IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.929 of 2009 (O&M) Date of decision:23.12.2010 United India Insurance Company Limited ....Appellant versus Anita Singhal and others ...Respondents II. FAO No.930 of 2009 (O&M) United India Insurance Company Limited ....Appellant versus Smt. Usha Rani and others ...Respondents III. FAO No.931 of 2009 (O&M) United India Insurance Company Limited ....Appellant versus Smt. Nidhi Goel and others ...Respondents IV. FAO No.932 of 2009 (O&M) United India Insurance Company Limited ....Appellant versus Gaurav and others ...Respondents V. FAO No.933 of 2009 (O&M) United India Insurance Company Limited ....Appellant versus Smt. Shashi Bala and others ...Respondents FAO No.929 of 2009 (O&M) - 2 - VI. Civil Revision No.1088 of 2009 (O&M) United India Insurance Company Limited ....Appellant versus Deepak Goel and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.V. Ramswaroop, Advocate, for the appellant. Mr. Sachin Gupta, Advocate, for respondents 1 to 4 in FAO Nos.929 to 931 and 933 of 2009 and for respondent No.1 in Civil Revision No.1088 of 2009. Mr. R.S.Longia, Advocate. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. 1. The appellant-Insurance Company has had the benefit of defence under Section 170 and the Insurance Company is, therefore, challenging the issue of negligence and quantum to the extent to which the Tribunal found that the driver of the tractor-trolley had been negligent in parking the vehicle on the middle of the road and was responsible for the accident. The first task shall be to examine if there was any contributory negligence on the part of the driver of the Esteem car and if there was, it shall also become necessary to examine the issue of liability of the insurer, viz., of National Insurance Company whether there existed any insurance cover for gratuitous passengers in the FAO No.929 of 2009 (O&M) - 3 - vehicle. Before the Tribunal, it did not become necessary to examine the same in view of the fact that the Tribunal found the owner/insured of the tractor trolley to be wholly responsible for the accident and made the insurer liable. 2. All these appeals arise out of the same accident when several persons were travelling in a maruti esteem car met with a macabre incident of gruesome accident when the vehicle dashed against a stationary tractor- trolley. These petitions came to be filed at the instance of the representatives of the deceased who were four in number and two persons who were injured. The Tribunal held that the tractor trolley had been wrongly parked in a place without adequate lights or indicators that it was stationary and awarded compensation wholly against the insurer of the tractor trolley. All the appeals have been filed against the liability cast on the insurance company, who was the insurer for the tractor. On the issue of negligence, two of the passengers, who survived in the accident, PW6-Gaurav and PW7-Deepak, gave evidence to the effect that they were coming from Babain towards Ladwa and on Ladwa Shahabad road. The vehicle was being driven by one Ankit. At about 8.30 PM, when the car reached near the village Bhaini opposite HAFED Godown near Saini Dhaba, there was tractor trolley loaded with paddy bags at the middle of the road without any indication or without any lights and the car dashed into it on account of the alleged negligent parking of a tractor trolley at the middle of the road. 3. The defence on behalf of the owner/driver of the tractor trolley was that the tractor had developed a mechanical defect and it had FAO No.929 of 2009 (O&M) - 4 - been parked on the side of the road and the driver had gone to bring a motor mechanic to put the vehicle into order. According to him and the arguments advanced on behalf of the insurer, the fact that the accident had taken place by the vehicle dashing from the rear side of a stationary tractor itself was proof of the fact of negligent driving of the esteem car by Ankit. The driver of the tractor namely Pawan Kumar was examined as RW3, who stated that the vehicle had been parked at a safe end of the road with parking lights and he denied the suggestion that there were no reflectors or back light, but however, he admitted that no twigs or pieces of stones were put around the tractor as a mark of indication that the vehicle was stationary. Although the driver had stated that half of the vehicle had been parked at the kacha portion of the road and the remaining on the car portion, the Tribunal relied on the photographs Ex.P149 to P151 to hold that the vehicle had been parked almost in the middle of the road and