F.A.O.No.2497 of 1996 & Cross Objection Nos.48-CII of 1998. -1- In the High Court of Punjab & Haryana at Chandigarh. F.A.O.No.2497 of 1996. Date of decision:18-3-2008 Parvina and others. ...Petitioners. Versus Ash Mohammad and others. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present; None for the appellants. Mr. B. S. Rana Advocate for the cross-objectors. Mr. Neeraj Khanna Advocate for Mr. Ravinder Arora, Advocate for the Insurance Company. ... K. C. Puri, J. Judgment. Under challenge in this appeal is the award of Motor Accident Claims Tribunal, Gurgaon dated 20.7.1995 whereby he awarded compensation of Rs.1,92,000/- along with interest at the rate of 12% per annum from the date of filing the petition viz. 24.12.1991 till payment. F.A.O.No.2497 of 1996 & Cross Objection Nos.48-CII of 1998. -2- The facts of the case are that on 7.11.1993, Yusuf, since deceased, along with Majid, was going from village Badarpur to Delhi in four wheeler No.DL-IL-3664. The cleaner of the four wheeler was also sitting in the four wheeler. The four wheeler in question was being driven by Ash. Mohd, respondent No.1, rashly and negligently. When the four wheeler in question reached near the turning of Rozka, a truck reached there from the side of Nuh. It was being driven by its driver on the correct side of the road at a slow speed. The four wheeler in question hit the rear portion of the truck, as a result of which, serious injuries were suffered by Yusuf. Yusuf succumbed to the injuries. Respondent No.1 Ash Mohammad was driving the four wheeler in question during the course of employment of respondent No.2. It was insured with respondent No.3. The accident had taken place solely because of rash and negligent driving of four wheeler in question by respondent No.1. The petition was contested by the respondents. In the written statement filed by respondent Nos.1 and 2, it has been pleaded that no accident had taken place with the vehicle in question. Respondent No.2-A pleaded in the written statement,that according to lease agreement dated 31.7.1990, executed between him and respondent No.2, in case of accident, respondent No.2 was liable to pay damages. F.A.O.No.2497 of 1996 & Cross Objection Nos.48-CII of 1998. -3- Respondent No.3 in the written statement has averred that the driver of the four wheeler in question was not holding a valid driving licence and that he was not driving the same in the course of employment of the insured. It has also been pleaded that the insurance policy relating to the accident in question covered only third party risk. The deceased was accompanying the buffaloes in the four wheeler in question and was not covered under the insurance policy, issued by respondent No.3. On the pleadings of the parties, the following issues were framed by the learned Tribunal:- 1.Whether the accident in question took place on account of rash and negligent driving of Ash Mohd., respondent No.1, the driver of four wheeler No.DL-IL-3664? 2.Whether Yusuf died in the accident and the petitioners are entitled to claim compensation on account of the same. If so, to which extent and from whom? 3.Whether the insured violated the terms and conditions of the insurance policy. If so, its effect? 4.Relief. On 5.12.1994, the following additional issue No.3-A was framed by the learned Tribunal: 3-A.Whether the liability of the insurance company is limited?OPR. F.A.O.No.2497 of 1996 & Cross Objection Nos.48-CII of 1998. -4- On issue No.1, it was held that the accident in question in which Yusuf had died took place because of rash and negligent driving of respondent No.1. On issue No.3, it was held that respondent No.3 was not liable to indemnify the insured for the death of Yusuf. Issue No.3-A was not pressed during the course of arguments. On issue No.2, the income of Yusuf deceased was assessed at Rs.1,500/- and by applying a multiplier of 16, compensation of Rs.1,92,000/- was awarded to the claimants. The claimants were also awarded interest @ 12% per annum from the date of filing the petition viz. 24.12.1991, till payment. Respondent Nos.1 and 2 were jointly and severally held liable to pay the amount of compensation. Feeling aggrieved with the said award, the claimants have filed the present appeal. Respondent Nos. 1 and 2/cross objectors filed cross- objections with a prayer for the dismissal of the claim petition. Since both the appeal and the cross objections have arisen out of the same award of learned Tribunal, the same are being disposed of by this common judgment. I have heard arguments of counsel for the parties and have gone through the record of the case. The main stress of the cross-objectors, respondent Nos.1 and 2, Ash Mohammad and Maman is that liability to pay the