FAO No. 5142 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 5142 of 2010 Date of decision 19.8.2011 1. FAO No. 5142 of 2010 Smt. Chanchal and others. Appellants v. Ranjit Singh and Others Respondents 2. FAO No. 5143 of 2010 Tejinder Pal Singh Appellant v. Ranjit Singh and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Satinder Khanna,Advocate for the appellants/appellant None for respondent Nos. 1 and 2 Mr.Neeraj Khanna,Advocate for respondent No.3 .... JITENDRA CHAUHAN.J 1. These two appeals have been filed by the appellants, against the Award dated 1.5.2010, passed by the Motor Accident Claims Tribunal, Ludhiana (for short the Tribunal) in the two claim petitions ( MACT Nos. 34 of 2009 by Smt. Chanchal and Sham Sunder; and 35 of 2009 by Hardeep Singh) filed by the claimants i.e. Parents of deceased and injured, Rajat and Tejinder Pal Singh respectively. 2. A limited prayer has been made in both these appeals that the Insurance Company be held liable to satisfy the claim of the appellants in both the cases with liberty to recover the same from the owner and the FAO No. 5142 of 2010 2 driver of the Mini Bus No. PB-10Y-9712. None of the parties has challenged the quantum of compensation. 3. Brief facts giving rise of these appeals are that on 24.11.2008, Tejinder Pal Singh,injured-claimant, aged 15 year, was driving Activa scooter and Rajat of same age (deceased) was the pillion. They were going to Leisure Valley, Sarabha Nagar, Ludhiana. When they reached at the turn of Punjab Mata Nagar Chowk, Ludhiana, a Mini bus, bearing registration No. PB-10Y-9712 (Offending Mini Bus) came from Phullanwal side, at a high speed, being driven by Ranjit Singh-driver, in a rash and negligent manner, struck against the scooter and dragged the scooter to some distance. At that time, Sham Sunder,father of Rajat was going to Model Town Extension on his scooter and witnessed the accident. Rajat and Tejinder Pal Singh sustained multiple grievous injuries and were taken to Guru Teg Bahadur Hospital, Ludhiana. They were referred to D.M.C. Hospital, Ludhiana. Rajat was declared brought dead. FIR No. 183 dated 24.11.2008 under sections 304-A, 279, 337, 338, 427 IPC was registered at Police Station Sarabha Nagar, Ludhiana. 4. The claimant in FAO No. 5143 of 2010, Tejinder Pal Singh remained admitted in hospital for 10 days i.e. 24.11.2008 to 3.12.2008. 5. Claim petition No. 34 of 2009, was filed by Smt.Chanchal and Sham Sunder, parents of Rajat, deceased while claim petition No. 35 of 2009 was filed by Tejinder Pal Singh, injured claimant which were allowed on 1.5.2010 vide separate Awards. The claimants came in these appeals, which are being disposed of by this common judgment as both arise out of the same accident and common question for determination arise in these appeals. FAO No. 5142 of 2010 3 6. Upon notice, respondent No. 1, driver of the offending Mini Bus did not file written statement, despite availing opportunities. The defence of respondent No. 1 was struck off. Respondent No.2, owner of the offending Mini Bus denied the accident and pleaded that a false FIR has been registered. 7. Respondent No.3, National Insurance Company Limited, ( for short the Insurance Company) denied the accident and stated that the offending Bus has been falsely implicated in the accident. It was further stated that if the alleged accident had been caused, it was due to negligence of the injured boy, who was driving the Activa scooter. The further stand taken by the Insurance Company was that the driver of the offending Mini Bus was not holding valid driving licence. 8. The claimants filed replications reiterating their pleas taken in the claim petitions. 9. From the pleadings of the parties, the following issues were raised:- (Claim petition No. 34 of 2009) 1. Whether the claimants are the legal heirs of Rajat? OPP 2. Whether Rajat Died in the accident due to rash and negligent driving of respondent No.1, while driving the bus No. PB-10Y- 9712? OPP 3.Whether the petitioners are entitled for compensation, if so, to what amount and from whom ? OPP 4.Whether the respondent No.1 had valid and effective driving licence at the time of accident?OPR-3 5.Relief.” FAO No. 5142 of 2010 4 (Claim petition No. 35 of 2009) 1. Whether Tejinder Pal Singh received injuries in the accident due to rash and negligent driving of respondent No.1 while driving the bus No. PB-10Y-9712? OPP 2. Whether the petitioner is entitled for compensation, if so, to what amount and from whom ? OPP 3.Whether the respondent No.1 had valid and effective driving licence at the time of accident? OPR-3 4.Relief.” 10. After examining the evidence on record, and taking into consideration the guidelines formulated by Hon'ble the Supreme Court in the case of Smt. Sarla Verma v. Delhi Transport Corporation and others, 2009 (6) SCC 121, the Ld. Tribunal, awarded a total compensation to the tune of Rs. 3,26,000/- to the claimants (parents of Rajat, deceased in Claim petition No. 34 of 2009) and Rs. 1,90,000/- to the claimant (father of injured Tejinder Pal Singh in Claim petition No. 35 of 2009). 