FAO No. 1049 of 1987 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1049 of 1987 (O&M) Date of decision: February 22 ,2010 Walia Tourist & Taxi Service and another .. Appellants v. State of Punjab and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. R. M. Suri, Advocate for the appellants. Mr. Palvinder Singh, Senior Deputy Advocate General, Punjab. ... Rajesh Bindal J. At the commencement of hearing, learned counsel for the appellants submitted that the present appeal be considered only on behalf of appellant No. 1 and qua appellant No. 2, the same may be treated as dismissed in view of the enunciation of law in H. S. Ahammed Hussain and anothers v. Irfan Ahammed and others, (2002-3) 132 PLR 297 and Gill Sandhu Transport Company and another v. Ram Piari and others, (2007-1) 145 PLR 139. Learned counsel for the respondents does not have any objection to the prayer made by learned counsel for the appellants being granted. However, in the circumstances, the fact would remain that there may be technical defect in the appeal, namely, the Insurance Company, who was one of the claimants before Motor Accidents Claims Tribunal, Ropar (for short, `the Tribunal') would not be a party before this Court in appeal. Be that as it may, still this court proceeds to consider the claim set up by the owner of the vehicle on merits. Challenge in the present appeal is to the award dated 28.4.1987, passed by the learned Tribunal, whereby the claim petition filed by the appellant along with the Insurance Company for compensation from the State of Punjab on account of damage to the vehicle in a road accident, was dismissed. The claim arose on account of a road accident between the car owned by appellant-Walia Tourist & Taxi Service (hereinafter described as `the appellant') with Punjab Roadways bus on 6.8.1985, in which the car was damaged. FAO No. 1049 of 1987 [2] The same having been insured by the New India Assurance Company Limited, the appellant has already been reimbursed the amount of compensation by the Insurance Company to his satisfaction, but still a claim petition was filed by the appellant along with the Insurance Company before the Tribunal claiming compensation from the State raising the plea that the accident had taken place on account of rash and negligent driving of the bus and the driver of the bus, being a tort-feaser, the appellant as well as the Insurance Company were entitled to get the compensation from the respondents. The claim having been rejected, the appeal was filed before this Court by the appellant as well as the Insurance Company jointly. Learned counsel for the appellant submitted that the findings of the learned Tribunal on the issue of negligence are totally perverse. It is a case in which the accident took place solely on account of negligence of the bus driver, but still the claim petition was dismissed by recording a finding of negligence against the appellant. He further submitted that even on account of damage to the property, claim petition can be filed before the Tribunal under the Motor Vehicles Act, 1939 (for short, `the Act'). The issue as regards the quantum of compensation has not been dealt with at all. The opinion formed by the learned Tribunal that the case was bad on account of non-joinder of the driver of the vehicle is liable to be set aside as in the present case, the claim was only with regard to the damage to the vehicle and not for any bodily injury. It was further submitted that even if the claim of the appellant had been settled by the Insurance Company, still a claim petition could be filed by the appellant before the learned Tribunal against the tort- feaser and the issue as to whom that amount would be payable or as to how the dispute with the Insurance Company then will be settled, is a matter between the insurer and the insured and the claim cannot be rejected on that ground. Reliance was placed upon The State of Assam v. Urmila Datta and others, 1974 ACJ 414 (Assam), Prafulla Kumar Misra and another v. Balram Sahu and others, 1975 ACJ 29 (Orissa), Wing Commander J. S. Sodhi v. Lt. Col. I. S. Deol and another, 1977 ACJ 64 (P&H) and Hari Industries v. Roshan Lal Kothari and others, 1987 ACJ 20 (Rajasthan). On the other hand, learned counsel for the respondents submitted that once the Insurance Company is deleted from the array of parties, the appeal is liable to be dismissed on account of non-joinder of necessary parties. Once the claim of the appellant had been settled by the Insurance Company, there was no cause of action sustaining with the appellant to have filed the claim petition before the Tribunal. As regards negligence, it was submitted that only the driver of the car FAO No. 1049 of 1987 [3] was produced and it was only his self-serving statement