FAO No. 786 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 31.10.2011 1. FAO No. 786 of 1990 (in MACT case No. 12 of 1987) New India Assurance Co. Ltd. Appellant v. Sadhna Bargava and Others Respondents 2. FAO No. 28 of 1991 (in MACT case No. 47 of 1987) New India Assurance Co. Ltd. Appellant v. Smt.Veena Aggarwal Respondent 3. FAO No. 29 of 1991 (in MACT case No. 44 of 1987) New India Assurance Co. Ltd. Appellant v. Smt. Birma Devi and Others Respondents 4. FAO No. 30 of 1991 (in MACT case No. 45 of 1987) New India Assurance Co. Ltd. Appellant v. Behro Mal & Others Respondents 5. FAO No. 31 of 1991 (in MACT case No. 48 of 1987) New India Assurance Co. Ltd. Appellant v. Smt. Saraswati Devi and Others Respondents 6. FAO No. 612 of 1990 (in MACT case No. 12 of 1987) Smt. Sadhna Bargava and Others Appellants v. Manjudhar Singh and Others Respondents FAO No. 786 of 1990 2 CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. L.M.Suri, Sr. Advocate with Mr. Neeraj Khanna, Advocate for the appellant-Insurance Company Mr. Surender Deswal, Advocate for the appellant-claimants ( in FAO No. 612 of 1990) Mr. Adarsh Jain, Advocate **** JITENDRA CHAUHAN.J This order of mine shall dispose of 6 appeals i.e. FAO No.786 of 1990, FAO Nos. 28, 29, 30 and 31 of 1991, filed by the Insurance Company, and FAO No. 612 of 1990, filed by the claimants against the Award dated 20.4.1990, passed by the Motor Accident Claims Tribunal, Faridabad (for short the Tribunal). The Insurance Company has filed the appeals challenging the award with regard to the liability, whereas FAO no.612, filed by the claimants, is for enhancement of the compensation. For the sake of convenience, facts are being extracted from FAO No. 786 of 1990. The brief facts giving rise to these appeals are that on 22.7.1986, a Video Tourist Coach No. NLV-32, owned by Sodhi Transport left Agra for Delhi. The bus was being driven by Manjudar Singh. When the bus reached near Haryana Forest Nursery, at Hodal Bye pass, on Agra- Delhi Highway, another bus bearing registration No. UGO 9528, owned by Uttar Pradesh State Road Transport Corporation ( U.P.S.R.T.C.) came from the opposite side in a rash and negligent manner and struck against Bus FAO No. 786 of 1990 3 No. NLV 32. The accident resulted in the death and injuries to passengers of both the buses. The passengers of Bus No. NLV 32; Raj Kumar, Bhagwati Parshad and Narain Parshad died on the spot. Subhash Bhargava, injured was moved to Safdarjang Hospital, Delhi. He expired on 29.7.1986. The accident was witnessed by Rajesh Kumar. FIR No. 96 dated 22.7.1986 was lodged by him at Police Station, Hodal under sections 279/337/304- IPC. The claim petition MACT No. 12 of 1987 was filed by the wife, children and mother i.e. Dependents of the deceased Subhash Bhargava. According to the claimants, the age of the deceased was 38 years and his monthly income was Rs. 6000./- p.m. The learned Tribunal awarded a sum of Rs.2,16,000/- as compensation. The claim petition MACT No. 45 of 1987 was filed by the parents, wife, brother and sister of deceased Raj Kumar. According to the claimants, the age of the deceased was 27 years and his monthly income was Rs. 3000/- p.m. The learned Tribunal granted a sum of Rs.1,68,000/- as compensation. The claim petition MACT No. 44 of 1987-88 was filed by the wife and children of deceased Bhagwati Parshad . According to the claimants, the age of the deceased was 42 years and his monthly income was Rs. 1000./- p.m. The learned Tribunal granted a sum of Rs.90,000/- as compensation. The claim petition MACT No. 47 of 1987-88 was filed by Smt.Veena Aggarwal widow of deceased Narain Parshad. According to the FAO No. 786 of 1990 4 claimant, the age of the deceased was 25 years and his monthly income was Rs. 2500/- p.m. The learned Tribunal awarded a sum of Rs.1,28,000/- as compensation to the widow of the deceased. The claim petition MACT No. 48 of 1987-88 was filed by the parents of deceased Narain Parshad. According to the claimants, a settlement was made with Mrs. Veena Aggarwal, widow of deceased Narain Parshad and they have paid her Rs. 50,000/-. She has left the matrimonial home and is not entitled to any compensation in lieu of the settlement made. The learned Tribunal granted a sum of Rs.40,000/- as compensation to the parents in equal shares. Upon notices, all the claim petitions were contested by U.P.S.R.T.C. i.e. the owner, and driver of of Bus No. UGO-9528; owner and driver of Bus No. NLV 32 and the Insurance Company. In the written statement filed by U.P.S.R.T.C, and the driver, the accident was admitted. They pleaded that Bus No. NLV-32 was being driven by the driver in rash and negligent manner