IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 629 of 1992(O&M) Date of Decision : August 25, 2009 Satbir and another ....Appellants Versus Smt. Samundri and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. N.C.Kinra, Advocate for the appellants. Mr. R.N.Lohan, Advocate for respondents No.1 to 4. Mr. R.C.Gupta, Advocate for Mr. Pradeep Bedi, Advocate for respondent No.5. T.P.S. MANN, J. Alongwith the present appeal, the Court intends to dispose of F.A.O. Nos. 630 and 815 of 1992 and Cross-Objections No. 97-CII of 1992 as all of them arise out of one and the same accident, which had taken place on 27.12.1990 at 10.15 a.m. near Sitapur colony within the jurisdiction of Police Station City, Jind and the two claim petitions filed by two sets of claimants, who were legal heirs of the two deceased, namely, Dev Parkash and Ramesh Kumar, were consolidated by the learned Motor Accidents Claims Tribunal, Jind and decided by a common award rendered on 22.1.1992. FAO No. 629 of 1992(O&M) -2- The case of the claimants before the learned Tribunal was that Dev Parkash and Ramesh Kumar, who were unskilled workers of Co-operative Sugar Mill at Jind, boarded truck No. HYJ-1737 after their duty hours on 27.12.1990 from the gate of the Mill for going to the town. The truck was owned by Jiwan Dass and hired by the Sugar Mill for transporting the sugarcane and was being driven at the relevant time by Satbir. The aforementioned two workers were accompanied by Jaswant Singh and other employees. At 10.15 a.m. the truck reached near Sitapur colony and when the truck driver attempted to overtake a scooter, he lost control as a result whereof the truck dashed against the tree on the roadside. The truck overturned and both Dev Parkash and Ramesh Kumar received injuries to which they succumbed lateron. FIR No. 549 dated 27.12.1990 was registered against the truck driver on the basis of a statement made by Jaswant Singh. Two claim petitions were filed under Section 166 of the Motor Vehicles Act, 1988, one at the instance of Smt. Samundri and others, the widow and the minor children of Ramesh Kumar while the other by Smt. Rani and others, the widow and the parents of Dev Parkash. Both set of claimants prayed for awarding compensation to them as the lives of Ramesh Kumar and Dev Parkash, upon whom they were dependent, were cut short in the accident caused by Satbir, who was driving the offending vehicle, which was owned by Jiwan Dass and insured with National Insurance Company Ltd. Satbir, Jiwan Dass and FAO No. 629 of 1992(O&M) -3- National Insurance Company Ltd. were sought to be held jointly and severally liable for paying the compensation. While opposing the claim petitions, the owner and driver of the offending vehicle pleaded that there was neither any negligence nor rashness on the part of the truck driver and it was a case of accident pure and simple as the vehicle overturned because of a mechanical defect and not while trying to overtake a scooter. Moreover, the truck was deployed for loading and unloading sugarcane and all the labourers and the officials of the sugar Mill were present on the truck in their capacity as owner/custodian of goods. The Insurance Company also denied its liability on the ground that the goods vehicle was not meant for carrying of passengers and it was being plied in contravention of the terms and conditions of contract of insurance. Subsequent to consolidation of the claim petitions, learned Tribunal framed the following issues:- 1. Whether the accident took place on account of rash and negligent driving of truck No. HYJ-1737 resulting in the death of Ramesh and Dev Parkash? 2. To what amount of compensation the petitioners are entitled to, if so from whom and in what proportionate? 3. Whether respondent No.1 had no valid driving licence and fitness certificate at the time of accident, if so its effect? FAO No. 629 of 1992(O&M) -4- 4. Whether respondent No.2 was not owner of the vehicle in question on the date of accident? 5. Whether the vehicle in question is goods vehicle and was used for the purposes for which he had no permit, if so its effect? 6. Whether the liability of the Insurance company is limited, if so to what amount? 7. Whether the accident in question was an act of God, if so, its effect? 