holding the driver of the bus negligent, but the fact that it is the driver of the car who was negligent, is established from the fact that though the vehicle in question was treated as totally damaged and the compensation was paid to the appellant by the Insurance Company on that account, still no claim petition was filed on account of any injury suffered either by the driver or the passenger travelling in the car. The passenger was not even produced in the court as a witness in support of the plea of negligence. The onus of the issue, being on the claimants, the same having not been discharged, the respondents cannot be held liable. Heard learned counsel for the parties and perused the relevant referred record. Though the provisions of Section 110 of the Act, which was in force when the accident took place, provide for payment of compensation on account of damage to the property, but still it cannot be disputed that human life is more valuable than any property. In the present case, the accident between car bearing No. CHZ-31 took place with a Punjab Roadways bus bearing No. PJG-1317. It is an admitted fact that the car was treated as total loss. The car was insured comprehensively for a sum of Rs. 70,000/-. The year of manufacture of the car was 1983. The accident in question took place on 6.8.1985, nearly two years after its purchase, as the date of first registration was 26.9.1983. On the request of the appellant, the Insurance Company appointed a Surveyor to assess the loss. The Surveyor assessed the amount of compensation payable to the appellant as Rs. 33,193.70, even though the appellant had submitted a claim of Rs. 66,520/-. The Surveyor found damage to the car to be quite substantial. The engine of the car was found to have been pushed back by 3” after breaking the foundation. It was further mentioned by the Surveyor in his report (Ex. P12) that market value of the car at that time was nearly Rs. 50,000/- to Rs. 55,000/-. It was further opined that considering the damage to the car, the insured-appellant was interested in finalising the case on total loss basis. As the value of the car on the date of accident was assessed between Rs. 50,000/- to Rs. 55,000/- and even salvage value of the damaged car was Rs. 20,000/-, which would have remained with the Insurance Company, the claim was proposed to be settled at Rs. 50,000/-. The appellant agreed for settlement of the claim for Rs. 50,000/-. The statement to that effect was produced by the appellant himself on record as Ex. P14. The text thereof is as under: “ I agree to accept the sum of Rs. 50,000/- (Rupees Fifty Thousand) as Total Loss in full and final settlement of my car (Taxi) FAO No. 1049 of 1987 [4] claim for damages which occurred on 6.8.85 near Desu Majra on Chandigarh-Ropar Road, subject to the terms and conditions of the policy. Salvage will be the property of the Insurer. I also agree that I shall not press or submit any supplementary claim for said accident. The settlement is subject to the acceptance of the liability by the Insurance Co.” A perusal of the aforesaid undertaking by the appellant shows that acceptance of claim was subject to the Insurance Company accepting its liability. It is not in dispute that amount of Rs. 50,000/- was paid to the appellant by the Insurance Company and the vehicle was retained by it, which may have ultimately been sold as salvage, and as per the estimates produced on record, the amount of compensation paid by the Insurance Company for damage to the car was merely Rs. 30,000/- as the salvage value was assessed at Rs. 20,000/-. It is also a fact on record that even though the car was claimed to be a total loss in the accident, but there was no amount claimed as compensation on account of the injuries suffered either by the driver or the passenger travelling in the car. Even the photographs on record suggest that the accident was quite serious. Meaning thereby that the driver of the car may be negligent and the Insurance Company also considered these facts and settled the claim accordingly. In the present case as the facts exist today, the Insurance Company did not file any claim against the State of Punjab seeking reimbursement of the amount of compensation paid to the insured and it is only the insured who has come to the court seeking compensation from the State of Punjab, the owner of the bus, which was involved in the accident, even though he had already been compensated for the loss suffered to his satisfaction and no one having suffered any injury in the accident in question, in the peculiar facts of this case, after about 2-1/2 decades of the accident, I do not find any reason to interfere with the impugned award. Accordingly, the appeal is dismissed. (Rajesh Bindal) Judge February 22 ,2010 mk