FAO No. 1028 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1028 of 1989 Date of decision .4.2010. United India Insurance Company Limited ...... Appellant. versus Surjit Kaur and others ...... Respondents. Present : Mr. Neeraj Khanna, Advocate for the appellant. Mr. Gur Rattan Pal Singh, Advocate for the claimant. Mr. R.L.Sharma, Advocate. FAO No. 1108 of 1989 Surjit Kaur ...... Appellant. versus Jarnail Singh and others ...... Respondents. Present : Mr. Gur Rattan Pal Singh, Advocate for the appellant. Mr. Neeraj Khanna, Advocate for Insurance Company. Mr. R.L.Sharma, Advocate. K.C.PURI. J. By this common order, I intend to dispose of FAO No.1028 FAO No. 1028 of 1989 2 of 1989 titled as United India Insurance Company Ltd. versus Surjit Kaur & others and FAO No.1108 of 1989 titled as Surjit Kaur versus Jarnail Singh & others as these appeals arise from the same award. For convenience facts are being taken from FAO No.1028 of 1989. The appellant in FAO No.1028 of 1989 has filed this appeal against the award dated 10.4.1989 passed by learned Motor Accident Claims Tribunal, Ropar seeking modification in the impugned award to the extent that it be absolved from the liability whereas appellants in FAO No.1108 of 1989 have filed the appeal seeking enhancement of the compensation amount. The brief facts of the case are that on 7.11.1987 at about 7.30/8.00 P.M., Jarnail Singh @ Maru respondent No. 1 was driving his tractor No. PBR-6712 on which deceased Sukhvinder Singh and Kuljinder Singh sons of Pritam Singh residents of village Badali were sitting. The deceased and Kuljinder Singh were shouting to slow down the speed, but Jarnail Singh drove the tractor very rashly and negligently. The Tractor hit the side of tubewell house, situated by the side of the road. As a result of which, Sukhvinder Singh deceased and Kuljinder Singh fell down. Sukhvinder Singh received multiple injuries, which proved fatal. The occurrence was witnessed by Mohan singh, who lodged the FIR. Prem Singh respondent had died and his legal representatives Jarnail Singh, Jaswant Singh, Nirmal Singh and Gurmel Singh were already arrayed as respondents. In the written statement filed by respondents No. 1 to 5, it is FAO No. 1028 of 1989 3 submitted that Sukhvinder Singh was illiterate and was not doing any job. The claimant has her own property, both landed as well as cash, having bank balance approximately to the tune of Rs.70,000/-. She inherited the property from her husband Garja Singh and she is enjoying monthly pension of Rs.500/-. The tractor, which Jarnail Singh respondent drove was meant for agricultural purposes only. On the day of occurrence, he was returning to his village Badali after taking diesel from Kurali, which is hardly at a distance of one kilometre from the village. The deceased had taken a lift on his tractor while returning to the village. The deceased was neither a passenger nor the tractor was a passenger vehicle. Since the tractor was carrying wooden “Suhaga” on its left portion which struck against the pucca drainage on the main road, so the deceased fell down with the said jerk and did not strike against the tractor at all. The fault was on the part of the deceased, who could not stand the jolt. It is alleged that the claimant was not dependent upon the deceased. Respondent No.6 in his written statement submitted that claim petition against him does not lie as the answering respondent is not liable to pay any claim. The offending vehicle was being driven at the time of accident for the purpose other than it was insured. As per terms and conditions of the policy, no passenger was allowed to be carried on the tractor. The deceased was sitting on the tractor as a passenger at the time of accident and as such claim, if any, lies against the owner and driver of tractor No.PBR-6712. It is submitted that Sukhvinder Singh died due to his own act and conduct for want of FAO No. 1028 of 1989 4 proper care while sitting on the tractor at the time of accident. Following issues were framed :- 1. Whether the accident in question was caused by the rash and negligent driving of tractor No.PBR-6712 by Jarnail Singh respondent on 7.11.1987 at about 7.30/8- 00p.m. in the area of Kurali ?OPP. 2. Whether the claimant is entitled to compensation for the death of Sukhvinder Singh in the aforesaid accident. If so, to what amount and from which of the respondents ? OPP 3. Whether the claim petition is maintainable against respondent No.6 in view of plea taken in para No.1 of the preliminary objections ? OPP 4. Relief. The parties