F.A.O.NO. 3943 OF 2002 and 1 F.A.O.NO. 3944 OF 2002 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 3943 OF 2002 Date of decision:27th July, 2010 New India Assurance Co., Regional Office, SCO No. 36-37, Sector 17-A, Chandigarh, through its duly constituted Attorney .......Appellant Versus Smt. Raman Bhalla and others ........Respondents F.A.O.No.3944 of 2002 and Cross Objection No. 89-CII of 2002 New India Assurance Co., Regional Office, SCO No. 36-37, Sector 17-A, Chandigarh, through its duly constituted Attorney ........Appellant Versus Om Parkash and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Inderjeet Sharma, Advocate and Mr. Pardeep Bedi, Advocate, for the appellant. Mr. Rakesh Nagpal, Advocate, for the respondents/claimants. Mr. Naresh Kumar Sanghi, Advocate, for respondent Nos. 1 to 4. None for respondent Nos. 5 to 8. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No F.A.O.NO. 3943 OF 2002 and 2 F.A.O.NO. 3944 OF 2002 K.Kannan, J.(Oral) 1. The appeals and the cross objection arise out of the same accident. FAO NO.3943 of 2002 arises out of the claim filed by the private respondents for death of a passenger in the car. The connected appeal FAO No. 3944 of 2002 is for injuries sustained by the driver of the car. The claims were made on the basis that there had been a collision with the vehicle belonging to the Haryana Roadways. The Tribunal rejected the contention and held that the accident was the result of a collision with the tree. Having found that the driver of the car himself responsible and that the Haryana Roadways was not in any way connected to the accident, it allowed for compensation for the injuries to the driver in an application under Section 163-A of the Motor Vehicles Act(hereinafter referred to as the 'Act') and allowed the compensation for the legal representatives of the deceased passenger cum owner of the car. 2. The Insurance Company pleads in the case arising out of death that the application under Section 163-A of the Act itself is not maintainable for two reasons:- i) the deceased was said to have an earning of Rs. 20,000/- per month in which case the provision under Section 163-A of the Act under structured formula can not apply. ii) the deceased was a partner of the firm that owned the vehicle. Since, he was a co-owner of F.A.O.NO. 3943 OF 2002 and 3 F.A.O.NO. 3944 OF 2002 the vehicle himself, a claim for the death arising out of the negligence of his own driving cannot lie against an insurer in an application under Section 163-A of the Act. 3. The argument is that the insurance is to cover the risk to the insured and the representatives cannot obtain compensation for the insured and seek for a claim from the insurance. The Tribunal reasoned that he was only a partner and was not an exclusive owner of the vehicle and therefore, the insurance company would be liable. In my view the reasoning is not correct. A partner in a firm which owns the vehicle is in the position of a co-owner. The question of making a claim under Section 163-A of the Act cannot therefore, survive in view of a law laid down by the Hon'ble Supreme Court in Ningamma and others Versus United India Insurance Company Ltd. (2009) ACJ 2020. The claim petition was not maintainable under Section 163-A of the Act for both the reasons taken up by the claimants. 4. The appeal under circumstances filed by the insurer is allowed, the award of the Tribunal is set aside and the cross objection seeking for enhancement also shall fail. 5. As regards the claim of the insured who was a driver in the accident, the case could not have been prosecuted lawfully under Section 163-A of the Act. However, the liability of the owner would arise by the fact that the risk for injuries sustained in the course of employmet shall be covered under Workmen F.A.O.NO. 3943 OF 2002 and 4 F.A.O.NO. 3944 OF 2002 Compensation Act and compulsory insurance is possible under Section 147(2) proviso of the Act. Since this Court is a Court of appeal for a proceeding under the Workmen Compensation Act, I treat this application as a claim by the workman against the employer and the insurer. The disability ascertained by the Tribunal through the evidence of a Doctor PW-9 was that the driver had serious injuries and suffer permanent disability to a tune of 20% with shortening of leg by 1” and he had also suffered dislocation of sterno clarvicular joint with fracture clavicle right side and discharge of sinus over the leg. The compensation for disability was assessed at Rs. 25,000/-, compensation for pain and suffering was fixed at Rs. 5,000/- and for medical expenses, special diet, transportation and loss of income by the court provided at Rs. 15,000/-. Since this is a claim under Section 163-A of the Act, the medical expenses could not have been more than Rs. 15,000/- nor the claim under pain and suffering be in excess of Rs. 5,000/-. If it were to be taken as claim under the Workmen's Compensation Act, the quantum itself has to be worked only on the basis of the loss of earning capacity, age and income. It cannot provide on the basis of pain and suffering but medical expenses. However, the over all assessment of Rs. 45,000/- is appropriate and just and the same is affirmed. The cross objection is dismissed. [K.KANNAN] JUDGE 27th July, 2010 Shivani Kaushik