FAO No. 501 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 501 of 2010 in MACT No. 71 of 2005 Date of decision:1.11.2011 1.FAO No. 501 of 2010 Roop Singh and Another Appellants v. Smt. Madhu Bala and Others Respondents 2.FAO No. 5057 of 2009 Royal Sunderam Alliance Insurance Co. Ltd. Appellant v. Smt. Madhu Bala and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Sudhir Aggarwal, Advocate for the appellants Mr. Ashwani Talwar, Advocate for the Insurance Company- Respondent No.5 .... JITENDRA CHAUHAN.J These appeals (FAO No. 5057 of 2009 and 501 of 2010) have been filed by the appellants-respondents against the common Award dated 12.6.2009 passed by the Motor Accident Claims Tribunal, Sirsa (for short the Tribunal) arising out of the same accident. For the sake of reference, facts are being taken from FAO No. 501 of 2010. The brief facts of case of the are that Madhu Bala and her two minor children, claimants filed claim petition for grant of compensation under section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) on account of accidental death of Tilak Raj, husband of Madhu Bala in motor vehicular accident which occurred on 26.2.2005 at 9 a.m in the area of Police Station Raikot, District Ludhiana. At the time of FAO No. 501 of 2010 2 alleged accident, Tilak Raj was traveling in a Maruti Car bearing registration No. DL-4CC-4631 driven by one Shanti Saroop. It collided with a Sonalika Tractor bearing registration No. PB-25B-4441 driven by Surjit Singh @ Jeeta, in rash and negligent manner, as a result of which the occupants of the Maruti Car died on the spot. FIR No. 34 of 2005 was registered against Surjit Singh @ Jeeta, driver of Tractor, under sections 304-A/427 IPC at Police Station, Raikot. Respondent No.1 Smt. Anand Kumari, widow of Shanti Saroop, owner of Maruti Car, filed written statement admitting the accident in question. It was pleaded that the accident occurred due to rash and negligent driving of driver of Tractor. Respondent No.3, Insurance Company with whom the Maruti Car was claimed to be insured admitted the accident and pleaded that it was caused by the rash and negligent driving of the tractor driver, for which he was facing trial. It was further pleaded by respondent No. 3 that it was not liable to idemnify the insured in question, on the ground that the Insurance Cover note bearing No. MON-002493 was not issued by the agent of respondent No.3 and the car in question was never insured with it. It was also pleaded that no policy for insurance of the car was ever issued by the said respondent. The liability to pay the compensation was denied by respondent No.3. Respondents No. 4 & 5 denied the accident and pleaded false implication of the driver of the tractor. From the pleadings of the parties, the following issues were framed:- 1. Whether the deceased Tilak Raj died of the injures allegedly FAO No. 501 of 2010 3 suffered by him in a vehicular accident caused b car bearing registration No. DL-4CC-4631 if so to what effect/ OPP. 2. Whether the claimants are entitled to the compensation claimed by them in the instant petition, if so, from whom and to what extent? OPP 3. Whether the present petition is bad for non-joinder and mis- joinder of necessary parties? OPR-2 4. Whether the petitioners have got no cause of action to file the instant petition? OPR-4 and 5 5. Whether the instant petition is not maintainable in the present form? OPR 6. Relief.” After appreciation of the evidence on record and the hearing the counsel for the parties, the Ld. Tribunal awarded total compensation to the tune of Rs. 4,11,000/-. The petitioners were held entitled to interest at the rate of 9% per annum upon the awarded amount from the date of filing of petition in question, till payment. It was further ordered that the liability to pay the awarded amount shall be that of all the respondents, jointly and severally. Aggrieved against the same, the appellants-respondents have preferred this appeal. The only point involved in the appeal is as to who is liable to pay the compensation? Learned counsel for the appellants submitted that the Ld. Tribunal has wrongly awarded compensation to the tune of Rs. 4,11,000/- to the claimants. It was further submitted that the approach of the Ld. FAO No. 501 of 2010 4 Tribunal in fastening the liability jointly and severally on all the respondents is patently illegal and not sustainable in the eyes of law. It was pointed out that the claim petition was filed under section 163-A of the Act and as per the provisions of the Act, a person can claim compensation from the owner of the motor vehicle of the authorized insurer. He submitted that at the time of accident, deceased Tilak Raj was traveling in Maruti Car No. DL-4CC-4631 and as per the provisions of the Act, the claimants should claim compensation from the owner of Maruti car or the Insurance company. He further submitted that the Ld. Tribunal has not appreciated this fact and wrongly fastened the liability upon the appellants. It was