that no portion of the tractor had been parked on the kacha portion. It also observed that there were several feet distance between the edge of the metal road and the kacha portion. It was by his reliance on the photographs at the Tribunal that found that the tractor driver had been wholly negligent in parking the vehicle carelessly on the middle of the road. 4. I cannot uphold this finding by the only fact that the impact of collision was so high that the entire front portion of the maruti esteem car had gone underneath the trolley and both the passengers in the front seat including the driver and two passengers of the back had died instantaneously. I would, therefore, place a higher element of negligence FAO No.929 of 2009 (O&M) - 5 - on the part of the driver of the esteem car than a stationary truck and hold the driver of the esteem car to be 60% responsible and the driver of the tractor 40% responsible for not parking the vehicle beyond the metal end of the road. 5. Having determined the extent of liability on the respective drivers of the vehicle, the point for consideration will be determination of compensation payable and the extent to which it will have a bearing on the liability of the respective insurers of the vehicle. 6. FAO No.929 of 2009 addresses the claim of compensation for death of Nigam son of Arvind Singhal, aged 19 years. The claimants were the parents of the deceased, sister and the grandmother. The evidence was that the he was cultivating 5 acres of land and was earning Rs.7,000/- per month from agriculture and Rs.4,000/- per month as salary from other partners who were looking after his agricultural land. The case was supported by the evidence of PW4-Arvind Kumar, PW6- Gaurav and PW7-Deepak Goel. PW8 was Ranbir Singh, who gave statement that he was a partner with him in agriculture work and he used to give him Rs.4,000/- as salary. The ownership of the agricultural land in the name of the deceased was shown through the copy of jamabandi Ex.P5 and P6. The Court found that there was no reference in the jamabandi either to the name of the deceased or even Ranbir Singh PW8 and it was noticed that the entries in the jamabandi Ex.P5 and P6 have been made only subsequent to the death. PW8 himself stated that he had 45 acres of land along with 8 other partners and that he had employed Nigam orally. The Tribunal felt that the evidence left which to be desired FAO No.929 of 2009 (O&M) - 6 - and that his income could be only taken as that of any other agricultural labourer and assessed at Rs.3,400/-. The Tribunal deducted 50% of the same as going toward his own income and took the contribution to the family at Rs.1,700/-. The father of the deceased was 45 years and the age of his wife, the Tribunal found must be somewhere in the vicinity. The Tribunal, therefore, took the multiplier to be 12 and assessed the compensation at Rs.2,44,800/-. The Tribunal has also provided for the transportation of dead body and funeral expenses and rounded off the amount to Rs.2,50,000/-. As regards the quantum of compensation, there is no appeal for any of the claimants and, therefore, I will not subject it to any reappraisal. The amount of Rs.2,50,000/- as determined by the Tribunal shall stand apportioned in the ratio of 40:60 for the driver of the tractor- trolley and the owner of the esteem car. The principal liability of the tractor owner shall be only Rs.1 lakh with interest and the remaining amount shall be borne by the owner of the esteem car. The point whether the insurers of the tractor and of car respectively shall be examined later in this judgment. 7. As regards the claim for compensation which is the subject of appeal in FAO No.930 of 2009, the claimants are the parents, brother and sister. He was 22 years of age. The Tribunal had awarded Rs.4 lakhs as compensation. Having regard to the finding as regards the negligence, 40% of the same i.e. Rs.1,60,000/- shall be liable to pay by the the owner of the tractor with interest and the remaining shall stand abated by the fact that the deceased was himself the driver and the tort feasor to the extent to which he had contributed to the accident. FAO No.929 of 2009 (O&M) - 7 - 8. FAO No.931 of 2009 addresses the claim for compensation for death of Sachin Goel and the claimants were the widow, minor daughter and parents. The Tribunal had determined Rs.5,76,000/- as compensation payable and that would mean the liability at 40% on the owner of the tractor shall be Rs.2,30,400/- with interest as determined by the Tribunal and the balance of the amount shall be borne by the owner of the esteem car. 9. FAO