FAO No.820 of 1989 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.820 of 1989 Date of Decision. 05.01.2011 Jasbir Singh son of Shri Bahadur Singh, House No.224, Antartyami Colony, Chattewind Gate, Amritsar ......Appellant Versus Sham Lal driver, resident of Chowk Pheruman, Rayya, Tehsil and District Amritsar and another ......Respondents Present: Mr. V.K. Kaushal, Advocate and Mr. B.R. Mahajan, Advocate for the appellant. None for respondent No.1. Mr. L.M. Suri, Senior Advocate with Mr. Ravinder Arora, Advocate for respondent No2. 2. FAO No.1011 of 1989 Harvinder Singh Gill s/o Gurbachan Singh r/o 707, Model Towan, Jalandhar ......Appellant Versus Satnam Kaur wd/o Gurcharan Singh and others ......Respondents 3. FAO No.1012 of 1989 Harvinder Singh Gill s/o Gurbachan Singh r/o 707, Model Towan, Jalandhar ......Appellant Versus Jasbir Kaur wd/o Harbhajan Singh and others ......Respondents 4. FAO No.1013 of 1989 Harvinder Singh Gill s/o Gurbachan Singh r/o 707, Model Towan, Jalandhar ......Appellant Versus Swaran Kaur wd/o Sardul Singh and others ......Respondents Present: Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. FAO No.820 of 1989 -2- Mr. V.K. Kaushal, Advocate and Mr. B.R. Mahajan, Advocate for the claimants-respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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. All these appeals arise out of the same accident. It is a case of collision between two vehicles namely matador van and truck. Three persons travelling in the matador van died and FAO Nos.1011 to 1013 relate to claim for compensation awarded to the representatives of the deceased persons. FAO No.820 is at the instance of the owner of the matador van which had been damaged. The petition had been dismissed for a claim made by the owner to the effect that he had suffered loss of income on account of damage to the vehicle. 2. The appeals in FAO No.1011 to 1013 are filed jointly and severally by the owner-insured and the insurer. The counsel appearing for the appellants seeks for permission for transposition of the insurance company as a respondent , aware as he is that the Hon'ble Supreme Court has held in Chinnama George and others Vs. N.K. Raj and another 2000(4) SCC 130 that a joint appeal by the owner and the insurer is not maintainable. Learned counsel appearing for the respondents states that a joint appeal is not maintainable and relies on a decision of the Hon'ble Supreme Court in R. Mannkatti and others Vs. M. Subramanian and another 2006(2) PLR 827 and National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and others FAO No.820 of 1989 -3- 2002(6) Scale 569. I have no difficulty in accepting the position that the joint appeal is not maintainable but there is no law that prohibits transposition which is the power of the Court to do complete justice. Even an owner of the vehicle could be treated as an aggrieved person against the award, no matter that there is a valid policy of insurance. I direct that the insurance company in FAO Nos.1011 to 1013 as appellant shall be transposed as respondent along with the claimants and the appeals will be taken as being prosecuted only by the owner of the truck. The registry shall carry out amendment to the memo of parties accordingly. 2. As regards the quantum in FAO No.1011 of 1989, the claim is for death of an employee in a private cycle company earning Rs.1900/-. The claimant was a widow and the Tribunal had adopted a multiplier of 20 to determine the compensation. Learned Senior Counsel for the appellant contends that the appropriate multiplier would have been only 14 and the choice of multiplier is erroneous. Learned counsel appearing for the insurance company, however, contends that he was working in a leading cycle manufacturing company and there was a definite prospect of increase in emoluments. He would contend, therefore, that if a 30% increase were to be made in the manner suggested by the decision of Hon'ble Supreme Court in Sarla Verma Vs. DTC 2009(6) SCC 121, a lesser multiplier could not have made a difference. I take the average income of the deceased at Rs.2500/-, deduct 1/4th for personal expenses and take the contribution as Rs.1874/-. I will adopt a multiplier of 13 and find the loss of dependency at Rs.2,92,500/-. I will add another Rs.5,000/- for loss of FAO No.820 of 1989 -4- consortium, Rs.7500/- for loss of love and affection to the children. I will add further sum of Rs.2500/- for loss to estate and Rs.2,000/- for funeral expenses. In all, the total amount that will become payable would be Rs.3,09,500/-. The amount of compensation already determined by the Tribunal shall stand reduced to the extent as above. 3. As regards the subject matter of appeal in FAO No.1012 of 1989, the deceased was aged 50 years and the deceased was owner of a factory making an earning of Rs.4,000/- and contributing Rs.2,000/- to the wife for expenses. I take the amount as given in her evidence as the extent of dependence to the wife and adopt a multiplier of 13 to hold the loss of dependency at Rs.2,08,000/-. I will provide Rs.12,000/- towards loss of consortium and loss to estate and funeral expenses and the amount of compensation that will become payable would be Rs.2,20,000/-. The amount already determined shall also stand reduced as above. 4. As regards the claim for compensation which is the subject matter in FAO No.1013 of 1987, the deceased was 70 years of age and the claimant was the widow. The Tribunal had fixed Rs.90,000/- as compensation and I do not wish to make any modification with reference to the same. 5. The appeals in FAO No.1011 and 1012 are allowed and the appeal in FAO No.1013 is dismissed. The liability shall be on the insurance company which was involved in the accident. 6. FAO No.820 of 1987 relates to the claim for loss of business during the time when the vehicle was not put to use. A petition for compensation before the Tribunal itself is incompetent, for appropriate FAO No.820 of 1989 -5- remedy would have been only a civil suit. There is no power under Section 165 to 168 of the Motor Vehicles Act for a Court to determine a compensation for loss of business for a non-use of the vehicle by damage caused to it. While dealing with the case under Section 119(1) of the Motor Vehicles Act, 1939 in General Manager, Kerala State Road Transport Corporation Vs. K.P. Saradamma AIR 1989 Ker.23, the Kerala High Court reasoned that damages to property accruing under the proviso in the said Section takes within its ambit only the direct damage to a property. If there is any claim for damages suffered by the owner of the motor vehicle, which was involved in the accident apart from the claim for damages to the vehicle, it will have to only avail a suit before a Civil Court since the Motor Accident Claims Tribunal itself has no jurisdiction to consider such a claim. The same view had also been taken by the Madhya Pradesh High Court in Kishori Vs. Chairman, Tribal Services Co-op Society Ltd. 1996 Acc CJ 562. The appeal is, therefore, dismissed. (K. KANNAN) JUDGE January 05, 2011 Pankaj*