FAO NOs.636 & 742 OF 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO NO.636 OF 2010 Date of decision:22.9.2011 Naresh Kumar ...Appellant Versus Smt. Asha Rani and others ...Respondents FAO No.742 of 2010 Naresh Kumar Versus Mahipal and another ...Respondents CORAM:HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Sh.Diwan S. Adlakha, Advocate, for the appellant. Mr.Karan Singh, Advocate, for respondent No.1 in FAO No.742 of 2010 Mr.Vivek Singhal, Advocate, for the Insurance Company. -.- JITENDRA CHAUHAN, J. This judgment shall dispose of two appeals i.e. FAO No.636 and 742 of 2010 as the same have arisen out of the common award dated 15.10.2009 passed by the learned Motor Accident Claims Tribunal, Yamuna Nagar (for short `the Tribunal), whereby the claim petitions filed by claimants i.e. Mahipal (injured) and Asha Rani and others (legal heirs of deceased Ashok Kumar) were accepted and the driver/owner Naresh Kumar herein appellant, was held liable to pay the compensation amount on account of breach of provisions of the Motor Vehicles Act, 1988. The facts leading to the present appeals are that on 18.12.2006, FAO NOs.636 & 742 OF 2010 2 three persons, namely, Ashok Kumar, appellant Naresh Kumar and Mahipal were going on a motorcycle bearing Registration No. HR-02P-1193. The motorcycle was driven by appellant-Naresh Kumar and the other riding pillion. When they reached near the turning of village Manakpur on Sarawan-Pabni road, a truck at a high speed hit the motorcycle as a result of which, they fell down and sustained multiple grievous injuries. However, the driver of the truck alongwith his truck fled away from the scene by taking the advantage of the darkness. One of the pillion-riders Ashok Kumar succumbbed to his injuries. In the two separate claim petitions, Mahipal and the legal heirs of Ashok Kumar, (since deceased) took the stand that the alleged accident took place due to the rash and negligent driving of driver of the said truck. After considering the evidence on record and hearing the parties, the learned Tribunal awarded a sum of Rs.4,41,700/- to the legal heirs of the deceased Ashok Kumar and Rs.4,06,900/- to the injuried Mahipal and held the owner and driver of the truck liable to pay the compensation absolving the insurancy company from liability. Feeling aggrived by the award of the learned Tribunal, the appellant-driver of the motorcycle has preferred both the appeals. Learned counsel for the driver-appellant has submitted that the vehicle in question was insured with respondent No.2 and the policy with regard to vehicle was also a comprehensive one. Moreover, there is no column for paying the premium in the policy with regard to the pillion riders. In such circumstances, there was no requirement to pay any additional premium for the pillion riders, as it is covered therein. He, FAO NOs.636 & 742 OF 2010 3 therefore, submits that the finding of the learned Tribunal on this count is erroneous. On the other hand, learned counsel for the Insurance Company submits that since the premium for covering the risk of pillion riders has not been paid, therefore, the liablity of the insurance company is not extended to the pillion riders. He further submits that seating capacity of a motorcycle does not mean coverage of pillion riders in the absence of extra premium. I have heard the learned counsel for the parties and perused the case file. In terms of Section 147 of the Act only in regard to reimbursement of the claim to a third party, a contract of insurance must be taken by the owners of the vehicle. It is imperative in nature. When, however, an owner of a vehicle intends to cover himself from other risks; it is permissible to enter into a contract of insurance and in that event the insurer would be bound to reimburse the owner of the vehicle strictly as per the terms thereof. Admittedly, at the time of accident, three persons were travelling on the motorcycle, which is beyond its capacity and the premium has been paid only for the owner, which is not disputed. In these circumstance, the liability of the Insurance Company is not extended to the pillion riders. While dealingwith the similar situation, Hon'ble the Supreme Court in National Insurance Co.Ltd. V.Anjana Shyam and others (2007) 7 SCC 445 has observed as under:- "Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers FAO NOs.636 & 742 OF 2010 4 constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the FAO NOs.636 & 742 OF 2010 5 satisfaction in full of the awards that may be passed ultimately." Keeping in view the principles laid down in Anjana Shyam's case, it is clear that the there is no ambiguity in the award of the learned Tribunal and it has been rightly observed that as the premium for the pillion riders has not been paid, the Insurance Company cannot be held liable to pay the compensation amount to the claimants. In view of above, the present appeals are dismisssed being devoid of any merit. 22.9.2011 (JITENDRA CHAUHAN) mks JUDGE Note: Whether to be referred to the Reporter? Yes / No