IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO 976/2009(O&M) Date of Decision:17.3.2009. New India Assurance Co.Ltd. ..........Appellant Versus Geeta Malik and others. ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr. Paul S.Saini,Advocate for the appellant-Insurance Company. JASWANT SINGH,J CM No.4159-CII of 2009 is allowed and delay of 14 days in filing the appeal is condoned. Appellant-Insurance Company is in appeal against the award dated 20.9.2008 passed by learned Motor Accident Claims Tribunal, Gurgaon (hereinafter referred to as the Tribunal) whereby the claim petition under Section 166 of the Motor Vehicles Act, 1988 filed by claimants, being the widow and son of deceased N.C.Malik, was partly allowed and they were granted compensation to the tune of Rs.15,16,000/- for the death of said N.C.Malik in a motor vehicular accident that took place on 24.12.2005 involving the offending truck bearing registration no.JH-05A-7102 and KA- 25-TC-113 (earlier Temporary Registration Number) insured by the appellant and the Maruti Esteem Car bearing Registration No.PBC-1E-5692 being driven by the deceased. However, since the driver of the offending vehicle was found not FAO 976/2009(O&M) -2- having a valid driving licence, the appellant Insurance Company was held entitled to recover the compensation awarded from the driver and owner of the offending vehicle, by way of execution. It is submitted by the learned counsel for the appellant that the learned Tribunal erred in holding that the accident took place due to rash and negligent driving of the offending truck, as the evidence of sole eye witness Mool Chand PW2, does not inspire any confidence. It is further submitted that learned Tribunal fell in error in fastening the liability upon the appellant-Insurance Company, especially when the driver of the offending vehicle was not possessing a valid driving licence at the time of accident. It is also submitted that the amount of compensation awarded is on the higher side. After hearing the learned counsel for the appellant and perusing the record, I find no merit in these submissions of the learned counsel for the appellant. In order to prove rash and negligent driving, claimants examined one Mool Chand as PW-2. Said Mool Chand, in his examination in chief categorically deposed that at the time of accident in question on 24.12.2005, he was occupying the back seat of car (Maruti Esteem bearing Registration No.PBC-1E-5692) being driven by deceased N.C.Malik and at that time the offending vehicle driven in a rash and negligent manner and at a very high speed hit the said car from the front side, as a result of which he alongwith deceased N.C.Malik received injuries. After taking lift in a car, he brought FAO 976/2009(O&M) -3- said N.C.Malik to G.M.C.H., Sector 32,Chandigarh, where doctors declared said N.C.Malik as having been brought as dead. This witness had also reported the matter to the police and was admitted in P.G.I, Chandigarh for his injuries sustained in the accident. To rebut the evidence of this witness, respondents did not lead any evidence and even driver of the offending vehicle did not step into the witness box to deny rash and negligent driving on his part. It has come on record that in the FIR (Ex.P1) lodged on the same day the particulars of offending Truck have been mentioned and the offending vehicle was taken in police custody from the spot and got mechanically examined on 24.12.2005 itself. Taking into consideration the oral as well as other documentary evidence led by claimants in support of their plea that accident took place due to rash and negligent driving by respondent no.1, in my considered opinion, the learned Tribunal rightly held driver of the offending truck responsible for the accident in question. Regarding the fastening of liability upon the appellant-Insurance Company, suffice it to say that taking note of the fact that at the time of accident the driver of the offending truck was not holding a valid driving licence, appellant-Insurance Company has been granted right to recover the compensation amount from the driver and owner. In view of the well settled law that in such cases, the Insurance Company would initially indemnify the award and thereafter may recover the same from the driver/owner, by way of execution, no fault can be found with the impugned award on this count. So far as assessing the compensation is concerned, it has come on record that at the time of his death, the deceased, a Bachelor of Science in FAO 976/2009(O&M) -4- Dairy Technology, was working with a multi national company namely M/s Glaxo Smithkline Consumer Health Care Ltd., Baddi was getting monthly emoluments to the tune of Rs.1,08,000/- (which included HRA of Rs.15,750/-, Telephone expenses of Rs.1000/- and Transportation charges of Rs.21,150/-). On the basis of salary slips of the deceased for the months of October to December 2005 (Ex.PW3/B-1 to Ex.PW3/B-3), income tax returns Ex.PW1/E and Ex.PW1/F, the learned Tribunal, after deducting the HRA, Transportation charges and telephone charges as well as 1/3rd towards personal expenses assessed the monthly dependency of the claimants at Rs.47,000/- per month. Nothing contrary to the aforesaid documentary evidence was produced by the respondents from which it may be inferred that the deceased was not getting monthly emoluments to the tune of Rs.1,08,000/-. Accordingly, no fault can be found with the dependency arrived at by the learned Tribunal. No other point has been raised. For the reasons stated above,finding no merit in this appeal the same is hereby dismissed in limine. 17.3.2009. (Jaswant Singh) joshi Judge