FAO No. 3541 of 1999 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 3541 of 1999 Date of decision March 17, 2011 Ram Singh ....... Appellant Versus Mahabir and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. John Kumar, Advocate for Mr. Vikram Singh, Advocate for the appellant. Mr. N. K. Khosla , Advocate for the Insurance Company. **** 1. Whether reporters of local papers may be allowed to see the judgment ? No 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. The appeal is against the dismissal of the petition for compensation for death of a male aged 25 years. He was a cleaner in a truck and the claimants were parents. 2. The accident was said to have taken place at the time when the vehicle in which he was going from Delhi to Nepal as a Cleaner turned turtle and when he was standing outside the truck at that time, the first respondent's vehicle came and dashed against the truck which was already remaining stationary. The cleaner who was standing FAO No. 3541 of 1999 2 outside got crushed and died. The accident was said to have taken place on the intervening night between 5.4.1996 and 6.4.1996. 3. The accident was spoken to by the owner of the truck who claimed that he had come to the place on being informed that his vehicle had turned turtle and soon as he arrived yet another accident had taken place killing the deceased. The FIR had been lodged the next day and the owner of the vehicle under whom the deceased was a workman had stated that he had seen the accident himself. 4. The postmortem was conducted the following day at 3.30 P.M. and the postmortem certificate recorded the doctor's opinion that the death must have occurred about 24 hours earlier. This the Tribunal took to be conclusive for finding that he must have died around 3.30 P.M. previous day and the accident which was said to have taken place in the night could not be true. The Tribunal was clearly in error in taking a medical opinion to be conclusive when there was an eye witness account for the same. The reason for discrediting the evidence of PW-2 was also that he was the employer of the deceased and he could have been interested in securing an award for him. It further reasoned that if at all, he ought to have died only when the vehicle in which he was travelling capsized and he was trying to pass on the liability to a yet another vehicle. In this case, significantly neither the driver nor the owner of the vehicle involved in the accident was examined. The Insurance Company had filed the counter and it had not stated that there was any form of collusion between the claimant and the respondent Nos.1 and 2. The first respondent himself had filed a written statement denying the fact of death as resultant to a collision with the vehicle in which the deceased was travelling. The contention was that the deceased had died by the over turning of truck number HR46-7474 and not due to collision with his vehicle which was HR 38-3334. As a matter of fact the first respondent had FAO No. 3541 of 1999 3 admitted in the statement that there was a collision of the truck HR 38-3334 with the truck HR46-7474 but he was only trying to say that the death was not on account of such collision. If none of the respondents amongst 1 and 2 would give evidence to deny the petitioner's case, the Tribunal ought to have accepted the contention raised on behalf of the claimant that he had died only on account of the collision with the second respondent's vehicle. I, therefore se aside the finding of the Tribunal as regards the non- involvement of the second respondent's vehicle. 5. The Insurance Company had a defence that the second respondent had made a proposal on 2.4.1996 and on receipt of the cheque, a cover note had been issued on 2.4.1996 and the risk was covered between the period 3.4.1996 to 2.4.1997. The Manager of the Bank gave evidence to the effect that the cheque was dishonoured on 11.4.1996 and the notice of dishonoour and cancellation of policy had been made by the Insurance Company by sending a notice to the owner subsequently through Ex. R-5. If the cancellation of policy itself had been made subsequent to the accident for a non-payment of the premium, a third party interest cannot suffer. If at all, the Insurance Company shall be liable to satisfy the claim and recover the same from the owner and the insured in terms of the judgment of the Hon'ble Supreme Court in National Insurance Company Vs. Abhey Singh Waghela 2008 9 SCC 133. This point was also subsequently reaffirmed by the Hon'ble Supreme Court in United India Insurance Company Ltd. Vs. Santro Devi 2009 1 SCC 558. 6. As regards the quantum, I will find that the deceased was said to be earning `2500/-. Since his income falls below the statutory limit of `40,000/-, I will apply the scales as found under Section 163-A read with Schedule-II. The loss of dependency will be `3,40,000/-. An additional amount of 4500/- will be added for loss to estate and funeral expenses. The compensation will be `3,45,000/- payable to the claimants. FAO No. 3541 of 1999 4 The liability shall be on the Insurance Company to make the payment and it shall have a right of recovery from respondent Nos. 1 and 2. The amount in excess of what has been awarded by the Tribunal shall carry interest at the rate of 7.5% per annum from the date of petition till the date of payment. 7. The dismissal of the case by the Tribunal is set aside and the appeal is allowed to the above extent. (K. KANNAN) JUDGE March 17, 2011 archana