11. While dealing with Issue No.3, it was observed by the Ld. Tribunal that the offending Mini Bus was insured with the Insurance Company and that the Insurance Company filed application for producing the driving licence by respondents No. 1 & 2. Since the respondents No. 1 & 2 did not produce the driving licence, the Insurance Company could not verify the authenticity of the driving licence. Respondents No.1 & 2 did not appear in the witness box, therefore, an adverse inference was drawn against them, in view of the law laid down in 2009(1) PLR 406 and further allowing both the claim petitions holding liable respondents No. 1 & 2 jointly and severally to make the payment to the claimants vide the Award FAO No. 5142 of 2010 5 dated 1.5.2010. 12. Aggrieved against the Award, the appellants-claimants have filed these appeals. 13. Learned counsel for the appellants submitted that the Ld. Tribunal has absolved of the liability of the Insurance Company while dealing with issue Nos. 3 & 4 and held the driver and owner of the offending Mini bus to pay the claim amount to the claimants. He further submitted that the Insurance Company ought to have been directed to pay the amount of compensation to the claimants with recovery rights to it, in view of the law laid down in New India Assurance Company v. Kamla, 2001 (1) P.L.R 831. 14. I have heard the learned counsel for the parties and perused the file. 15. The Ld. Tribunal, after considering the entire evidence on record has rightly awarded the amount of compensation to the claimants in both the claim petitions, but held liable respondents No. 1 & 2 jointly and severally to pay the amount of compensation to the claimants. 16. The short question for consideration before this Court is “As to whether the Insurance Company-respondent No.3 is liable to compensate the third parties with recovery rights to recover the amount so paid from the insured”? 17. To answer this question, the observations of the Hon'ble Apex Court in the case of New Indian Assurance Co. (supra) are reproduced hereunder:- “21.A reading of the proviso to sub-section (4) as well as the language employed in sub-section (5) would FAO No. 5142 of 2010 6 indicate that they are intended to safeguard the interest of an insurer who otherwise has no liability to pay any amount to the insured but for the provisions contained in Chapter XI of the Act. This means, the insurer has to pay to the third party only on account of the fact that a policy of insurance has been issued in respect of the vehicle, but the insurer is entitled to recover any such sum from the insured if the insurer were not otherwise liable to pay such sum to the insured by virtue of the conditions of the contract of insurance indicated by the policy. 22. To repeat, the effect of the above provisions is this: When a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance the burden is on the insurer to pay a third party, whether or not there has been any breach or violation of the policy conditions. But the amount so paid by the insurer to the third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured.” 18. In the instant case, the Ld. Tribunal drew adverse inference against respondents No. 1 & 2, driver and owner of the offending Mini bus and held them liable to pay the compensation jointly and severally to the claimants but has absolved of the liability of the Insurance Company. The liability of the Insurance Company cannot be absolved of, when a valid FAO No. 5142 of 2010 7 insurance policy has been issued in respect of the vehicle. In that case, the burden is on the insurer to pay to the third parties, whether or not there has been any breach or violation of the conditions of the policy. But the amount so paid by the insurer to the third parties can be allowed to be recovered from the insured-owner, if as per the policy conditions, the insurer had no liability to pay such sum to the insured. 19. The findings of the Ld. Tribunal that only respondents No. 1 & 2 are liable to make payment are erroneous and are modified in both the claim petitions. 20. The National Insurance Company-respondent No.3 is directed to satisfy the Award passed on 1.5.2010 in both the claim petitions i.e. MACT Nos. 34 of 2009, Smt. Chanchal and Another v. Ranjit Singh and 35 of 2009, Tejinder Pal Singh v. Ranjit Singh and Others. However, the Insurance Company shall have the right to recover the same from the owner of the offending Mini Bus, who is the insured. 21. In view of the above discussion, these appeals are allowed with liberty to the Insurance Company to recover the amount to be paid to a third parties, from the insured, as per conditions of the Insurance policy. The appeals stand disposed of accordingly. (JITENDRA CHAUHAN) JUDGE 19.8.2011 MS