and in order to over-take a truck, it struck against bus No. UGO 9528 resulting in a head-on-collision. Their stand is that Sodhi Transport and the Insurance Company of Bus No. NLV-32 were liable to compensate the claimants. Owner and driver of Bus No. NLV-32 admitted the accident and death of aforesaid persons in the accident. They attributed the fault to the driver of Bus No. UGO -9528 owned by U.P.S.R.T.C. The Insurance Company in its written statement admitted that the Bus No. NLV-32 was insured with it under Policy No. 4541201666 FAO No. 786 of 1990 5 dated 13.6.1986 for the period from 9.5.1986 to 8.5.1987. They took a stand that the claim is on the higher side and their contractual liability under the Insurance Policy was limited upto Rs. 15,000/- per passenger. All the claim petitions were consolidated and heard together. From the pleadings of the parties, the following issues were framed:- 1. Whether the accident in question took place due to the rash and negligent driving of Bus No. NLV-32 by its driver Manjudar Singh respondent or due to the rash and negligent driving of Bus No. UGO- 9528 by its driver Sheodan Singh? OPP 2. Whether Subhash Bhargava, Raj Kumar, Bhagwati Parshad and Narain Parshad (mentioned inadvertently as Subhash Bhargava, died in the aforesaid alleged accident? OPP 3. Whether the claimants mentioned in claim petition No. 12, 13, 14 and 15 are the legal heirs/ LRs/dependents of the concerned deceased and whether they alone are their legal heirs/LRs/Dependents? OPP 4. Whether any of the present claim petition is bad for non-joinder and mis-joinder of necessary parties? OPR 5. To what compensation, if any, are the present claimants entitled for the death of the aforesaid deceased? If so, from whom and to what extent? OPP 6. Relief” FAO No. 786 of 1990 6 After appreciation of entire evidence on record, the Ld. Tribunal awarded compensation to the claimants as below:- Rs. 2,16,000/- to the claimants in claim petition MACT No. 12 of 1987 Rs. 1,68,000/- to the claimants in claim petition MACT No. 45 of 1987 Rs. 90,000/- to the claimants in claim petition MACT No. 44 of 1987 Rs. 1,28,000/- to the claimants in claim petition MACT No. 47 of 1987 Rs. 40,000/- to the claimants in claim petition MACT No.48 of 1987 It was observed by the Ld. Tribunal that the accident took place due to combined/ contributory negligence of drivers of both the buses and held the drivers and the owners of both the buses equally liable. Aggrieved against the Award passed by the Ld. Tribunal, the appellant-Insurance Company has preferred these appeals. No appeal for enhancement of compensation has been filed in MACT case No. 44, 45, 47 and 48 of 1987. Only FAO No. 612 of 1990 has been filed for enhancement of compensation in MACT case No. 12 of 1987. On 29.3.2010, the Hon'ble Single Bench of this Court passed the following order:- “The Division Bench of this Court on 12.11.1990 had passed the following order:- “Admitted. FAO No. 786 of 1990 7 A sum of Rs.25,000/- deposited in the High Court by the appellant shall be allowed to be withdrawn by the claimants. The balance amount qua the company- appellant is stayed. Registrar (Judicial) shall place the papers before the Hon'ble Chief Justice for constituting a Full Bench at an early date.” So in view of the above said order, the matter be put up before the Hon'ble Chief Justice, for further orders, alongwith connected cases.” Learned counsel for the appellant-Insurance Company contended that the vehicle was insured and the Insurance company had a limited liability of Rs.15,000/- per passenger under the terms of the policy of the insurance and Motor Vehicles Act, 1939. He further argued that the findings of the learned Tribunal that the liability of the Insurance Company would be for the entire compensation are erroneous. The learned Tribunal has wrongly interpreted the terms and conditions of the policy of Insurance Ex.RW3. He further argued that the impugned Award holding the appellant Insurance Company to pay the compensation is against law and facts on the file. On the other hand, the learned counsel for the respondents submits that there is no infirmity in the impugned award and the appeals are liable to be dismissed. I have heard the learned counsel for the parties and perused the record carefully. The only point involved in FAO No. 786 of 1990 and connected appeals is as to “whether the liability of the Insurance Company is to the FAO No. 786 of 1990 8 extent of Rs.15,000/- per passenger or unlimited.” This Court has carefully scanned the entire evidence. On issue No.1, the findings of the learned Tribunal that both the drivers of bus No. NLV-32 and UGO 9528 are equally