have a valid cause of action against the insurer. I accept the contention as tenable and the Tribunal was in error in casting the liability on the insurer for a person, who was a passenger in a goods carriage. 2. The claimants have come by means of an cross appeal to contend that the Tribunal, while addressing the evidence, has found that the accident had taken place on account of the negligent conduct of the truck driver but it was also on account of the negligence of yet another tractor which had been parked on the other side of the railway track and the accident took place only on account of a collision with the tractor when the truck turned turtle and the deceased, who was sitting in the truck got crushed and died on the spot. The Tribunal has apportioned the liability between the truck and the lorry as 75:25 and after determining the amount payable to the claimants at Rs.2,16,000/- worked out a partial abatement of 25% for the fault of the tractor and directed that the said amount shall be recovered only from the tractor owner and the insurer. In my view, the approach of the Tribunal is erroneous. While it was perfectly justified that the Tribunal had to entertain a claim against any one of the joint tort feasors, the Tribunal ought not to have subjected the claim to any abatement by apportioning liability on the owner of another vehicle when it was not a party before the Tribunal. Apportionment will have meaning for a claimant only if both the offending vehicles were parties. If only FAO No.1364 of 1995 -3- one of them was a party, the Tribunal could not have subjected the claim to any abatement and it was bound to award the entire amount against any one of the joint tort feasors leaving it to one of them, who has been made as a party to initiate independent action for recovery. Further, it will be wrong to even assess the apportionment of percentage in the absence of another party, for it would so happen that the other vehicle may contend that it was not in any way responsible for the accident and that any decision given in its absence was not binding. 3. Even while finding that the owner of the truck was liable for the claim arising out of the accident wholly, I would not provide for a right of recovery to any particular percentage of the total claim for that would have to be done only after an adjudication is undertaken in a case where the owner and insurer of the tractor are sued upon. 4. In view of the decision that I have taken in appeal that the insurer is not liable, the award determining a compensation of Rs.2,16,000/- shall be payable only by the owner of the truck, who is arrayed as 8th respondent in the appeal. If any amount has been recovered by the claimants in appeal while the appeal was pending from the insurer, the insurer shall have a right of recovery of the amount that it has paid only from the 8th respondnet and not from the claimants. The 8th respondent shall also have a right to seek contribution against the owner and insurer of tractor in an independent action, if he so advised. 5. The appeal is allowed to the above extent and the claim FAO No.1364 of 1995 -4- for enhancement is also allowed partly to provide for an increase in compensation to the entire amount as determined originally and the amount in excess of what has already been recovered by the claimants shall be recoverable from the 8th respondent. (K. KANNAN) JUDGE August 16, 2010 Pankaj*