FAO No. 5604 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 5604 of 2009 and X-objection No. 75-CII of 2010 Date of decision 28.9.2011 Surinder Kaur Appellant v. Gurvinder Singh and others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Sh. Paul S. Saini, Advocate for the appellant Mrs. Shamsher Kaur, Advocate for the Insurance Company-respondent No.6 .... JITENDRA CHAUHAN.J This appeal has been filed by the Appellant-respondent No.1, Smt. Surinder Kaur against the Award dated 26.10.2009, passed by the Motor Accident Claims Tribunal, Yamunanagar (for short the Tribunal), whereby claimants-respondents No. 1 to 5 have filed Cross Objection for enhancement of amount of compensation . The brief facts of the case are that on 31.3.2008, Bachna Ram and Harkirpal Singh were returning to their village Kishanpura after attending the retirement party of Balbir Singh at Chhachhrauli. Harkirpal Singh was driving motor cycle No. CH-03-4574 and Bachna Ram was the pillion. When they crossed Village Urjani, suddenly a stray cow appeared on the road. Harkirpal Singh lost control over the bike and it struck against the adjacent culvert wall. Both the occupants i.e Harkirpal Singh and Bachna Ram died on the spot. D.D.R.No. 8 dated 1.4.2008 was recorded by the police at Police Station, Chhachhrauli. FAO No. 5604 of 2009 2 Upon notice, respondent No. 1, owner of the motor cycle admitted the accident. The said vehicle was insured with respondent No.2. At the time of accident. Harkirpal Singh was driving the motor cycle and was having a valid driving licence. Respondent No.2, the Insurance Company filed its separate written statement denying the accident and pleading that the driver was not holding the valid and effective licence to drive the motor cycle and that the vehicle was being plied in violation of the terms and conditions of the Insurance Policy, Ex.R-1. From the pleadings of the parties, the following issues were framed:- 1. Whether the death of Bachna Ram and Harkirpal Singh took place in an accident involving motorcycle No. CH-03-4574? OPP 2. Whether the claimants are the only legal representatives of the deceased and entitled to compensation? OPP 3. Whether the motorcycle was being driven in contravention with the terms and conditions of insurance policy? OPR-2. 4. Relief.” After examining the evidence on record with regard to issue No.1, the Ld. Tribunal held that it is proved on record that Harkirpal Singh and Bachna Ram had sustained injuries due to the use of motorcycle in question and died on account of the injuries sustained. While deciding issue Nos. 2 & 3, the Ld. Tribunal observed as under:- “20. Motorcycle bearing No. CH-03-4574 was owned by respondent No.1. It was driven by Harkirpal Singh (deceased) FAO No. 5604 of 2009 3 whereas Bachna Ram (deceased) was on its pillion. 21.Learned counsel for the claimants seeking support from Oriental Insurance Company Ltd. Vs. Vandana and Others 1 (2007) ACC 398 (Rajasthan) has urged that when the vehicle is not being used as commercial one/taxi, carrying of relations, friends etc. of owner is not barred under the Act. It is contended that the bar is only against using of vehicle for carrying passengers on hire. In the cited authority, it was a case of jeep in which the injured were traveling as passengers and vehicle was being used as a commercial one. In the present case, situation is entirely different. It is a case of a two wheeler. 22. Learned counsel for the insurance company has sought support from New Delhi Assurance Company Limited Vs. Sadanand Mukhi and Others 2009 (1) RCR (Civil) 817 (SC). In the cited authority, son of owner while driving the motorcycle had met with an accident resulting in his death. The accident had taken place as a stray dog had come in front of the vehicle. The accident had occurred by use of vehicle and not by negligence of the driver. It was held that son of owner was not a third party in relation to insurance company.” Learned Tribunal further observed that in the present case, Harkirpal Singh was a borrower of the vehicle from respondent No.1, whereas Bachna Ram was the pillion. Premium for the pillion had not been paid by the registered owner-appellant and insured of the vehicle. FAO No. 5604 of 2009 4 Therefore, the Insurance Company is not liable to pay the compensation for the death of Bachna Ram. The Ld. Tribunal after taking into consideration, the age and calculating the income of the deceased, awarded a total sum of Rs. 1,69,500/- to the claimants, out of which Rs. 9500/- was ordered to be paid to Smt. Paramjit Kaur, widow of deceased Harkirpal Singh. Remaining Rs. 1,60,000/ was ordered to be equally paid to respondent Nos. 4 & 5. The Ld. Tribunal did not award any compensation to the sons of deceased being major and were not dependent on the income of their father. Claim petition qua them was dismissed. Aggrieved against the Award dated 26.10.2009 of the Ld. Tribunal, respondent No.1-owner of motor cycle has filed the present appeal. It was urged that the amount of compensation is on the higher side; the award is based on surmises and conjectures and without going into the