liable for the accident are hereby affirmed. It is pertinent to mention here that the appeals FAO No.410, to 424 of 1988, in which similar question of law was involved were already referred to the Full Bench. These appeals were ordered to be heard alongwith FAO No.410 of 1988, in which the following law point was for consideration of the Full Bench:- “Whether the liability of the Insurance Company is limited to Rs.15,000/- per passenger or unlimited under the provisions of Section 95(2)(20) of the Motor Vehicles Act, 1939?” While answering the above question, in FAO No. 410 of 1988, the Hon'ble Full Bench on 7.5.2010, held as under:- “Thus, we hold that the Insurance Company is liable to pay the entire awarded amount to the claimant, but it shall have a liberty to claim over and above, the statutory liability from the insured in independent proceedings on establishment of its claim to such amount in accordance with law. After the answer by the Full Bench, these appeals were segregated and relisted for decision on merits. In the present case, the bus was insured vide policy No.451201665, Ex.RW6/1 and the same was valid from 9.5.1986 to FAO No. 786 of 1990 9 8.5.1987, as proved by PW6 Chander Parkash. The accident occurred on 22.7.1986. As per the RW6/1- the Insurance Policy of offending bus bearing registration No.NLV-32, in column schedule of premium, the owner of the bus paid a sum of Rs.432/- for 36 passengers (Rs.12 per passenger), as capacity of the the bus was 36 seaters. No additional amount was paid. As per the schedule of rates of India Motor Tariffs at page 33 (Mark B), the limits of liability have been prescribed as under:- “Applicable to all passenger carrying vehicles except motorised rickshaws Per passenger on total licensed passenger carrying capacity Limits of liability (A) Any one passenger 15000 20000 30,000 Unlimited (B) Any one accident Overll limit depending upon the total licensed passenger carrying capacity Rate per passenger Rs.12/- Rs.23/- Rs.30/- Rs.50/- As it has been specifically provided as per the “limits of liability”, the appellant-Insurance Company is liable to pay only Rs.15,000/- per passengers as the owner of the bus bearing registration No.NLV-32 has paid premium of Rs.432/-only, the findings of the learned Tribunal that liability of the Insurance Company per passenger was not limited to Rs.15,000/-, but was unlimited, is reversed. It is held that the liability of the New India Insurance Company -appellant in all the appeals is limited upto Rs.15,000/- per passenger only. As already held, it is a case of contributory negligence of both the drivers. Accordingly, the appellant -Insurance Company is to pay half of the total compensation and then recover it from the driver and the owner of Bus bearing registration No.NLV-32 beyond FAO No. 786 of 1990 10 Rs.15,000/- per passenger/deceased in view of the decision of the Full Bench referred to above. The appeals filed by the Insurance Company i.e. FAO No.786 of 1990 and FAO Nos. 28, 29, 30, 31 of 1991, are allowed. FAO No. 612 of 1990 FAO No. 786 of 1990 and FAO No. 612 of 1990 have arisen out of same award passed in MACT case No. 12 of 1987. From the perusal of the record, the income of deceased Subash Bhargav assessed by the learned Tribunal at the rate of Rs.2600/- per month is just and adequate. However, the deceased was 38 years of age and he left behind five dependents i.e. old mother, wife and three children. In view of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009(3) RCR (Civil) 77, the dependency of 3/4th and multiplier of 15 ought to have been applied. Ordered accordingly. No amount has been awarded towards conventional heads. Therefore, this Court feels that grant of Rs.20,000/- under the conventional heads would meet the ends of justice. Ordered accordingly. Accordingly, the total amount of compensation comes to Rs.3,71,000/- (2600 (monthly income) x 3/4th (dependency) x 12 x 15 (multiplier) +20,000 ( conventional heads). The balance enhanced amount i.e. Rs. 1,55,000 (3,71,000 -2,16,000 (already awarded by the learned Tribunal) shall be paid to the claimant-appellants, in the manner indicated in the impugned Award, within 45 days from the date of the receipt of the certified copy of the judgment, failing which, the appellant shall be entitled to get interest @ 7.5% per annum from the date of the filing of the appeal till FAO No. 786 of 1990 11 its realisation. With the above modification in the impugned award, this appeal is partly allowed. Photocopy of the judgment be placed on the each file of the connected appeals. (JITENDRA CHAUHAN) JUDGE 31.10.2011 MS/gsv Note: Whether to be referred to the Reporter? Yes/No.