FAO No.1350 of 1996 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1350 of 1996 DATE OF DECISION: February 14, 2011 SMT. PALO DEVI & OTHERS ...APPELLANTS VERSUS SH. DEEPAK SHARMA AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? Yes 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: NONE FOR THE APPELLANTS. NONE FOR RESPONDENTS NO.1 AND 3. MR. DEEPAK SURI, ADVOCATE FOR RESPONDENT NO.2. MR. R.K. BASHAMBOO, ADVOCATE FOR RESPONDENT NO.4. K.KANNAN, J.(ORAL) 1. The appeal is by the claimants seeking for enhancement of compensation. There is no representation for the appellants. The matter relates to a death of husband of claimant No.1. Since the tools of determining compensation are reasonably well settled, I proceed to dispose of the case on merits with the help of the records and with the assistance of counsel for the respective insurance companies. 2. The Tribunal in assessing the claim found that in a case of collision, that the deceased who was a driver of the tempo, was responsible 70% and the driver of the bus was responsible 30%. In a head-on collision the liability could have been apportioned equally and I will, therefore, FAO No.1350 of 1996 -2- modify the respective liability as 50:50 instead of 70:30 between the driver of the tempo and the driver of the bus. Even as regards the quantum, the multiplier provided was 16, but I will take the multiplier as 18, having regard to the fact that the deceased was aged 25 years. The amount of compensation is tabulated herebelow:- Fatal Accidents Age: 25 Occupation Driver Claimants Widow, minor child Heads of Claim Tribunal High Court Sr.No. Amount ` Amount ` 1. Annual Income 2000 2. Add % of increase 30%/50% nil 3. Deduction (1/2,1/3, 1/4, 1/5) 4. Multiplicand - Tax 5. Multiplier 1700 x 12 1700 x 12 6. Loss of Dependence being ½ of the 16 18 7. Medical Expenses 3,67,200 8. Loss of Consortium + loss of love and affection 7500 9. Loss to Estate 2500 10. Funeral Expenses 2000 Total 3,26,400/- 3,79,200/- 3. The amount in excess over what has already been awarded by the Tribunal shall attract interest @ 6% from the date of petition till the date of payment. 4. The Tribunal after assessing the compensation of `3,26,400/- cast a partial abatement of 70% of claim by holding that the deceased himself was responsible for the accident to such an extent. I have already modified the finding regarding the negligence and altered it as 50:50. While 50% of the amount should be claimed against the insurer of the bus, I will FAO No.1350 of 1996 -3- not subject the remaining 50% to be lost by abatement by the only fact that the insurer shall still be liable under the terms of policy for covering the risk to a person who was workman under the Workmen Compensation Act. Learned counsel appearing for the insurance company for the tempo would contend that such a liability could be fastened only in an action taken before the Workmen Compensation Commissioner where the assessment of compensation is done under such Act. In my view, such a contention may not be correct under the peculiar facts of the case. The right of enforcement of claim against the insurer under Section 167 could be either under the Motor Vehicles Act or under the Workmen Compensation Act. In this case, the claim was properly prosecuted before the MACT. It was not merely a representative of the workman making a claim against his employer and the insurer, but on account of the fact that it was a case of collision, the representatives had right of action against the owner and the insurer of the bus before the MACT. Indeed, the case could not have been prosecuted against the insurer of the bus before the Workmen Compensation Commissioner since the driver of the bus was not his own employer. If the petition before the MACT was, therefore, justified, then in the manner of apportionment, the liability of the insurance company of the bus cannot be denied at all to an extent of 50%. The question would be whether the claim shall abate for 50% even against the insurer of the vehicle which he was driving. The liability of the insurer for a workman is not necessarily only when the claim is prosecuted before the Workmen Compensation Commissioner. In such an eventuality, there could not have been even an abatement of any portion. It would have been possible for the claimants to proceed only against the employer and the insurer for the whole amount if FAO No.1350 of 1996 -4- the petition had been filed under Workmen Compensation Act. By opting to prosecute the case before the Tribunal, the insurer get in some way a benefit of answering only 50% of the claim. I will not find a reason to cast any abatement of the claim for the claimants and the liability of the amount determined shall, therefore, stand apportioned between the two insurance companies in the manner referred to above. 5. The appeal is allowed to the above extent. 6. The party is not present before the Court and the Registry is directed to despatch the copy of the order directly to the appellants. February 14, 2011 (K.KANNAN) Gulati JUDGE