8. Relief. After hearing learned counsel for the parties and going through the evidence on record, learned Tribunal came to the conclusion that the truck driver was guilty of rash and reckless driving resulting in the unfortunate accident in which two persons lost their lives. Issue regarding holding of valid driving licence and fitness certificate was not pressed by the Insurance Company. Similarly, it was held that Jiwan Dass was owner of the offending vehicle and he had secured insurance policy Ex.R2 which was valid for the period from 5.1.1990 to 4.1.1991. However, it was held that at the relevant time, the truck was being plied in violation of the terms and conditions of contract of insurance and, therefore, the Insurance Company was absolved of the liability. Each set of the claimants was held entitled to receive an amount of Rs.1,92,000/- as compensation to be shared by them equally and against the driver and owner of the offending truck, who were jointly and severally liable. The claimants were also held entitled to recover interest FAO No. 629 of 1992(O&M) -5- on the aforementioned amount @ 12% per annum from the date of filing of their respective claim petitions till the satisfaction of the award. Aggrieved of the impugned award, both Satbir and Jiwan Dass, driver and owner of the offending vehicle, filed the present appeal, i.e. FAO No. 629 of 1992 against Smt. Samundri and others whereas they also filed FAO No. 630 of 1992 against Smt. Rani and others wherein they have prayed for setting aside of the impugned award and dismissal of their respective claim petitions. Smt. Samundri and others also filed FAO No. 815 of 1992 whereas Smt. Rani and others did not file any separate appeal but chose to file Cross-objections No. 97- CII of 1992 in the appeal, i.e. FAO No. 630 of 1992 filed by Satbir and Jiwan Dass, whereby both sets of the claimants have sought enhancement of the amount of compensation. I have heard learned counsel for the parties and perused the evidence as well as the impugned award. Both Satbir and Jiwan Dass, the driver and owner of the offending vehicle, have filed applications under Order XLI Rule 27 CPC so as to produce judgment dated 15.10.2001 passed by this Court in Criminal Revision No. 749 of 2001 (Annexure A-1) by way of additional evidence. Vide said judgment, Satbir was acquitted of the charges under Sections 279 and 304-A IPC. However, the said judgment does not have any effect on the present set of the two appeals FAO No. 629 of 1992(O&M) -6- filed by Satbir and another as the same had been rendered on the basis of the evidence produced before the criminal Court. Therefore, the two applications i.e. C.M. Nos. 13323-CII and 13325-CII of 2006 filed by Satbir and Jiwan Dass are, hereby, dismissed. It was the case of the claimants that at the relevant time the offending truck was being driven by Satbir in a rash and negligent manner and when Satbir tried to overtake the scooter, he could not control the truck as a result whereof the truck hit a tree standing on the roadside. Both Dev Parkash and Ramesh Kumar, who were present on the truck, received injuries on account of the accident and lateron they succumbed to those injuries. At the relevant time Jaswant Singh son of Sube Singh was also one of the persons accompanying deceased Dev Parkash and Ramesh Kumar. Said Jaswant Singh was examined as PW3 and stated that on 27.12.1990 he was present near sugar mill gate. Ramesh Kumar and Dev Parkash were also with him. Truck No.HYJ- 1737 came from inside the sugar mill and all of them boarded the said truck at the main gate. All of them sat inside the truck. The truck was driven at a speed. When the truck reached near Patiala chowk, a scooterist was going ahead of it. The scooterist was on his proper side. However, the truck driver was driving the truck in a rash and negligent manner and while overtaking the scooter lost control and dashed the truck against the tree. Due to the impact of the accident, Dev Parkash and Ramesh Kumar received fatal injuries whereas he himself also FAO No. 629 of 1992(O&M) -7- received injuries. Lateron, he had made a statement before the police and FIR was registered on its basis. In his cross-examination, he deposed that the truck had unloaded the sugarcane in the sugar mill. All the employees of the sugar mill could travel in the trucks working in the sugar mill. The deceased were working in the factory on the machines. However, they had no concern for bringing or unloading the sugarcane. He also admitted that none of them had paid any fare to the truck driver nor he had demanded the same nor also any fare was settled. At the relevant time he was on way to field duty whereas both the deceased had finished their shift and were on their way home. He denied the suggestion that the truck overturned due to the breaking of the front axle and nut bolt or that the truck was not being driven rashly or negligently. On the other hand, Satbir, the driver of the offending truck himself stepped into the witness box as RW1 and deposed that at the relevant time he was neither rash nor negligent in driving the truck. Instead, the truck was being driven at a slow speed. The accident took place because of the mechanical defect. To support his plea he tendered in evidence certified copy of the report of mechanic as Ex.R1. However, he failed to examine the said mechanic so as prove the contents of the report or to depose that there was a mechanical defect in the truck which led to the accident taking