argued that Ld. Tribunal has awarded compensation on higher side in the absence of any cogent evidence regarding income of the deceased Tilak Raj. It was prayed that the Award of the Ld. Tribunal may be set aside and case be remanded back for fresh decision. On the other hand, learned counsel for respondent No. 5 Insurance Company submitted that the appellants have produced one cover note showing that the vehicle in question was insured with the Insurance Company, but on verification, it was found to be a forged document. He further submitted that the Ld. Tribunal has not given weight to the pleadings of the Insurance Company that the Maruti Car was never insured with the Insurance Company and no policy for the said car was ever issued by the respondent No.5. He points out that the Award of the Ld. Tribunal suffers from material infirmities and the same may be set aside. I have heard the learned counsel for the parties and perused the record with their assistance. The Ld. Tribunal, after appreciation of the evidence on record, FAO No. 501 of 2010 5 awarded compensation to the tune of Rs. 4,11,000/- to the claimants. While deciding Issue No.2, the Ld. Tribunal observed as under :- “So far as the issue of liability of the respondents to pay the awarded compensation is concerned, I am of the opinion that their liability, as per the settled law, they being the joint tortfeasures, is joint and several. The argument of Sh. Gera that the car in question was not insured with the respondent No.3, cannot be accepted for the simple reason that the petitioners have produced the insurance cover note mark RA on the record. However, to prove its stand, the respondent NO.3 has produced RW1-Parveen Kumar. The said witness has merely deposed that the car in question, was not insured with the said respondent. It has also been deposed by the said witness that the document, Mark RA was not issued by the respondent No.3. However, in his cross-examination, the said witness has deposed that he had not brought the cover note dated 4.3.2004 issued by the agent having Code No. 146 of Delhi Branch managed by the respondent No.3. He was also not in a position to depose as to whether the said number was issued to any agent. At the same time, he admitted in his cross-examination that the signatures of the authorized signatory, upon the document Mark RA, were identical to the signatures on the cover notes is Ex. R1 to R10 dated 30.3.2003 to 31.3.2003. He has also admitted that there was nothing FAO No. 501 of 2010 6 on record to prove that the cover notes issued by the respondent No.3 were in 7 digits. Furthermore, the person who had issued the document Mark RA, being the authorized signatory of the respondent NO.3, has not been produced as a witness. He was the best person to tell as to whether the said cover note was issued by him or not. In his absence, the testimony of RW1 cannot be relied upon. Hence, the documents Ex.R1 to R10 cannot be of any help to respondent No.3. Therefore, the liability to pay the awarded compensation, so far as the respondents are concerned, is held to be joint and several. I decide the instant issue accordingly in favour of the petitioners and against the respondents.” A perusal of the above findings of the Ld. Tribunal shows that while assessing the income of the deceased Tilak Raj, the Ld. Tribunal has not considered the pleadings of the appellants that under section 163-A of the Act, the claimants should claim the compensation from the owner or the Insurer of the Maruti Car. It has wrongly fastened the liability upon all the respondents. The Ld. Tribunal has awarded the compensation on mis -appreciation of evidence which is clear from the facts and circumstances of the present case. In view of the above, this Court feels that ends of justice would be met if the Awards dated 12.6.2009 passed by the Ld. Tribunal are set aside and it be directed to decide the claim petitions afresh as per provisions of the Act. The Ld. Tribunal will determine the liability of the respondents FAO No. 501 of 2010 7 to pay the compensation in view of the stand taken by the Insurance Company of the car in question. In FAO No. 502 of 2010 arising out of the same accident, this Court vide judgment of even date has also set aside the impugned Award dated 12.6.2009 passed in MACT No. 74 of 2005 and remitted the case back to the learned Tribunal for decision afresh, according to law. Accordingly, these appeals ( Nos. 5057 of 2009 and 501 of 2010) are allowed. Impugned Award dated 12.6.2009 passed in MACT No. 71 of 2005 titled “Madhu Bala and Others v. Shanti Saroop and Others” is set aside and the cases are remitted back to the Ld. Tribunal for fresh decision preferably within six months. A statutory amount of Rs. 25,000/- each has been awarded in appeal bearing FAO Nos. 501 and 502 of 2010, which shall be refunded to the appellants. Parties through their counsel are directed to appear before the Ld. Tribunal on 19.12.2011. (JITENDRA CHAUHAN) JUDGE 1.11.2011 MS