FAO No.1453 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1453 of 2009 Date of decision .4.2010. United India Insurance Co. Ltd. ...... Appellant. versus Balwant Kaur and others. ...... Respondents. Present : Mr. Gopal Mittal, Advocate for the appellant. Mr. Suneet Sharma, Advocate for respondent No.1. Mr. Rahul Rampal, Advocate for respondent FAO No.1475 of 2009 Surjit Kaur alias Rani and another ...... Appellants. versus United India Insurance Co. Ltd. and another. ...... Respondents. Present : Mr. Rahul Rampal, Advocate for the appellants. Mr. Gopal Mittal, Advocate for respondent No.1. Mr. Suneet Sharma, Advocate for respondent No.2. FAO No.1453 of 2009 2 K.C.PURI. J. By this common order, I intend to dispose of FAO No.1453 of 2009 United India Insurance Co. Ltd. versus Balwant Kaur and others and FAO No. 1475 of 2009 titled as Surjit Kaur alias Rani and another versus United India Insurance Co. Ltd. and another., as these appeals arise from the same award. For convenience facts are being taken from FAO No.1453 of 2009. Briefly stated Balwant Kaur mother of deceased Narinder Singh filed claim petition under Section 163-A of the Motor Vehicles Act ( in short – the Act). Surjit Kaur widow, Satbir Singh minor son were arrayed as respondent Nos.2 and 3 before the Tribunal, The Tribunal after adjudication accepted the claim petition and allowed a sum of Rs.3,60,000/- to the claimant Balwant Kaur as well as Surjit Kaur and Satbir Singh in equal shares. Briefly stated, the case of the claimants set forth in the claim petition is that Narinder Singh on 16.7.2003 at about 5.30 p.m. was driving three-wheeler bearing registration No. PB-10AV-4735 from local Bus Stand to Shimlapuri. He was followed by his brother Dharminder Kumar on a bicycle. When he reached near Gurudwara Dukhniwaran Sahib due to rush, while giving side to other vehicle, his three wheeler turned turtle and due to which Narinder Singh fell down and was crushed by the said three wheeler. Narinder Singh succumbed to his injuries at the spot. The accident took place due to use of the said three wheeler. Respondent No.1 is insurer. Respondent No.2 has taken FAO No.1453 of 2009 3 Rs.1,50,000/- from the claimant and executed agreement relinquishing her rights to claim compensation. The deceased was earning Rs.4000/- per month at the time of his death. An amount of Rs.10,00000/- has been claimed under Section 163-A of the Act. Respondent No.1 United India Insurance Company filed separate written statement taking preliminary objection that the claim petition is not drafted in accordance with the Rules of Punjab and Haryana High Court, the claim petition is bad for nonjoinder and misjoinder of necessary parties. The claimant is insured and owner of the vehicle and has no right to file the present claim petition. The deceased Narinder Singh did not possess the valid and effective driving licence, at the time of accident. He was not driving the three-wheeler No. PB-10AV-4735 in the course of his employment with the owner and Insurance company. The three wheeler was not having valid registration certificate and is being driven against the terms of the insurance policy. The claim petition is barred under Order 2 Rule 2 of the Code of Civil Procedure (in short – the CPC) and Rule 23 Rule 1 of the CPC. However, the factum of Insurance with the answering respondent was admitted. Respondent Nos.2 and 3 filed their separate written statement taking preliminary objections regarding maintainability, misjoinder and nonjoinder of necessary parties. It is further pleaded that the claimant is not dependent upon the deceased and the answering respondents are widow and minor son of the deceased. The answering FAO No.1453 of 2009 4 respondents had spent the amount for cremation and have performed the last rites of the deceased. It is denied that any agreement has taken place and that they received an amount of Rs.1,50,000/-. From the pleadings of the parties, following issues were framed:- 1. Whether the claimant is entitled to compensation as claimed by her in the petition from the respondents?OPA. 1A. Whether deceased Narinder Singh was not possessing valid and effective driving licence at the time of accident ? OPR-1. 2. Whether the claim petition is not maintainable in the present form ?OPR. 3. Whether the claim petition is bad for misjoinder and nonjoinder of parties ?OPR. 4. Relief. In support of her case, claimant Balwant Kaur appeared as her own witness as PW-1 and also examned Chaman Lal (PW-2), Rajinder Singh (PW-3) and Dharminder Kumar (PW-4). In rebuttal, respondent Surjit Kaur appeared as RW-1 and also examined Mohinder Singh (RW-2). Respondent No.1 tendered into evidence copy of Insurance policy Ex.R-1, copy of order dated 25.1.2008 and Ex.R-2 photostat copy of the petition, statement dated 29.3.2006 of Sh.J.S.Pandher and order dated 29.3.2006 as Mark R-1 to Mark R-3. The learned trial Court has taken up issue No.1 and 1A together and reached to the conclusion that claimant and respondent Nos.2 and 3 are entitled to claim Rs.3,60,000/-. The income of the FAO