FAO No.2445 of 2007 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2445 of 2007 Date of Decision. 29.07.2010 United India Insurance Company Limited, having its Regional Office in SCO No.123-24, Sector 17, Chandigarh through its duly constituted attorney. .........Appellant Versus Ram Ratti widow of late Chhabil Das, resident of House No.343/5, Gandhi Nagar, District Jind, Haryana and others .......Respondents 2. FAO No.2446 of 2007 United India Insurance Company Limited, having its Regional Office in SCO No.123-24, Sector 17, Chandigarh through its duly constituted attorney. .........Appellant Versus Sajjan Kumar son of Chhabil Das son of Rameshwar Das, resident of House NO.343/5, Gandhi Nagar, District Jind, Haryana and another .......Respondents Present: Mr. Ravinder Arora, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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.(ORAL) 1. The connected appeals arise out of an accident where a maruti van, which had a Package Policy, was hit against a tree. The driver of the vehicle was injured and a passenger died in the accident. The claim was made for the deceased under Section 163-A of the Motor Vehicles Act. Although his income was said to be in excess of Rs.40,000/-, the claimants restricted the salary to be less than Rs.40,000/-. The learned counsel would contend that such a FAO No.2445 of 2007 -2- kind of concession was not possible and if as a matter of fact, the contention was that the deceased was earning more than Rs.40,000/-, he could not have filed the claim petition under Section 163-A of the Motor Vehicles Act at all. In yet another case, it is a claim by the driver of the vehicle similarly under Section 163-A for damages for injuries sustained. 2. The Tribunal approached the issue from the point of view that it was unnecessary to examine the question of negligence for a claim under Section 163-A of the Motor Vehicles Act. While it is correct that negligence need not to be proved, it will be wrong to assume that a claim under Section 163-A of the Motor Vehicles Act is possible even for the act of a tort feasor by the tort feasor himself. However, the issue will be different for a person, who is a gratuitous passenger in a car, who is not the owner of the vehicle himself. If a claim under Section 163-A is not possible for any risk, the case could still be examined under Section 166 of the Motor Vehicles Act where the accident by a collision with a tree that was not known to have taken place as a result of any mechanical defect, it must only be understood as resulting from a ves ipsa loquiter situation. A vehicle simply does not get hit against a tree. If it was not a mechanical defect, the negligence of the driver speaks for itself. In such an event, the passenger in a vehicle is bound to be protected for claim through himself or through the representative in case of death. The liability of the insurance company is, therefore, surely attracted and the award passed by the Tribunal assessing the compensation for the deceased at Rs.1,60,000/- is affirmed and the appeal is dismissed. FAO No.2445 of 2007 -3- 3. As regards the claim of the driver for injury sustained, the application under Section 163-A was not maintainable at all and the reasoning adopted by the Tribunal was erroneous. However, I still do not want to direct the parties to start proceedings afresh under the Workmen Compensation Act but it will certainly be possible if the driver, who is a workman gets injured in the accident by his own negligence. In this case, the driver had given evidence to the effect that he had suffered a fracture in his leg and taken treatment at Maharaja Agrasen Hospital, Jind under the care of doctor Ashok Gupta. He was also said to have been operated upon for reducing the fracture. The disability complained of was that he had a shortening of his limb but the Tribunal found that there were no medical evidence placed except bills to the tune of Rs.32,961.45. A treatment that has cost him over Rs.30,000/- with operation when medical expenses in PGIMS Rohtak and subsequent treatment in private hospital must have been the result of substantial injuries but unfortunately I have not the benefit of any appropriate evidence to assess the disability or the loss resulting from his injuries. The Tribunal found that the claimant, who was a driver must have earned Rs.3500/- per month and the loss of income due to the injuries was assessed at Rs.10,000/-. The Tribunal allowed for Rs.40,000/- towards the medical expenses, loss of income Rs.10,000/-, attendant and transportation charges Rs.8,000/- and for pain and suffering Rs.10,000/- and in all an amount of RS.68,000/- was awarded towards compensation. In the reasoning, I have adopted that the driver will not be able to maintain an action FAO No.2445 of 2007 -4- for compensation under Section 163-A, for his own negligent driving, the scale of compensation, which the Workmen's Compensation Act could make possible could be assessed if there is any evidence relating to the disability arising out of the accident. Since the evidence is inadequate for assessing compensation for the claim under the Workmen's Compensation Act, I shall set aside the award insofar as it does allow for a compensation to the injured. The 1st respondent, Sajjan Kumar, will have a right to approach the Workmen's Compensation Commissioner and seek for an assessment of compensation in the manner provided by law. The claimant will be at liberty to adduce proof of the bona fide prosecution of the case as justification for not filing the application within time. 4. Under the circumstances, the appeal filed in FAO No.2445 of 2007 is dismissed and the appeal filed in FAO No.2446 of 2007 is allowed. (K. KANNAN) JUDGE July 29, 2010 Pankaj*