FAO No. 778 of 1989 -1- In the High Court of Punjab & Haryana at Chandigarh F. A. O. No. 778 of 1989 and Cross-objection No. 43/CII of 1990 (O&M) Date of decision : 13.5.2010 The New India Assurance Company Limited ... Appellant vs Ranjit Singh and others .... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. L. M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate, for the appellant. Mr. J. L. Malhotra, Advocate, for the cross-objectors/claimants. Rajesh Bindal J. This order shall dispose of aforementioned appeal as well as the cross-objections as the same arise out of one accident. The appellant- insurance company has challenged the award passed by the learned Motor Accident Claims Tribunal, Karnal (hereinafter to be referred as “the Tribunal”), whereby the appellant insurance company was held liable along with the driver and owner, to satisfy the award jointly and severally. Briefly the facts as stated in the award of the learned Tribunal are that on 28.9.1987 Tej Pal was travelling from his village Jatpura to Kachhwa on Telco Truck Chasis No. SE-1210 B-364-0-73-8-50154 which was owned by respondents no. 10 and 11 and driven by Hari Singh, respondent no. 12. He was driving the vehicle in a rash and negligent manner. When the vehicle reached near bridge of SYL Canal on Jatpura-Kachhwa road, it fell into the SYL Canal due to rash and negligent driving of its driver. As a result of this, Tej Pal died. DDR was registered. The claimants filed petition before the learned Tribunal seeking compensation, which was allowed vide award dated 12.4.1989 and the appellant insurance company, driver and owners were held liable to satisfy the award. It is this finding which is impugned by the insurance company in the appeal whereas the parents of deceased are seeking further enhancement by filing the cross- objections. The claim on behalf of brothers and sisters of the deceased was not pressed before the learned Tribunal. Learned counsel for the appellant submitted that admittedly the deceased was a passenger on the truck chasis and as per provisions of Section 95 of the Motor Vehicles Act, the insurance company is not liable to pay any FAO No. 778 of 1989 -2- compensation when a passenger is travelling on a truck, which met with an accident. Moreover, the respondents-owners failed to prove the original policy of insurance that the truck chasis was insured to carry passengers under the terms of the policy. Even if the insurance policy is admitted by the appellant still that would mean only what is covered in terms of provisions of the Act. As the insured in the present case has not led any evidence to show that any extra premium was paid for coverage of any passenger in the truck chasis which was fit only for being driven by a driver. It was also submitted that it is not the case of the owners that the insurance company is liable to satisfy the award rather it was stated by the owners in their reply that duty of the driver of the truck chasis was not to carry passengers rather his duty was to take truck chasis to the given destination. Learned counsel for the claimants submitted that the income assessed at Rs. 600/- per month by the learned Tribunal is on lower side. His monthly income was Rs. 3,000/- but the learned Tribunal has totally ignored this fact. It was submitted that since the parents of the deceased were fully dependent on him, the minor brothers and sisters were also dependent on him as he was the only bread earner of the family. No doubt, the claim on their behalf was not pressed before the learned Tribunal, but the fact remains that he was spending substantial amount on the family, therefore, the total compensation of Rs. 42,000/- assessed by the Tribunal is on lower side. It was also submitted that no compensation was granted by the learned Tribunal on account of funeral expenses and loss to the estate, etc. It was submitted that they had lost their young son aged about 21 years. It was prayed that the same be enhanced to Rs. 15,000/- under each head. Heard learned counsel for the parties and perused the paper-book. As far as the claim made by the Insurance company in the appeal filed it is concerned, in my opinion, the findings recorded by the learned Tribunal holding the insurance company also liable to satisfy the award cannot be sustained in law. The ground on which the Tribunal held the insurance company liable to satisfy the award is that the insurance company had failed to produce on record the complete insurance policy including its terms as it was only a photo copy of the cover note which was produced on record. As this document was produced by the insurance company, they could not possibly dispute the genuineness thereof. A perusal of the same shows that it was only transit risk of the chasis which was covered. The cover note was issued in accordance with the provisions of Chapter 8 of Motor Vehicles Act, 1939 which provided for 3rd party coverage liability. The insured had not produced on record any other document showing that in fact a passenger could also be carried in the chasis in terms of the policy taken by them FAO No. 778 of 1989 -3- and on that account the insurer was liable to indemnify the insured. The primary liability to pay the compensation in a motor accident is of the owner of the vehicle. It is only that he is indemnified by the insurer in terms of the policy which is contractual. The parties to the agreement are bound by the terms thereof. If the owner seeks to be indemnified, he is to make out a definite case that in terms of the policy taken by him, the insurer is liable to indemnify him. But in the present case the owner has failed to discharge that burden. Accordingly, it is held that the insurance company has been wrongly held liable to pay compensation to the claimants. Cross-objections No doubt, the claimants have lost their young son and have suffered great misery. They have been deprived of love and affection of the deceased, which cannot be compensated in terms of money. Still this court is bound by various principles laid down for determination of compensation in motor accident claims. Even if the judgment of Hon'ble the Supreme Court in Sarla Verma (Smt.) and others vs Delhi Transport Corporation and another 2009 (6) SCC 121 is considered, the amount of compensation assessed by the learned Tribunal cannot be said on lower side though the principle applied by it is not strictly in terms thereof. However, keeping in view that no compensation has been awarded by the learned Tribunal on account of funeral expenses and loss of estate, the claimants are granted lumpsum of Rs. 10,000/- on account of funeral expenses and loss to the estate. The appeal and the cross-objections are disposed of in the above terms. 13.5.2010 ( Rajesh Bindal) vs Judge