have led their evidence on the aforesaid issues. The Tribunal after appraisal of the evidence and after hearing learned counsel for the parties, held Surjit Kaur claimant entitled for a sum of Rs.44,000/- as compensation payable by United India Insurance Company-respondent No.6 for the loss of life of Sukhvinder Singh in the motor vehicular accident caused by Jarnail Singh respondent No.1. The said amount was ordered to be paid to the claimant within two months failing which the Tribunal held the claimant entitled to claim interest @ 12% p.a. from the date of award till realization. Feeling dissatisfied with the above said Award of the Motor Accident Claims Tribunal, Ropar, the instant appeals have been preferred, as aforesaid. I have heard learned counsel for the parties and perused the case file. FAO No. 1028 of 1989 5 The appellant-United India Insurance Company filed FAO No.1028 of 1989 for absolving the Insurance Company from any liability whereas Surjit Kaur has filed FAO No.1108 of 1989 for enhancement of compensation. Since both the appeals have arisen out of the same accident and Award and as such being disposed of by the common judgment. The learned counsel for the appellant- United India Insurance Company has submitted that it is admitted case of the parties that deceased was travelling on the mudguard of the tractor. It is contended that according to Motor Vehicles Act, 1988, Section 147 (1) and Rules of the Road Regulations, 1989, Regulation No.28 of Rules of the Road Regulations, clearly envisaged that tractor has permitted sitting capacity only for the driver. The said Regulation 28 of the Rules of the Regulations prohibits the carrying of any passenger on the mudguard of the tractor. So, there is clear violation of the said Rules and as such the Insurance Company is not liable to pay the amount. To support this contention learned counsel for the Insurance Company has relied upon authority National Insurance Company Co. Ltd. vs. Bramaranbike and others 2006 ACJ page 671. It is further submitted that the Hon'ble Apex Court in authority M.V.Jayadevappa and another vs. Oriental Fire & Genl. Ins. Co. Ltd. and others 2005 ACJ 1801 held that where the passengers are carried in a goods vehicle in that case the Insurance Company is not liable to pay the amount of compensation. Learned counsel for the appellant has also relied upon FAO No. 1028 of 1989 6 authority New India Assurance Co. Ltd vs. Vedwati & Ors. JT 2007 (4) SC 28 and on the strength of the same, it is argued that passenger cannot be carried on the mudguard of the tractor. So, the insurance company is not liable. It is further contended that Tribunal has itself held that deceased has contributory negligent by sitting on the mudguard. In reply to the above noted submission, learned counsel for the claimant has submitted that deceased was with respondent No.1, who was driving the tractor rashly and negligently. Sukhvinder Singh and Kuljinder Singh sons of Piara Singh were sitting on the tractor and were shouting to slow down the speed, Jarnail Singh drove the tractor rashly and negligently and the tractor hit the side of tube well house, resulting in death of Sukhvinder Singh. So, it is contended that the appellant Surjit Kaur being mother of the deceased Sukhvinder Singh is entitled to compensation. The Insurance Company is also liable to pay the compensation. The Tribunal has wrongly held that Sukhvinder Singh is contributory negligent. There is no contribution made by Sukhvinder Singh. The amount assessed by the Tribunal is on the lower side and the deceased was a welder and was running a shop at Kurali. He used to give Rs.1500/- per month to the claimant/appellant. She is dependent upon the income of deceased Sukhvinder Singh. The dependency has been taken only Rs.500/- per month. The age of deceased was 18 years. The multiplier of 14, applied by the Tribunal, is on lower side. Prayer has been made for enhancement of compensation. FAO No. 1028 of 1989 7 I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have gone through the records of the case. The first and fore most question which requires to be determined in the present appeal is whether the Insurance Company is liable to pay the compensation amount in respect of death of a person travelling on the mudguard of the tractor. The answer to that question is in negative. This aspect of the case is not res integra. The Hon'ble Apex Court in authority New India Assurance Co. Ltd vs. Vedwati & Others' case (supra) has categorically given finding that person travelling on a tractor