IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.843 of 1989 (O&M) Date of decision:12.01.2011 Bhalle Ram and another ....Appellants versus M/s Vardhman Rice and General Mills and another ..Respondents II. FAO No.844 of 1989 (O&M) Smt. Parvati and others ....Appellants versus M/s Shri Vardhaman Rice and General Mills and another ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Nitin Jain, Advocate, for Mr.Chater Bhuj Goel, Advocate, for the appellants. None for respondent No.1. Mr. Paul S. Saini, Advocate, for respondent No.2 ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J.(Oral) 1. Both the cases arise out of a same accident. FAO No.843 of 1989 is for the death of a Cleaner in a truck and FAO No.844 of 1989 is for the death of a driver of the truck. The accident was said to have FAO No.843 of 1989 (O&M) - 2 - taken place when the truck driven by the deceased was attempting to overtake yet another truck and on seeing that there was another truck coming from the opposite direction and a collision would have become inevitable, the drivers swerved the vehicle to a further right and dashed against a neem tree. Both, the driver and the Cleaner died. 2. The petitions had been filed by the respective representatives of the deceased contending that the driver of the vehicle coming from the opposite direction was responsible for the accident and that the driver of the truck, in which both the deceased were travelling, was not in any way negligent. The Tribunal found that, under the circumstances, the appropriate remedy would be only to apply for compensation under the Workmen's Compensation Act. This direction for prosecution of a case before the WC Act could have been justified for the claim arising from the death of a driver, who had caused the accident, but as far as the Cleaner was concerned, that petition could not have been dismissed on the ultimate finding of the Tribunal. It should have only held that if the driver of the truck was responsible for the accident by dashing against a neem tree, representatives of the deceased-Cleaner were still entitled to compensation before the MACT. There was admittedly valid insurance including the liability for the act of a driver under the WC Act. The deceased-Cleaner was said to be earning Rs.800/- and the claimants were the parents, aged 40 plus. I would take 50% of the amount as going towards personal expenses and take the contribution to the family at Rs.400/-. The extent of loss of dependency would be Rs.67,200/-. I would take another Rs.5,000/- towards loss to FAO No.843 of 1989 (O&M) - 3 - estate and funeral expenses and hold the compensation payable at Rs.72,200/-. The Tribunal has already awarded Rs.15,000/- on no fault basis and I would hold the amount in excess of what has been determined by the Tribunal shall attract interest at 6% from the date of petition till date of payment and payable to the claimants. The appeal is allowed to the above extent. 3. As regards the claim for compensation at the instance of the representatives of the driver, in the ultimate finding rendered by the Tribunal directing that the case can be prosecuted only before the WC Act, the appropriate remedy must have been availed after the direction of the Tribunal. Unfortunately the case has stood on for 22 years before this Court and it will be futile to relegate the parties to proceed under the WC Act. This Court is a Court of appeal under Section 30 of the WC Act, I would, therefore, apply the scale of compensation as claimable under the WC Act and proceed to determine the compensation as follows. The deceased was aged 27 years and he was said to be earning Rs.1,500/- per month. The employer has also to be examined in this case to say that the driver was earning Rs.1,500/- and I take the income to be so. The appropriate factor is 213.57. The compensation will, therefore, be Rs.1,60,177.50. The interest payable at that relevant point of time was 6% under the Act and the same will be awarded also to the claimants from the expiry of 1 month from the date of accident till date of payment. While making the Insurance Company liable, the amount of Rs.15,000/- with interest already awarded and paid shall be given due credit. 4. The counsel for the Insurance Company will contest the case FAO No.843 of 1989 (O&M) - 4 - of award of interest on the ground that the primary liability was on the employer and it cannot fasten on the insurer. It is further contended that the award of interest could be made only from the date when an adjudication is made and not earlier. 5. Both these contentions are rejected for the following reason. The law has been settled through the decision of the Hon'ble Supreme Court in Pratap Narain Singh Deo Versus Srinivas Sabata and another-(1976) 1 SCC 289 and Ved Parkash Garg Versus Premi Devi- (1997) 8 SCC 1. The liability to pay penalty could be denied but not interest. This case has stood over 2 decades for satisfying a claim for death of a driver who was clearly covered by the terms of policy. It is preposterous to contend that there is no liability to pay interest. I have not been shown through any term of contract excluding liability to pay interest. There is no justification for giving the insurer any benefit to the detriment of claimants. 6. Both the appeals are allowed with costs of Rs.5,000/- in each case. (K.KANNAN) JUDGE 12.01.2011 sanjeev