FAO No. 326 of 1992 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 326 of 1992 (O&M) Date of Decision: 19.3.2010 The New India Assurance Company Ltd. and others ....Appellants Versus Baljinder Kaur and others ...Respondents CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Neeraj Khanna, Advocate for the appellants. Mr. A.S. Virk, Advocate for the respondents. RAJESH BINDAL, J **** At the very outset learned counsel for the appellants requested for time to move application for transposing the name of appellant No.1, namely, the New India Assurance Company Limited from the appellants' side to the respondents' side, in view of the fact that a joint appeal filed on behalf of the insurer and the insured challenging the award of the Motor Accidents Claims Tribunal, Kurukshetra (for short, 'the Tribunal') is not maintainable and the present appeal is sought to be pressed only on behalf of the owner of the vehicle, who otherwise stood indemnified by the insurance company for the amount of compensation awarded by the Tribunal. After hearing learned counsel for the appellants, I do not find any reason to grant liberty to the appellants to move application for the purpose prayed for at this belated stage. The appeal pertains to the year 1992. It is on regular board of this Court since 6.1.2010. The legal position as to whether a joint appeal by the Insurance Company and the owner and driver of the vehicle is maintainable or not and what is the course to be adopted in case a joint petition had already been filed, has already been settled by Hon'ble the Supreme Court in Narendra Kumar and another etc. and others v. Yarenissa and others etc. and others, (1997-2) 116 PLR 417, wherein it was held that in case there is a joint appeal, the same can be argued only on behalf of the insured by deleting the name of the insurer. Same was the view in H.S. Ahammed Hussain and others 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, but in spite of the position of law having been settled long back, no FAO No. 326 of 1992 (O&M) 2 application for transposing the name of the Insurance Company from the appellants' side to the respondents' side was moved. In case at this stage, prayer of the appellants to consider the appeal only on behalf of appellants namely the owner and driver of the vehicle is concerned, the insurer of the vehicle, who though was one of the respondents before the Tribunal being not party in the appeal filed before this Court, the appeal may be bad on account of non-joinder of necessary parties. Be that as it may, still as the appeal is pending before this Court since 1992, I proceed to consider the same having been filed only by the owner and driver of the vehicle. The appellants are in appeal against the award 15.11.1991, whereby the learned Tribunal awarded Rs. 3,85,000/- as compensation on account of the death of Subhash Chand. Briefly the facts are that on February 8, 1991 at about 9:15 p.m. Subhash Chand was going from Pipli to Shahbad on his scooter bearing registration No. HNX-1653. The scooter was being driven on the correct side of the road. When he reached near village Rattangarh, a truck bearing registration No. HR01-8517 came from Ambala side at a fast speed. It was being driven by Malook Singh in a rash and negligent manner. While going on the wrong side of the road the truck struck against the scooter. Subhash Chand received multiple injuries and was shifted to Civil Hospital where he succumbed to his injuries on February 9, 1991. FIR No. 36 of the incident was registered at P.S. Shahbad on February 8, 1991. The claim petition filed by the respondents/claimants was accepted by the learned Tribunal. The primary ground on which the award of learned Tribunal is sought to be challenged by the owner and driver of the vehicle is that the driver of the truck was not negligent and further the amount of compensation as assessed by the Tribunal is on higher side. It is claimed that it was the fault of the driver of the scooter on account of which the accident in question occurred. As regard, the quantum of compensation is concerned, it was stated that the claimants had not been able to prove on record the income of the deceased and in the absence thereof the assessment of his income at Rs. 3,000/- per month is highly excessive. Even the cut on account of dependency has not been applied properly and similar is the position with regard to application of multiplier. After hearing learned counsel for the appellants, I do not find any merit in the submission made. To prove the issue of negligence the claimants examined PW2 Ramesh Kumar, who was an eye witness of the accident and author of the FIR Ex.P1. He stated that at the time of accident he along with Suraj Bhan Sarpanch and Sardara Ram Ex-Sarpanch was going to his village Rattangarh from G.T. Road. He noticed a truck bearing registration No. HR-01-8517 coming from Shahabad side at a fast speed. He stated that the truck in question hit the FAO No. 326 of 1992 (O&M) 3 scooterist who was coming from the opposite direction while going on the wrong side of the road. The scooterist was also dragged upto some distance. The witness was cross-examined at length by counsel for the appellants. However, his testimony could not be shaken on any of the facts stated by him. No evidence was led by the appellants to substantiate the plea regarding the driver of the truck being not negligent. Appellants have not been able to make out a case to claim that the driver of the truck was not negligent. As fas as the assessment of the amount of compensation is concerned, the facts which have come on record are that the deceased Subhash Chand was aged 25 years. At the time of his death he was hale and hearty and was survived by his widow, two minor children and old parents. He was stated to be earning Rs. 6,000/- per month from electric goods shop which he used to run at Lalru and from agricultural land measuring 12 acres. It was further claimed that the deceased was matriculate and diploma holder of T.V. Course and in addition to that income it was claimed that he was earning Rs.1,000/- per day from poultry farm. The fact that the deceased was running an electric goods shop was proved on record by producing Form 'F' issued by the Inspector, Shop and Commercial Establishment, Rajpura Ex.P4 and Form 'B' Ex.P5. Nothing was produced on record to substantiate that the deceased was owning any land or poultry farm. Considering the fact that the deceased was a qualified diploma holder and also running an electric goods shop at Lalru his income was assessed at Rs. 3,000/- per month, which in my opinion cannot be faulted with. Learned Tribunal applied a cut off of Rs. 1,000/- on account of dependency and applied a multiplier of 16 and assessed the compensation at Rs. 3,85,000/- which was directed to be distributed amongst all the five claimants. If the principle of law laid down by Hon'ble the Supreme Court in Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another (2009) 6 Supreme Court Cases 121 regarding the issue of dependency and multiplier are considered in view of the fact that there were five dependents upon the deceased the cut required to be applied would be 1/4th as against 1/3rd applied by the Tribunal. Even the multiplier applicable in the age group upto 25 years is 18. If the principle as laid down in Sarla Verma's case (supra) are applied in the facts of the present case only considering the age of the deceased and also the number of persons dependent upon him, even if his income is assessed at Rs. 2,400/- per month still after applying a cut of 1/4th and multiplier of 18 the amount of compensation would come out near to the amount of compensation assessed by the Tribunal. In view of my aforesaid discussions, I do not find any merit in the present appeal and the same is dismissed. As the respondents are not represented and disbursement of part FAO No. 326 of 1992 (O&M) 4 of the compensation was stayed by this Court, while admitting the appeal, Registry is directed to send a copy of the order to the respondents/claimants. (RAJESH BINDAL) 19.3.2010 JUDGE Reema