No.932 of 2009 addresses the claim for compensation for injuries to the claimant namely Gaurav, who gave evidence to the effect that he became unconscious soon after the accident and he had been taken to the Pawan Hospital, Kurukshetra and later shifted to the Trauma Centre, Delhi and remained admitted for two months and was operated surgically. The Tribunal found that the father, who was said to have incurred the expenses for his injury, had himself not been examined and based on the bills produced and taking note of his hospitalization for a period of 45 days, the Tribunal determined the compensation of Rs.47,000/-. This again shall stand reduced to Rs.18,800/- with interest (as 40%) liable to pay by the owner of the tractor and the balance as 60% of the amount shall be borne by the owner of the esteem car. 10. FAO No.933 of 2009 addresses the claim for compensation for death of Munish Verma, aged 22 years and the claimants were his parents and sisters. The deceased was stated to be running a STD shop and engaged in the business of selling and purchasing of mobile phones and accessories. The Tribunal had determined the compensation at Rs.3,10,000/- and the manner in which the liability is determined now, FAO No.929 of 2009 (O&M) - 8 - the liability of the owner of the tractor shall be limited to Rs.1,24,000/- and the balance of the amount shall be recovered from the owner of the esteem car. 11. Civil Revision No.1088 of 2009 addresses the claim for compensation for injuries suffered in the motor accident, where the Tribunal has assessed the compensation at Rs.3,500/-. In the light of the finding regarding apportionment of negligence, this would mean a restriction of liability for the the owner of the tractor at Rs.1,400/- with interest and the balance shall be borne by the owner of the esteem car. 12. The Insurance Company denies even the fact of insurance and, therefore, whether the Insurance Company will be liable even to the extent of 40% shall be required to be examined independently. Since we have relegated the issue of liability of the Insurance Company for a separate examination, it has to be considered in the light of the defence taken by the Insurance Company that the policy of insurance produced as R2 established that only the tractor make Ford manufactured in the year 1991 had been insured and not the trolley. It was contended that the trolley was required to be separately insured and since it was not done, the Insurance Company cannot be made liable. Further, the Branch Manager, Smt. Veena Kumari had been examined as RW2 and gave evidence to the effect that the photocopy of the cover note produced as R2. She had brought the carbon copy of the original cover note and it was seen that even R2 did not relate to the proposal for insurance cover for the tractor. It was attempted to be shown that the proposal was for the car having registration No.DAQ-0302 of maruti branch for cover note FAO No.929 of 2009 (O&M) - 9 - No.383608, dated 21.12.2005. The insured was one M/s Amar Nath Chiranji Lal and Company of Delhi. The carbon copy of the cover note was filed as R3 and on that basis, a policy had also been issued under R4. It was elicited through the witness that on 13.10.2005 when cover note for the tractor was alleged to have been issued, no premium at all had been received by the office of the Insurance Company. The registers of entries relating to the receipts of premium was also produced and marked as R5. On the contrary, the receipt of premium for the Maruti car which was said to have been insured under the cover note No.383608 was produced and stated to be through a cheque and evidenced through receipt R6. In the course of cross-examination of witness RW2, she specifically denied that Ex.R2 cover note bore the signatures of their Development Officer, Parveen Gupta. The witness was confronted with reference to the fact that R2 and R3 namely the cover notes purported to have been issued for the tractor and the cover note said to have been issued for a maruti car with the owner as M/s Amar Nath Chiranji Lal referred to the same serial number but the witness denied that the cover note R2 was genuine. It must be noticed that when there were two cover notes carrying the same serial number, both of them cannot be true, one has to be fabricated. In this case, the Manager of the Insurance Company of the particular branch has given evidence with reference to their carbon copy maintained by the office and the receipts of premium entered in the registers. The carbon copy as well the receipt of the premium showed that the proposal had been only for