FAO No. 322 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 322 of 2010 (O&M) Date of decision: 27.01.2010 The New India Assurance Company Limited, Ropar ....Appellant Versus Usha Rani and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Mr. R.K. Bashamboo, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This appeal by the Insurance Company is directed against the award dated 15.10.2009, passed by the learned Motor Accident Claims Tribunal, Ropar, vide which the claim petition filed by widow and minor children of deceased Balram Singh, was allowed. Balram Singh, who was running a tea-stall, was standing in his tea stall situated at new bus stand Ropar, one bus of Ambala Bus Syndicate bearing registration No. PB-12-H-2730 driven by respondent No.1, in a rash and negligent manner at a very high speed came from old bus stand side, and while overtaking a tipper bearing No. JH 05 A Temp 4268, which was coming from old bus stand side towards new bus stand, driven by respondent No.4, Rajesh Kumar, at a very high speed. The back portion of the bus hit against the tipper, as a result of which the driver of tipper lost control and struck the tipper against tea-stall of deceased Balram Singh, where he was standing along with 3-4 persons, who also received injuries. Due to the injuries suffered Balram Singh died at the spot. FIR No. 37 dated 4.4.2006 under FAO No. 322 of 2010 (O&M) -2- Sections 279, 337 and 304-A IPC was registered at Police Station, Ropar. Respondents No.4 and 5 i.e. Rajesh Kumar, driver of the tipper and Commercial Engineers and Body Builders Co. Pvt. Ltd., owner of the truck did not contest the claim petition and were proceeded ex parte. However, the driver and owner of the bus took a stand, that false case has been registered by concocting false story. It was pleaded that no accident had taken place with the bus in question. Other averments in claim petition were also denied. New India Assurance Company-appellant also contested the claim petition by raising number of objections, and denied its liability on the plea that the drivers of the vehicles were not holding valid driving licence at the time of accident, and furthermore they were not holding any registration certificates, route permits, fitness certificates etc. On the pleadings of the parties, the learned Tribunal framed the following issues: - “1. Whether Balram Singh died in a vehicular road side accident on 3.4.2006 at about 4.50 p.m. in the area of Bus Stand Ropar, caused by respondent No.1 Hazara Singh and respondent No.4 Rajesh Kumar while driving bus bearing registration No. PB-12-H-2730 and truck/tipper bearing registration No. JH-05-A-Temp-4268, in a rash and negligent manner? OPP 2. Whether the claimants are entitled to any compensation? If so, to what extent and from whom? OPP 3. Whether the present claim petition is not maintainable in the present from? OPR 4. Whether the present claim petition is bad for misjoinder of parties and nonjoinder of FAO No. 322 of 2010 (O&M) -3- necessary parties? OPR 3 & 6 5. Whether the respondent No.1 was not holding a valid and legal D.L. at the time of accident? If so, its effect? OPR3 and 6 6. Whether the respondent No.4 was not holding a valid and legal D.L. at the time of accident? If so, its effect? OPR3 and 6 7. Whether the claimants have got no cause of action to file the present claim petition? OPR3 and 6 8. Relief.” Though specific issues No.5 and 6 were framed on pleading of appellant but the appellant led no evidence in support of these issues, therefore, these issues were decided against the Insurance Company, by recording the following finding: - “Onus to prove these issues was on respondents No.3 and 6, but no evidence has been led by respondents No.3 and 6 to prove these issues. In the present case respondent No.1 and 4 have proved on file copy of driving licence of respondents No.1 and 4 mark-A and mark-P5 respectively, so in the absence of any evidence on behalf of respondents No.3 and 6, issues No.5 and 6 are decided in favour of the claimants and against respondents No.4, 5 and 6.” The appellant also failed to lead any evidence in support of the contention, that it was not liable to indemnify the insured in spite of the fact that application moved under Section 170 of the Motor Vehicles Act by the appellant was allowed by the Court. Learned counsel for the appellant challenged the award on the question of quantum of compensation. The contention of the learned counsel for the appellant is, that deceased was owner of a tea- stall, near bus stand and the learned Tribunal wrongly took his income to be Rs.5,000/- (Rupees five thousand only) per month, whereas it FAO No. 322 of 2010 (O&M) -4- should have been only Rs.3,000/- (Rupees three thousand only) per month, when no evidence was led in support of the income, by the claimants. The learned counsel for the appellant also contended, that though the age of the deceased was proved to be 40 years, multiplier of 15 was wrongly applied in assessing the compensation. The contentions raised by the learned counsel for the appellant deserve to be noticed to be rejected. The assessment of income at Rs.5,000/- (Rupees five thousand only) per month for a person, who is running a tea stall at bus stand, cannot be said on the higher side, but is, in fact, on the lower side. The multiplier also cannot be said to be on the higher side, as admittedly the deceased was aged on 40 years. Consequently, finding no merit in the contentions raised by learned counsel for the appellant, these stand rejected. Learned counsel for the appellant also contends that the tipper was not having a valid route permit, as held in another case, arising out of the accident. This contention again is totally misconceived, as the appellant led no evidence before the learned Tribunal, therefore, it is not open for the appellant to raise this plea, in any case appellant is insurer of both the vehicles, therefore, cannot deny its liability to indemnify the insurer as regards claimants are concerned. No merit. Dismissed. (Vinod K. Sharma) Judge January 27, 2010 R.S.