FAO No. 1087 of 1988 and Cross Objection No.22-CII of 1989 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 1087 of 1988 and Cross Objection No.22-CII of 1989 Date of decision January 28, 2011 The Oriental Insurance Company Limited ....... Appellant Versus Smt. Birmah Devi and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Inderjeet Sharma, Advocate for Mr. Ravinder Arora, Advocate for the appellant. None for respondent Nos. 1 to 7. Mr. Neeraj Khanna, Advocate for Mr. L. M. Suri, Senior Advocate for respondent No.8-cross objector. Mr. Kunal Gar, Advocate for respondent Nos. 10 and 11. **** 1. Whether reporters of local papers may be allowed to see the judgment ?No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?Yes K. Kannan, J (oral). 1. The appeal is at the instance of the Insurance Company claiming that in a case where liability was restricted, the Tribunal had however, fastened the entire amount of compensation as determined FAO No. 1087 of 1988 and Cross Objection No.22-CII of 1989 2 to be payable by the insurer. The claim was at the instance of representative of a passenger in a bus that collided with the truck which was insured with the appellant Insurance Company. The Tribunal found the truck to be wholly responsible for the accident. While determining the compensation, the Tribunal found that the claimants were entitled to `2,01,600/-. The accident had taken place at the time when the Motor Vehicles Act, 1939 was operative. I have seen through the terms of the policy. The liability which was undertaken by the insurer was on a basic third party premium and therefore the liability must be taken as only `1,50,000/- as per the provisions of the 1939 Act. The amount determined in excess of `1,50,000/- with interest shall therefore become recoverable only against the owner of the truck that belonged to Haryana State Electricity Board. The appeal is allowed to the above extent. 2. There is a cross appeal by the insured against the determination of negligence against the driver. The cross appeal relating to negligence would be possible only if an appeal had been filed by the claimants. On the other hand, if an appeal is filed by one of the co- respondents before the Tribunal and if the Electricity Board as owner was aggrieved by the decision, it ought to have come on an independent appeal and cannot take the appeal filed by the insurer seeking for restriction of liability as an appeal in which it could have a redress. I would therefore find that the cross appeal itself is not maintainable. 3. Even as regards the issue of negligence, the Tribunal had considered the fact in the light of evidence and particularly of the fact that the criminal case has been registered only against the truck. The Tribunal also took note of the fact that bus was at the kacha portion of the road and it was the driver of the truck who had come to the wrong side and dashed against the bus. The FIR narrated the incident as resulting FAO No. 1087 of 1988 and Cross Objection No.22-CII of 1989 3 from the negligence of the driver of the truck and the Tribunal had also referred to the details found in the FIR for finding the issue of negligence. It is contended on behalf of the cross objector that driver of the bus had not been examined but the truck driver had examined himself to give his version. I cannot treat this as very material having regard to the weighty evidence placed by the claimants against the driver of the truck and which had been dealt with by the Tribunal. I do not find any error in the approach of the Tribunal as regards the finding relating to negligence of the truck driver. Cross objection is dismissed. (K. KANNAN) JUDGE January 28, 2011 archana