No.1453 of 2009 5 deceased was assessed as Rs.3000/- per month and dependency was taken as Rs.2000/- per month. The age of the deceased was taken as 33 years and multiplier of 15 was applied and in this manner, an amount of Rs.3,60,000/- was calculated. The said amount was ordered to be shared equally by claimant and respondent Nos.2 and 3. Issue Nos. 2 and 3 were not pressed before the Tribunal. So, in view of finding on issue Nos.1 and 4, the claim petition was accepted as mentioned above. Feeling dissatisfied with the above said Award, United India Insurance Company has preferred the appeal for setting aside the Award whereas Balwant Kaur claimant has also preferred the appeal for enhancement of compensation. It is pleaded that multiplier of 15 at the age of 33 is on lower side. No amount regarding cremation and last rites has been allowed Since both these appeals have arisen out of the same award, and as such are being disposed of with the common judgment. Learned counsel for the Insurance Company has challenged the Award. The first ground taken by the Insurance Company is that Balwant Kaur herself was the owner of the vehicle in question and was not a third party. There was no relationship of employer and employee between the deceased and the insured. Since, deceased Narinder Singh was not holding a valid driving licence and was having only a learner licence and in view of authority Ningamma & Anr. vs. United India Insurance Co. Ltd. 2009 (3) RCR 435, the deceased was not authorized FAO No.1453 of 2009 6 to drive the vehicle in question. It is further submitted that respondent No.2 widow respondent No.3 minor son of deceased have already taken Rs.1,50,000/- from the claimants/owners have relinquished their rights as there were chances of re-marriage of respondent No.2 and as such no amount of compensation can be awarded to the widow. It is further submitted that claimants have misused the process of law. She earlier filed petition under Section 166 of the Act, which was got dismissed as withdrawn on 29.3.2006. She again filed petition under Workmen Compensation Act, which was also withdrawn on 25.1.2008. So, the claim petition is not maintainable. It is further contended that even according to the claimants the deceased was having income of Rs.4000/- per month. So, the claim petition under Section 163-A of the Act is not maintainable inasmuch as the income of the deceased was more than Rs.40,000/- per annum. To support this contention, the learned counsel for the appellants has relied upon authority Deepal Girishbhai soni and Ors. vs. United India Insurance Co.Ltd. Baroda 2004(2) PLR 271 equivalent to 2004 AIR (SC) 2107. In reply to the above noted submissions, the learned counsel for the claimant has submitted that learner licence is as good as that of regular licence and to support this contention, he has relied upon authority National Insurance Company vs. Swaran Singh and others 2004 ACJ (1) Page 1. It is further contended that although the FAO No.1453 of 2009 7 income of the deceased has been pleaded as Rs.3000/4000/- per month but the Tribunal has assessed the income of deceased as Rs.3000/-. The Division Bench of Punjab and Haryana High Court in authority reported in Oriental Insurance Co. Ltd. vs. Saroj and others 2008 ACJ 594 held that claim petition is maintainable even where the income of deceased has been alleged to be more than Rs.40,000/- but the Court found the income less than Rs.40,000/- per annum. It is further contended that the appellants is a widow lady. The vehicle was owned by her and was being plied by his son Narinder Singh. So, for all intent and purposes, there would be a relationship of employer and employee. As per terms of the policy Ex.R-1 extra premium has been paid for one employee. So, the insurance company has been rightly held liable to pay the amount of compensation. I have considered the submissions made by both the sides and have gone through the records of the case. So far as the reliance of authority Ningamma & Another's case (supra) is concerned, para No.22 of the said judgment is relevant which is reproduced as under :- “22. When we analyze the impugned judgment of the High Court in terms of aforesaid discussion, we find that the counsel for the insurance company himself contended before the High Court that the policy of insurance was an Act policy and the risk that is covered is only in respect of persons contemplated FAO No.1453 of 2009 8 under Section 147 of the MVA. It is the finding of fact which we have also upheld in this judgment that the deceased was authorized by the owner of the vehicle to drive the vehicle. When we examined the facts of the present case in view of the aforesaid submission made, we are of the opinion that such an issue was required to be considered by the High Court in the light of the facts and evidence adduced in the case. On consideration of the Judgment and Order passed by the High Court we find the same to be sketchy on the aforesaid issue as to whether the claim could be considered under the provisions of Section 166 of the MVA. In this