IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1780 of 2008 Date of decision:17.08.2010 New India Assurance Company Limited ....Appellant versus Kavita and others ...Respondents II. FAO No.4233 of 2008 Kavita and others ....Appellants versus Chand Ram and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Neeraj Khanna, Advocate, for Mr. N.K.Khosla, Advocate, for the appellant in FAO No.1780 of 2008 and for respondent No.3 in FAO No.4233 of 2008 Mr. Pawan Hooda, Advocate, for the appellants in FAO No.4233 of 2008 and for respondents 1 to 6 in FAO No.1780 of 2008. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The Insurance Company is in appeal contending that it is not liable, for, the person that died in the accident was not a passenger in FAO No.1780 of 2008 - 2 - the vehicle at all. On the other hand, he was seated on the ceiling of the jeep and the accident took place when the driver applied brake and he fell on the road and got killed. There was evidence placed by the driver, who had a different version to give. He stated that the deceased person was seated in the middle of the car and when he applied brake, he fell out of the vehicle. It is rather a strange occurrence of somebody falling out unscientifically by applying a brake towards the back of the vehicle when his outward projection must have been in the direction of the vehicle itself. I do not still want to examine these issues on how artificial the evidence is for the evidence grapples with a poignant situation of a man dying leaving behind three minor children and a young widow. The Tribunal found the version of the driver was not correct and held that the deceased was travelling in the roof of the jeep, but still rooted the liability on the insurer by the fact that the driver was negligent in allowing a person to be seated atop the jeep and if there was negligence on the part of the driver, by vicarious liability, it was fastened to the owner which in turn resulted in the insurer answering a claim. 2. The Insurance Company appears to have taken a preliminary objection challenging the driving licence and its liability but later withdrew its objection. It so turns out ultimately that the appeal by the Insurance Company is only on the issue of quantum. The Insurance Company cannot join issues on the question of quantum in an appeal and, I therefore, hold that the Insurance Company is bound to satisfy the award and it cannot assail the award in the manner sought to be done now. The appeal is dismissed. FAO No.1780 of 2008 - 3 - 3. There is also an appeal for enhancement by the claimants on the ground that the deceased was assessed as merely drawing a salary of Rs.2,400/- which, according to the learned counsel for the claimants, is grossly low and even less than the minimum wages admissible. The issue must only be taken as on the basis of what was placed before the Tribunal and with no evidence available relating to the income, the Tribunal took the income to Rs.2,400/-. I cannot accommodate the plea of the counsel that in the absence of any proof of income, the minimum wages must have been taken as the salary drawn by him. The Tribunal adopted the formula as per Schedule-II by working 1/3rd deduction and adopting a multiplier of 18 to arrive at a compensation of Rs.3,45,600/- added Rs.10,000/- towards the conventional heads of claim and determined the compensation of Rs.3,55,600/- as payable. The amount awarded by the Tribunal is just and would not require any modification. The appeal for enhancement is consequently dismissed. (K.KANNAN) JUDGE 17.08.2010 sanjeev