facts of the case. It is further argued that the Insurance Company had been wrongly absolved of the liability and the appellants ought not to have been fastened with the liability. X-objections No. 75-CII of 2010 were filed by the claimants alleging that the Ld. Tribunal did not appreciate the facts and circumstances of the case in the right perspective and awarded inadequate and meagre compensation to the claimants. I have heard the learned counsel for the parties and perused the case file carefully. A perusal of the Award shows that the Ld. Tribunal has rightly decided Issue Nos. 1 to 3 after going through the evidence led by the parties. While deciding the question, as to who would pay the amount FAO No. 5604 of 2009 5 of compensation to the claimants, in para 24 of the Award, the Ld. Tribunal observed as under:- “Learned counsel for the insurance company however has urged that additional risk can be covered only if additional premium has been paid. Referring to policy (Ex.R- 1) which is in contravention with “Act Policy” is “Package Policy” for Clause B. On perusal of the contents of this policy, it transpires that no extra premium for pillion rider had been made. If additional premium for covering additional risk has not been paid, liability of the insurance company does not arise. Learned counsel for the insurance company has gone to the extent of arguing that even if owner himself is driving his own vehicle and dies, the legal heirs are not entitled to claim compensation under section 163-A of the Act. In Ningamna and another v. United India Insurance Company Limited 2009 (3) RCR (Civil ) 435 (SC), it has further been held that even if a borrower of a vehicle dies in a accident, even his legal heirs are not entitled to claim compensation from the Insurance Company under Section 163-A of the Act.” Accordingly, the Ld. Tribunal held that respondent No. 1 Smt. Surinder Kaur i.e. owner of the motor cycle is liable to pay the amount of compensation to the claimants in the present case. The Ld. Tribunal further held that there was no merit in the claim petition against the respondent Insurance Company and the same was rightly dismissed. In view of the well-reasoned findings of the Ld. Tribunal, no ground is made out to interfere in the appeal filed by the owner-Smt. FAO No. 5604 of 2009 6 Surinder Kaur. The same is dismissed. So far as the Cross-objection No. 75-CII of 2010, filed by the claimants-respondents No. 1 to 5 of deceased Harkirpal Singh, for enhancement of the amount of compensation awarded by the Ld. Tribunal is concerned, it would be appropriate to reproduce the findings arrived at by the Ld. Tribunal in paras 26 to 28 of the Award, which are as under:- “26. However, compensation payable to the legal heirs of the deceased is being calculated Smt. Paramjit Kaur is widow of Harkirpal Singh. Appearing as PW3, she has mentioned that her husband was earning Rs. 2000/- to Rs. 3,000/- per month from sale of milk as he was keeping two buffalos. He was 50 years of age. She has mentioned names of three sons who have been born to her from the loins of Harkirpal Singh. She has stated that her mother-in-law Smt. Shamsher Kaur is dependent on her. She has not given age and marital status of her sons and has also not disclosed as to how they are dependent on her. Rather, a look at the claim petition reveals that all the sons are more than 18 years of age, whereas the widow Smt. Paramjit Kaur has shown herself to be 42 years of age and has shown her mother-in-law to be 70 years old. Thus, claimants No. 1 to 3 i.e. Gurvinder Singh, Kulwinder Singh and Amandeep Singh are not entitled to any compensation as they are major and are enable to earn their livelihood themselves and were not dependent on the income of Harkirpal Singh (since deceased). Petition on behalf of claimants No. 1 to 3 thus being not on merit and is dismissed. FAO No. 5604 of 2009 7 27. As per chart appended in Schedule II, for a deceased 50 years, a multiplier of 11 is to be applied. Applying the multiplier of 11, the compensation thus payable to the claimants would come to Rs. 2,40,000/-. 28. As per note appended to the said Schedule, 1/3rd is to be reduced in consideration of the expenses which the victim would have incurred in maintaining himself, had he been alive. Deducting 1/3rd thereof the compensation comes to Rs. 1,60,000/-. As per Clause-3 of the Schedule, funeral expenses would be Rs. 2,000/- loss of consortium would be Rs. 5,000/- and loss of estate would be Rs. 2,500/-. Thus, the claimants are entitled to a sum of Rs. 1,60,000/- as compensation. Besides this amount, a sum of Rs. 2,000/- is also awarded to the widow Paramjit Kaur (claimant No.4) on account of funeral expenses. The widow-claimant No. 4 is also awarded a sum of Rs. 5,000/- as compensation on account of consortium. The widow claimant No.4 is also awarded a sum of Rs. 2500/- as compensation on account of loss of estate.” In view of the above findings of the Ld. Tribunal, no ground is made out to enhance the compensation. Thus cross-objection filed by the respondents-claimants stands dismissed. (JITENDRA CHAUHAN) JUDGE 28.9.2011 MS