connection, reference can be made to a judgment of this Court in the case of Oriental Insurance Company Ltd. vs. Rajni Devi and Others (supra), wherein, it was held that where compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof.” So, from the perusal of said para of the judgment, it is crystal clear that liability of the Insurance Company also arises against the Insurance Company out of the terms of the contract i.e. term of the FAO No.1453 of 2009 9 policy. Now reverting to the terms of the policy Ex.R-1, it is clear that extra premium of Rs.25/- was paid in respect of WC to employee I, as besides liability in respect of passenger. The petitioner/appellants is the mother of deceased and deceased was earning the livelihood of himself and the widowed mother by the use of vehicle in question. For all intends and purposes, the deceased would be deemed to be an employee of the appellant. Since the extra premium has been paid for one employee and as such the Insurance Company cannot be absolved from its liability to pay the amount of compensation. The other ground raised by the counsel for the Insurance Company that since the deceased was earning Rs.4000/- per month as per claim petition and as such claim petition under Section 163-A of the Act is not maintainable. That submission looks attractive but is without any legal force. The Division Bench of this Court in Oriental Insurance Co. Ltd. vs. Saroj and others' case (supra) held that where the income of deceased is alleged more than Rs.40,000/- but the Tribunal assessed the income less than Rs.40,000/- in that case, the claim petition is maintainable. Otherwise also, the issue of maintainability was framed in the present case and the same was not pressed before the Tribunal. The Insurance Company cannot press the said issue now at the appellate stage. Authority Deepal Girishbhai Soni and others' case (supra) FAO No.1453 of 2009 10 does not advance the case of the appellants. The ratio on the judgment of that case is that proceedings under Section 163-A of the Act and under Section 166 of the Act are separate proceedings. There is no dispute with the said proposition of law. In that case, compensation under Section 163-A of the Act was allowed. The Hon'ble Apex Court exercising the power under Article 142 of the Constitution of India held that the amount awarded to the claimant under Section 163-A of the Act be treated as petition under Section 140 of the Motor Vehicles Act and the Tribunal was directed to assess the compensation under Section 166 of the Act. The fact that it is a welfare legislation was kept in view by the Apex Court in exercising the discretion under Article 142 of the Constitution of India. The other submission made by learned counsel for the appellants to the effect that previously petition under Section 166 of the Act and petition under Workmen Compensation Act were withdrawn and as such petition under Section 163-A of the Act is not maintainable, is without any substance. The fact remains that no adjudication under Section 166 of the Act and claim petition under Workmen Compensation Act was arrived at between the parties and the petitioner has chosen to claim compensation under Section 163-A of the Act. The other contention raised by the counsel for the appellants to the effect that since deceased was holding a learner licence and as such Insurance Company is not liable is concerned, authority FAO No.1453 of 2009 11 laid down in National Insurance Company vs. Swaran Singh ACJ Page 1 is helpful to the case of the claimants now the respondents wherein it is held that Insurance Company is liable in case the driver is holding the learner driving licence. So far as the appeal regarding enhancement of compensation is concerned, the Tribunal has taken the income of Rs.3000/- and dependency Rs.2000/- per month and the multiplier of 15 has been applied. However, as per schedule II of Section 163-A of the Act, in case the deceased is between 3o to 35 years of age in that case multiplier of 17 should have been applied. So, in these circumstances, the amount of compensation stands enhanced by Rs.48,000/- i.e. by increasing the multiplier to 17 instead of 15 (Rs.24,000 x 2). Another sum of Rs.9500/- stands allowed on account of funeral expenses, loss of estate and consortium. So, the enhanced amount of Rs.57,500/- shall be paid to the claimant along with interest @ 7% per annum from the date of appeal till realization. Out of the said amount the present appellants shall be paid Rs.20,000/- and the remaining amount shall be paid to widow and minor in equal shares. The share of the minor shall be deposited in the shape of FDR in some nationalized bank to be paid to the minor at the time of attaining the age of majority. The liberty to pay the enhanced amount shall same as ordered by the Tribunal. Consequently, the appeal preferred by the Insurance Company stands dismissed and appeal preferred by the claimants stands partly accepted to the extent as discussed above. FAO No.1453 of 2009 12 A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE April , 2010 sv