FAO No. 120 of 1990 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No. 120 of 1990 (O&M) Date of decision : 9.3.2010 ... New India Assurance Co. Ltd., and others ................Appellants vs. Smt. Bimla Devi and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Ms. Radhika Suri, Advocate for the appellants ... K.C. Puri, J. (Oral) This is an appeal, directed by the Insurance Company, owner and driver against the award dated 15.9.1989 passed by Motor Accident Claims Tribunal, Karnal, vide which the claim petition preferred by parents and two brothers of the deceased Suresh Kumar was accepted. Briefly stated, the case of the claimants is that Suresh Kumar was going towards Sector 6, Urban Estate, Karnal on a motor-cycle. He was followed by Rakesh Kumar who was travelling on his own scooter. When Suresh Kumar reached near the crossing of G.T. Road bye-pass, he noticed truck No. DEG-1555 driven by Tara Chand coming from the side of ITI chowk. Realising that the truck was FAO No. 120 of 1990 -2- coming at a very high speed and being driven rashly and negligently towards the place where the Suresh had reached, the latter stopped his motor cycle and stood on one side of the road on its extreme right side. However, the truck struck into the motor cycle of Suresh Kumar and knocked him down. Suresh Kumar succumbed to the injuries. Respondents No. 1 and 2 filed joint written statement denying the accident. Respondent No.3 Insurance Company filed the written statement, in which it is mentioned that deceased himself was negligent which has culminated into the accident. From the pleadings of the parties, following issues were framed:- 1. Whether the accident took place due to rash or negligent driving of Tara Chand driver of truck No. DEG-1555 as alleged in the petition? OPP. 2. If issue No. 1 is proved, to what amount of compensation, the claimant is entitled to and from whom? OPP. 3. Relief. The claimants examined PW-1 Tilak Raj - Ahlmad, Gian Chand - father, Bimla Rani-mother, Ashok Kumar-eye witness, Dr. Jagdish Bhatla, Medical Officer and Rajesh Goel, Medical Officer. In rebuttal, Tara Chand appeared as his own witness. Learned Tribunal after appraisal of the evidence, returned the finding on issue No. 1 in favour of the claimants. While deciding issue No. 2, the amount in respect of compensation was assessed as Rs.1,49,000/- and out of that amount Rs.50,000/- was ordered to be FAO No. 120 of 1990 -3- paid to Bimla Rani – mother, Rs.50,000/- to Gian Chand -father and Rs.24,500/- each to two brothers – Ashwani Kumar and Dinesh Kumar. Feeling dissatisfied with the above said award, the Insurance Company, as well as the driver and the owner of the offending vehicle have filed the joint appeal. The Hon'ble Apex Court in authority reported as Asha and others vs. United India Insurance Co. Ltd. and another PLR (2004-1) 1, has held that joint appeal preferred by the Insurance Company, owner and driver, is not maintainable. Faced with the abovesaid situation, learned counsel for the appellants has made an oral prayer that Tara Chand and Harjit Singh be arrayed as respondents and New India Assurance Co. Ltd., be allowed to argue the appeal. Learned counsel for the appellant-New India Assurance Co. Ltd., has submitted that the finding of the Tribunal on issue No.1 is wrong on the face of it. Deceased Suresh Kumar was joining the main GT road and it was his legal duty to find out that no vehicle was going. She has relied upon the authority reported as Shri Hans Raj and others vs. Neelam Chopra and another PLR (1986-1) 92 and on the strength of same it is argued that in view of provisions of Schedule 10 Regulation 6 of the Motor Vehicle Act, a person joining the main road should be careful. It is further submitted that both the eye-witnesses have also stated the fact that Suresh Kumar joined the main G.T. Road. So, in these circumstances, the negligence of offending vehicle i.e. Truck, is not proved. FAO No. 120 of 1990 -4- I have carefully considered the said submission. The argument looks attractive but is without any force. The evidence on the file has to be seen. Both eye-witnesses have categorically stated that Suresh Kumar after seeing the offending vehicle has stopped his vehicle and thereafter the truck struck against the motor cycle of Suresh Kumar – deceased. FIR has also been registered against the offending vehicle. Both these witnesses were cross examined at length but nothing could be brought out on the file to discard their sworn testimony. Moreover, it is a civil case and the same has to be decided according to the pleadings of the parties. The driver and owner of the offending vehicle have simply denied the accident in the written reply and they have not taken any plea that accident has taken place due to negligent driving of motor cycle by Suresh Kumar. So, the testimony of Tara Chand in this regard, being beyond pleading, cannot be looked into. So far as, the law laid down in Shri Hans Raj 's case (Supra) is concerned, there is no dispute that that proposition of law that a person who joins the main road should be more careful. But, however in the present case from the testimony of both the eyewitnesses it is clear that Suresh Kumar had already joined the road and had stopped the vehicle. So, in these circumstances, the finding on issue No. 1 by the Tribunal, does not call for any interference. The next contention raised by counsel for the appellant is that brothers are not dependent and as such the amount could not be granted to the brothers. However, that argument will not be in any way helpful to FAO No. 120 of 1990 -5- the Insurance Company, as the amount of compensation has been assessed. It is only the apportionment, which can be stated to be incorrect. The amount granted to the brothers shall go to the parents. However, the parents have not objected to the payment of same to the brothers. So, in these circumstances, the above said contention is also without any substance. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 9.3.2010 Judge chugh