FAO No. 51 of 1994 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Cross Objection No. 51 of 2004 FAO No. 51 of 1994 Date of decision February 10, 2011 The New India Assurance Company Ltd. ....... Appellant Versus Mohan Lal and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. L. M. Suri , Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. Mr. Jagdish Manchanda, Advocate for respondent Nos.1,2 and 3-cross objector-claimants. None for respondent Nos. 4 and 5. **** 1. Whether reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?No K. Kannan, J (oral). 1. The appeal is by the insurer on the issue of liability where the deceased was a person travelling in a tempo which was a goods carriage having sold the vegetables in the market and was travelling back in the tempo. There cannot be a passenger in a goods carriage and if goods were not accompanied then there is no insurance cover for the person who was travelling in such a vehicle. The Insurance Company could not have been therefore made liable in view of the law laid down in New India Assurance Company Vs. Asha Rani 2003 2 SCC 223. The award of the Tribunal is modified to the exclude the liability of the insurer and the right of enforcement of the claimant will be available for the FAO No. 51 of 1994 2 claimants only against the owner and driver of the vehicle and not against the insurer. If in the meanwhile during the pendency of the appeal, the claimants have realized the amount from the Insurance Company, the Insurance Company will enforce the claim only against the claimants. The appeal is allowed to the above extent. 2. There is cross-objection for enhancement of compensation for death of 25 year old man. The claim was prosecuted by the parents and the son of the deceased who was 3 years was represented through the grandfather on an averment that the widow was remarried. Ideally, in such situations, the widow must have been made as a party to ensure that no claim is ordered in the absence of all the legal representatives. A widow was a legal representative and if she had remarried, it may have a bearing to reducing her own entitlement, but it will be wrong for a Tribunal to proceed without impleadment of such a party. I will not make this as a ground for a fresh trial. It is merely to state the appropriate practices that a Tribunal shall at the time of trial. 3. The father had claimed that the son was taking the lands on lease and the Tribunal found that he was taking orchards on lease and he was engaged in buying and selling of fruits and at the relevant time of the accident, he was carrying fruits to the market for sale. The Tribunal had assessed the income at `15,000/- and learned counsel states that there was no basis for taking a notional income when definite evidence has been placed about his business as a person dealing in fruits. Even a person who takes orchards on lease ought to have placed the requisite evidence through the land owner to say that his land or orchard had been leased. The claimants have surely not placed the best evidence possible. I am prepared to still hold that his income must be taken as larger than `15,000/- as taken by the Tribunal. I will consequently take the income at `2500/-, make a deduction of 1/3rd for personal expenses and take the FAO No. 51 of 1994 3 contribution to the family for the remaining and adopt a multiplier of 17 and hold the extent of dependency at `3,40,000/-. I will add another `10,000/- for loss of love and affection and other conventional heads such as loss to estate and funeral expenses. The amount determined in excess shall be paid to the minor and will be held in deposit till he attains majority. The interest shall be permitted to be withdrawn by the guardian holding the custody. The Tribunal shall secure appropriate proof from the person who applies to a Court for maintenance of the child that such person holds custody of the child. 4. Having regard to the finding already rendered that the insurance company shall not be liable to answer the claim for death of the passenger in a goods vehicle, the entitlement for enforcement arising under this award shall avail only against the owner of the tempo. 5. The cross-objection is allowed to the above extent. (K. KANNAN) JUDGE February 10, 2011 archana