FAO No. 502 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 502 of 2010 in MACT No. 74 of 2005 Date of decision:1.11.2011 Roop Singh and Others Appellants v. Anand Kumari and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Sudhir Aggarwal, Advocate for the appellants Mr. Ashwani Talwar, Advocate for the Insurance Company- Respondent No.5 .... JITENDRA CHAUHAN.J This appeal has been filed by the appellants against the Award dated 12.6.2009 passed by the Motor Accident Claims Tribunal, Sirsa (for short the Tribunal). The brief facts of the case are that Anand Kumari and her three sons, claimants-respondents filed claim petition for grant of compensation under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) on account of death of Shanti Saroop husband of Anand Kumari in motor vehicular accident which occurred on 26.2.2005 at 9 a.m in the area of Police Station Raikot, District Ludhiana. At the time of alleged accident, Shanti Saroop was driving Maruti Car bearing registration No. DL-4CC-4631. It collided with a Sonalika Tractor bearing registration No. PB-25B-4441 driven by Surjit Singh @ Jeeta, in rash and negligent manner. As a result of the collision, occupants of the Maruti car died on the spot. FIR No. 34 of 2005 was registered against FAO No. 502 of 2010 2 Surjit Singh @ Jeeta, driver of Tractor, under sections 304-A/427 IPC at Police Station, Raikot. Respondent No.1, Insurance Company ( before the Ld. MACT) filed written statement admitting the accident in question. It was pleaded that the accident occurred due to rash and negligent driving of driver of Tractor, for which he is facing trial. It was further pleaded that respondent No.1 was not liable to idemnify the insured in question, on the ground that the Insurance Cover note bearing No. MON-002493 was not issued by the agent of respondent No.1 and the car in question was never insured with it. It was also pleaded that no policy for insurance of the car was ever issued by the said respondent. The liability to pay the compensation was denied by respondent No.1. Respondents No. 3 to 5 denied the accident and pleaded false implication of the driver of the tractor. From the pleadings of the parties, the following issues were framed:- 1. Whether the deceased namely Shanti Saroop son of Ram Ditta, died in consequence to the injuries received by him in a vehicular accident caused by the rash and negligent driving of the respondent No.5 namely Surjit Singh, while driving Tractor No. PB-25B-4441, if so to what effect ? OPP. 2. Whether the claimants are entitled to the compensation claimed by them in the instant petition, if so, from whom and to what extent? OPP 3. Whether the petitioners have got no cause of action to file the instant petition ? OPR FAO No. 502 of 2010 3 4. Whether the instant petition is not maintainable in the present form? OPR 5. Relief.” After appreciation of the evidence on record and the hearing the counsel for the parties, the Ld. Tribunal awarded total compensation to the tune of Rs. 3,64,000/- to the claimants. The petitioners were held entitled to interest at the rate of 9% per annum on the awarded amount from the date of filing of the petition in question, till payment. It was further ordered that the liability to pay the awarded amount shall be of respondents No. 3 to 5 jointly and severally (owners and driver of the offending tractor). Aggrieved against the same, the appellants-respondents have preferred this appeal. The only point involved in the appeal is as to who is liable to pay the compensation? Learned counsel for the appellants submitted that the Ld. Tribunal has awarded compensation to the tune of Rs. 3,64, 000/- to the claimants, which is on the higher side. It was further submitted that the approach of the Ld. Tribunal in fastening the liability jointly and severally on respondents No. 3 to 5 is illegal and not sustainable in the eyes of law. It was pointed out that the deceased Shanti Saroop died due to his own wrong driving of the Maruti Car and therefore, the appellant-respondents cannot be held liable to pay for the compensation. He pointed out that in a connected claim petition filed by claimants of Tilak Raj, deceased, the Tribunal held that both the vehicles were jointly and severally liable to pay the compensation. He further submitted that the Ld. Tribunal has not properly appreciated the facts and circumstances of the instant case. It was FAO No. 502 of 2010 4 prayed that the Award of the Ld. Tribunal may be set aside and case be remanded back for fresh decision. On the other hand, learned counsel for respondent No. 5 Insurance Company submitted that the cover note bearing Insurance No. MON-002493 was not issued by the agent of the Company and the car was never insured with it. He further submitted that though the Ld. Tribunal exonerated the Insurance Company from all liability, yet the Ld. Tribunal has not taken note of the pleadings of the Insurance Company that the Maruti Car was never insured with the Insurance Company and no policy for the said car was ever issued by the respondent No.5. I have heard the learned counsel for the parties and perused the record with their assistance. The Ld. Tribunal after appreciation of the evidence on record, awarded compensation to the tune of Rs. 3,64,000/- to the claimants. While deciding Issue No.2, the Ld. Tribunal observed as under :- “So far as the issue of liability of the respondents to pay the awarded compensation is concerned, I am of the opinion that since no negligence on the part of the deceased Shanti Saroop has either been pleaded or proved, the respondent No.1 is not liable to pay the awarded compensation to the petitioners No. 1 to 4. Hence, the liability to pay the awarded compensation to the said petitioners is held to be of the Respondents No. 3 to 5, jointly and severally, in their own capacity as well as the Legal Representatives of the Respondent No.2, since deceased. I decide the instant issue accordingly, in FAO No. 502 of 2010 5 favour of the petitioners and against the respondents No. 3 to 5. A perusal of the above findings of the Ld. Tribunal shows that in the instant case, respondent No.1 i.e. the Insurance Company has been absolved of the liability to pay compensation to the claimants. Only respondents No. 3 to 5 have been fastened with the liability to pay the compensation. It is pertinent to mention that on the date of accident, Tilak Raj was also traveling in the car in question, which was being driven by deceased Shanti Saroop. Shanti Saroop and Tilak Raj were brothers. In the claim petition No. 71 of 2005 titled “Madhu Bala and Others v. Shanti Saroop and Others'', the Ld. Tribunal held, while deciding the Issue No. 1 “Whether Tilak Raj died of the injuries allegedly suffered by him in a vehicular accident caused by car bearing registration No. DL-4CC-4631”, in para 13 of the Award dated 12.6.2009 ( In FAO No. 501 of 2010 ) that the accident in question was caused by the use of the above stated two vehicles, that too on the date, time and place pleaded by the petitioners. The Ld. Tribunal has given different findings of similar accident. In the one case, it observed that all the respondents are jointly and severally liable to pay the compensation whereas in other case, it held that only respondents No. 3 to 5 are jointly and severally liable to pay the compensation. The Ld. Tribunal has passed the Award dated 12.6.2009 on mis-appreciation of evidence as is clear from the facts and circumstances of the present case. In FAO Nos. 5057 of 2009 and 501 of 2010 arising out of the same accident, this Court, vide judgment of even date also set aside the impugned Award dated 12.6.2009 passed in MACT No. 71 of 2005 and remitted the case back to the Learned Tribunal for decision afresh, FAO No. 502 of 2010 6 according to law. In such a situation, this Court feels that ends of justice would be met if the Award dated 12.6.2009 passed by the Ld. Tribunal is set aside and it be directed to decide the claim petition afresh as per provisions of the Act. Accordingly, this appeal is allowed. Impugned Award dated 12.6.2009 passed by the Ld. Tribunal is set aside and the case is remitted back to the Ld. Tribunal for fresh decision, preferably within six months. Parties through their counsel are directed to appear before the Ld. Tribunal on 19.12.2011. (JITENDRA CHAUHAN) JUDGE 1.11.2011 MS