the maruti car No.DAQ-0302 and not for the Ford tractor. It cannot, therefore, be accepted that any proposal FAO No.929 of 2009 (O&M) - 10 - had been accepted by the Insurance Company with reference to the tractor. Even apart from the discrepancy as seen from the cover note and the positive evidence given by the Manager of the Insurance Company (RW8), a Registration Clerk, Thanesar, was examined to say that the tractor had been registered for agricultural purposes and not as a goods carrier and RW9, the Licensing Clerk, Sonepat, gave evidence to the effect that the registration for the vehicle No.HR-10-5452 had been done originally in the name of Ranbir Singh and later transferred in the name of Ishwar Singh and the entry regarding the transfer had been made on 29.08.1995. 13. Adverting to the alleged similarity of the signatures found in the cover note issued under R2 and R3, the Tribunal had observed that the policy had been issued only by the Development Officer namely Parveen Gupta in favour of the owner of the tractor. The Tribunal had, therefore, observed that if any fraud had been committed by the Development Officer and he had also issued the cover note containing the same number, the insured cannot be penalized for the fraud committed by an employee of the Insurance Company. Significantly, in this case, that Parveen Gupta himself was not examined to say that the signature as found in R2 was not his and that he had not received the proposal for the insurance for the tractor. Under the circumstance, I am of the view that the Tribunal was justified in finding that the Insurance Company shall be bound by the cover note of the Development Officer and take that to be an insurance available for the owner of the tractor. In this case, however, the accident had been caused by the car running FAO No.929 of 2009 (O&M) - 11- against the trolley which was admittedly not insured. The Insurance Company has pleaded that if at all, for a claim arising at the instance of third parties, it shall be provided with a right of recovery against the owner of the tractor. Accordingly, I find that the insurer shall become liable to 40% of the liability as apportioned to the driver of the tractor and shall have also a right of recovery in all the cases against the owner of the tractor since the trolley itself had not been insured. As regards the liability of the owner of the esteem car, the aspect has not been considered by the Tribunal in view of its finding that it was only the driver of the tractor that was responsible for the accident. The liability of the insurer for passengers of the maruti esteem car shall be determined by the terms of the policy and, therefore, the matter shall stand remitted to the Tribunal as regards the plea regarding the liability of the Insurance Company on the basis of the terms of the policy. 14. The ultimate dispensation shall, therefore, be that in FAO Nos.929, 931, 932, 933 of 2009 and Civil Revision No.1088 of 2009 the appellant-Insurance Company shall be liable to the extent of 40% of the respective awards passed together with interest as determined, but it shall also have a right of recovery against the estate of owner of the tractor (Puran Chand) in the hands of the legal representatives namely, Jasbir Kaur, Karambir and Ravinder Singh alias Angrej Singh, along with Surinder Kumar the joint owner-cum-Superdar of the tractor trolley. As regards the entitlement of the claimants in above cases to the extent of 60%, the appeals shall stand remitted to the Tribunal at Kurukshetra, for consideration of the liability of the Insurance Company namely of the FAO No.929 of 2009 (O&M) - 12 - National Insurance Company and whether the owner of the esteem car Mr. Pawan Kumar Garg shall be entitled to right of indemnity for the liability incurred by the act of the driver of the car on that day. 15. For appearance of parties before the Tribunal at Kurukshetra on 28.01.2011. 16. As regards the claim in FAO No.930 of 2009, the liability of the appellant-Insurance Company shall be to the extent of 40% of what has been already determined. It shall also be provided with a right of recovery for the Insurance Company in the same manner as referred to above. The claimants in FAO No.930 of 2009 shall suffer an abatement of claim to the extent of 60% since the deceased whose representatives the claimants are, was himself responsible for the accident to the extent of 60%. 17. The appeal in FAO No.930 of 2009 is disposed of as above. 18. A copy of the order be issued dasti to the parties/counsel on payment of usual charges. (K.KANNAN) JUDGE 23.12.2010 sanjeev