amount should be of Insurance Company. The learned Tribunal has absolved F.A.O.No.2497 of 1996 & Cross Objection Nos.48-CII of 1998. -5- the Insurance Company on the ground that the deceased was travelling in a goods vehicle. However, it is submitted that the accident, in the present case, had taken place on 7.11.1993 i.e prior to the amendment of the Act. It is an admitted case of the parties that the deceased was the owner of the buffaloes being transported in the vehicle in question. In view of authority reported as Harish Chander and others V.Boti and others, 1999 ACJ 1174, the Insurance Company is liable. In reply to the above noted submissions, the learned counsel for the Insurance Company has submitted that the legal representatives of passengers are not entitled to claim the amount of compensation. In support of this contention, learned counsel for Insurance Company has relied upon authority reported as New India Assurance Company Versus Shri Satpal Singh and others, 2000(1) S.L.J.252. It is further submitted that the learned Tribunal has held that the driver was not holding a valid driving licence and on that count also,the Insurance Company is not liable to pay the amount of compensation. It is submitted that although the Insurance Company has not filed cross objections, the Insurance Company is well within its right to take the said plea under Order 41 Rule 22 CPP. I have carefully considered the said submissions and have gone through the record of the case. The claim petition has been accepted and the Insurance F.A.O.No.2497 of 1996 & Cross Objection Nos.48-CII of 1998. -6- Company has been absolved of its liability on the ground that the deceased was travelling in a goods vehicle. To properly appreciate the said controversy, the provisions of Section 147 of the Motor Vehicles Act are reproduced as under:- “Requirements of policies and limits of liability.(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; and (b) insures the the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place; Provided that a policy shall not be required- (i) to cover liability in respect of the death arising out of and in the course of his employment, of the employee of a F.A.O.No.2497 of 1996 & Cross Objection Nos.48-CII of 1998. -7- person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 ( 8 of 1923), in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle,or © if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any F.A.O.No.2497 of 1996 & Cross Objection Nos.48-CII of 1998. -8- liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b) the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.” From the perusal of Section 147(1)(i), it is clear that the Insurance Company is liable for death or bodily injury to any person including owners of the goods or any authorised representative carried in the vehicle. In authority reported as Harish Chander and others (supra) also, it has been held that the owner or the authorised agent of the goods can travel in the goods vehicle and the Insurance Company is liable to pay the compensation but the Insurance Company is not liable to pay the amount to other gratuitous passengers travelling in the goods vehicle. The authorities relied upon by the learned Tribunal relate to gratuitous passengers. Authority reported Shri Satpal Singh and others, (supra), relates to death or bodily injury to gratuitous passenger in the vehicle in question. So, I have no hesitation that the deceased F.A.O.No.2497 of 1996 & Cross Objection Nos.48-CII of 1998. -9- could travel in the vehicle in question but the Insurance Company is not liable to pay compensation as the learned Tribunal has held that the driver of the offending vehicle was not holding a valid driving licence. Although, the Insurance Company has not filed cross objections but in view of Order 41 Rule 22 CPC, the Insurance Company can defend the case on any ground to the effect that it is not liable to pay the amount of compensation on account of death of Yusuf, deceased. Therefore, in the light of above discussion, the cross objections filed by respondent Nos.1 and 2 are without any merit and deserve to be dismissed. So far as the appeal for enhancement of compensation is concerned, none has come on behalf of the appellants. From the perusal of the award, it is revealed that the amount of compensation has been correctly assessed by the learned Tribunal and as such no ground for enhancement in compensation has also been made out. Consequently, the appeal is also without any merit. In the light of what has been stated above, both the appeal and the cross objections are dismissed. A copy of this judgment be placed on the file of cross objections. March 18 ,2008. ( K. C. Puri ) Jaggi Judge