is not covered by the terms of the policy and insurer is not liable to pay the compensation. In the said case also, the deceased was travelling on a tractor. The Tribunal as well as High Court held the Insurance Company liable to pay the compensation but the Hon'ble Apex Court allowed the appeal and gave a finding that insurer is not liable. Again in authority M.V.Jayadevappa and another's case (supra), the three Judges Bench of Hon'ble Supreme Court held that Insurance Company is not liable to pay the compensation if the deceased was travelling in a goods carrier in contravention to the terms of the policy inasmuch as passenger cannot be allowed to travel in a goods vehicle. Hon'ble Karnataka High Court in authority National Insurance Co. Ltd. vs. Bramaranbike and others 2006 ACJ 671, while FAO No. 1028 of 1989 8 dealing with the Regulation 28 in Appendix -2 pertaining to the Rules of the Road Regulations, 1989 formulated under Motor Vehicles Act, delivered a finding that driver of the tractor shall not be allowed to carry or allow any such passenger to be carried on the mudguard of the tractor. The effect of the Regulation 28 makes any person travelling in a tractor as illegal and in that case Insurance Company shall not be liable. In that ruling, it has been held that vide Regulation 28 referred to above, the permitted sitting capacity is only that of a driver. So, in view of the above discussion, the appeal of the Insurance Company has to be accepted. It is held that Insurance Company is not liable to pay the amount of compensation. Now the second question for determination in the present case is whether the finding of the Tribunal holding deceased contributory negligence while sitting on the mudguard called for any interference. The answer to that question is also in negative. As discussed above, according to the Regulation 28 referred to above, the sitting capacity of the tractor is only that of a driver and there is no place for the passenger on the mudguard of the tractor. The person travels on the mudguard has died due to his own act and the Tribunal has rightly held that the deceased has contributory negligent in the accident. The 3rd question, which requires determination is whether a case is made out for enhancement of compensation as per the appeal of the claimants. In this case, the deceased according to the claimant was FAO No. 1028 of 1989 9 running a welder shop at Kurali and the income of the deceased according to the claimant was Rs.1500/-per month. The trial Court has taken the dependency of the claimant as Rs.500/- per month and yearly dependency is calculated as Rs.6000/-. The multiplier applied by the Tribunal was 14 and the amount calculated was Rs.84,000/-. Keeping in view the contributory negligence of the deceased, the compensation amount is held to be Rs.42,000/-. Another Rs.2000/- was allowed to the claimant on account of last rites and in this manner the claimant was held entitled to claim Rs.44,000/-. The Tribunal has not assessed the income of the deceased. He was unmarried and the claimant has stated that deceased was earning Rs.1500/- but that fact cannot be taken as gospel truth. So, the income of the deceased can be taken as Rs.1000/- per month. The dependency in these circumstances has been rightly taken as Rs.500/- per month as the deceased was unmarried. So, the multiplier applied at the age of claimant as 14 is also correct. So, the Tribunal has allowed Rs.2000/- regarding last rites. So, in these circumstances, no case for enhancement is made out. In view of the above discussion, appeal No. FAO 1108 of 1989 for enhancement stands dismissed whereas the appeal bearing FAO No.1028 of 1998 preferred by United India Insurance Company stands accepted and it is held that United India Insurance Company Ltd., is not liable to pay the amount of compensation. However, keeping in view authority National Insurance Co. Ltd. vs. Swaran Singh 2004 Accidents Claims Journal reported at page 1, it is held that the FAO No. 1028 of 1989 10 amount of compensation shall be paid by the Insurance Company to the claimants in the first instance, if already not paid. The Insurance Company shall be entitled to recover the amount from the owner and the driver of the offending vehicle. In case, the amount has already been deposited by the Insurance Company in that case, the insurance company shall be entitled to recover from the owner and driver along with interest @ 7% p.a. from the date of appeal till realization. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE April 19th, 2010 sv