FAO No. 1602 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1602 of 1992 Date of decision 16.2.2010. Biswa Nath and another ...... Appellants. versus Oriental Insurance Company and others ...... Respondents. Present : Mr. V.K.Mahajan, Advocate for the appellants. Mr. Vishal Chaudhary, Advocate for respondent No.1. K.C.PURI. J. This is an appeal directed by the appellants-respondent Nos.1 and 2, for setting aside of the Award dated 13.5.1992 passed by Shri B.S.Bedi, learned Motor Accident Claims Tribunal, Ludhiana to the extent of fixation of their liability by the Tribunal. It is alleged by the claimant that he was employed as truck cleaner on truck No.JKR-5668 (in short – offending truck) with Bishwa Nath appellant-herein on Rs.1500/- per month as salary, besides charges for night-halt and other allowances. It is alleged that on 25.6.1989 at about 5.00a.m., the truck had left police station Sadar Khanna about 1 k.m. behind it and was heading towards Gobindgarh town on the G.T.Road. It is further alleged that due to rash and negligent driving by respondent No.1, the truck in question all of sudden over-turned, which was loaded with household FAO No. 1602 of 1992 2 goods. As a result thereof, the claimant fell down from the tool box of the truck and suffered multiple grievous injuries on his both legs. He was brought to C.M.C. Hospital, Ludhiana where both of his legs were amputated. The claimant therefore, filed claim petition claiming rupees seven lakhs as compensation from the respondents. On notice, respondent Nos.1 and 2 did not deny the factum of accident but denied that the same was occurred due to rash and negligent driving by appellant-respondent No.2. They further denied that the salary of the claimant was Rs.1500/- per month rather alleged that the same was Rs.500/- per month. They further denied their liability to pay the compensation amount to the claimant. Respondent No.3-Insurance Company denied its liability to pay any compensation whereas admitted that the truck in question was insured with the Company. Respondent No.3, ultimately prayed for dismissal of the petition. Following issues were framed :- 1. Whether Shri Sat Pal claimant sustained injuries in the accident caused by the rash and negligent driving of the truck No.JKR-5668 by Shiv Ram respondent No.2?OPP 2. Whether the claimant is entitled to claim compensation from the respondents, if so how much and from which of them ? OPP. 3. What is the liability of the insurance company ?OP Parties. 4. Whether the claimant is estopped by his act and conduct from filing this claim petition?OPR. FAO No. 1602 of 1992 3 5. Whether this Tribunal has got jurisdiction ?OPP. 6. Whether this claim petition is within time ?OPP. 7. Whether this claim petition is bad for mis-joinder of parties ?OPR. 8. Whether the claimant has no driving licence ? If so its effect ?OPR. 9. Whether respondent No.2 did not have a valid driving licence ? OPR. 10. Whether respondent No.2 was not driving the truck No.JKR- 5668 in the course of employment with the respondent No.1. If so its effect ?OPR. 11. Whether the delay in filing the claim petition deserves to be condoned ?OPR. 12. What is the effect of preliminary objection No.7 in the written statement of the respondent No.3 ?OPR-3. 13. Whether truck No.JKR-5668 did not have valid registration particulars and whether it was driven against the provisions of Motor Vehicles Act and whether it was driven against the provisions of Motor Vehicles Act and whether it was being driven in breach of the Insurance Policy conditions? If so its effect? OPR. 14.Whether the truck No.JKR-5668 did not have a fitness certificate, If so its effect?OPR. 15.Whether truck No.JKR-5668 was being used for the purpose otherwise than specified in the route permit and was being FAO No. 1602 of 1992 4 used for the purpose not covered under the said policy, if so its effect?OPR. The parties have led their respective evidence. The Tribunal partly accepted the claim petition with costs, directing respondent Nos.1 and 2 to pay Rs.2,19,280/- as compensation with interest @ 12% p.a. from the date of claim petition till realization. They were further directed to make payment of the above said amount jointly severally and co-extensive. The Insurance Company respondent No.3 was also directed to indemnify the respondent Nos.1 and 2 to the extent of Rs.1,58,364/- with interest at the above rate. Feeling dis-satisfied with the aforesaid award, the respondent Nos.1 and 2 -appellants preferred this appeal. I have heard the learned counsel for the parties and have gone thorough the records of the case. The Tribunal in this case held the Insurance Company liable to pay an amount of Rs.1,58,364/- calculated under the Workmen's Compensation Act, against the assessed amount of Rs.2,19,280/-. The remaining amount was ordered to be paid by respondent Nos.1 and 2. the said approach of the Tribunal cannot be accepted. The Tribunal once held that application under the Motor Vehicles Act is maintainable and there is a valid policy and valid driving licence, in that case the Tribunal should have ordered that the whole of the amount shall be paid by the Insurance Company jointly and severally with the owner and driver. The Tribunal has two options either to hold that application for compensation lies under the Workmen's Compensation Act or it lies under the Motor Vehicles Act. Once FAO No. 1602 of 1992 5 it is held by the Tribunal that application of the claimant is maintainable under the Motor Vehicles Act, in that case there was no justification for calculating amount of compensation in respect of injuries on the person of Sat Paul under the Workmen's Compensation Act. Consequently, the appeal preferred by the owner and driver stands accepted. The finding of the Tribunal to the effect that amount above Rs.1,58,366/- to be paid by respondent Nos.1 and 2 alone stands set aside and it is held that appellant driver and owner (who are appellants herein) and Insurance Company are jointly and severally liable to pay the compensation amount of Rs.2,19,280/-. The appeal stands disposed of accordingly. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February 16, 2010 sv