place. Even otherwise, a perusal of report Ex.R1 would reveal that the front axle and the nut bolts were found damaged and so also the foundation nut of the engine on the driver side. FAO No. 629 of 1992(O&M) -8- Apparently, the damage to the truck had resulted from its dashing against the tree and not that the axle and nut bolts of the truck had earlier broken as a result of which the accident took place. The self serving statement of RW1 Satbir, the driver of the offending vehicle, cannot absolve him of the liability, more so when we have testimony of PW3 Jaswant Singh on the record, who was an independent witness and working in the same sugar mill in which the two deceased worked on the machines. Therefore, learned Tribunal was justified in concluding that it was the truck driver, who was guilty of rash and reckless driving which led to the accident as a result whereof two persons lost their lives. According to learned counsel representing Satbir and Jiwan Dass, the driver and owner, respectively of the offending truck, the truck in question stood insured with the National Insurance Company Ltd. and, therefore, learned Tribunal erred in absolving the Insurance Company of its liability to indemnify them from paying the compensation amount. From the evidence, it stands established that the two deceased were gratuitous passengers in the offending truck at the relevant time. Both of them had no concern with loading or unloading the sugarcane for which the offending truck had been hired by the sugar mill. The two deceased used to work in the factory on the machines and after finishing their shift, they were on their way home. None of them had paid any fare to the truck driver nor any fare had been demanded FAO No. 629 of 1992(O&M) -9- from them nor also any fare was settled. Even otherwise, the truck was a goods vehicle and not meant to carry passengers, except those required for loading or unloading of sugarcane. Under these circumstances, the Insurance Company was not liable to indemnify the driver and owner of the offending truck. However, keeping in view the interest of the claimants, the Insurance Company can be directed to pay the amount of compensation in the first instance and thereafter to recover the same from the insured by simply initiating proceedings before the executing Court without filing any independent civil suit. In this regard, reliance can be placed upon Oriental Insurance Co. Ltd. V Nanjappan and others 2004 ACJ 721, wherein it was held as under:- “Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case, 2004 ACJ 428 (SC), that the insurer shall pay the quantum of compensation fixed by the Claims Tribunal, about which there was no dispute raised, to the respondents-claimants within 3 months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned executing Court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured (sic), owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which FAO No. 629 of 1992(O&M) -10- the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing Court shall take assistance of the concerned Regional Transport Authority. The executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs”. As regards the plea of the claimants that learned Tribunal awarded inadequate compensation to them, there is evidence on record of PW2 Satbir Singh, Time Keeper, who stated that the two deceased were unskilled workers of the sugar mill and were their in mid twenties at the time of the accident. As per the pay certificates Ex.P2 and mark 'A' deceased Dev Parkash and Ramesh Kumar, respectively were drawing monthly salary of about Rs.1600/-. After taking into consideration the totality of the circumstances on record including social status of both families, learned Tribunal held that each of the deceased was contributing an amount of Rs.1000/- every month to his family members. The annual dependency was, thus, calculated as Rs.12,000/- and thereafter, a multiplier of 16 was adopted so as to grant an amount of Rs.1,92,000/- to each of the two sets of the claimants. Thus, no case FAO No. 629 of 1992(O&M) -11- is made out for enhancing the compensation granted to the claimants by the learned Tribunal. Accordingly, the decision of the learned Tribunal in awarding an amount of Rs.1,92,000/- to Smt. Samundri and others for the death of Ramesh Kumar and a similar amount to Smt. Rani and others for the death of Dev Parkash is upheld. Both the driver and owner of the offending truck shall be jointly and severally liable to pay the said amount alongwith interest @ 12% per annum from the date of filing of the claim petitions till the satisfaction of the award. However, keeping in view the dictum of law as laid down in the case of Oriental Insurance Co. Ltd. (supra), the National Insurance Company shall pay the compensation amount to the claimants in the first instance. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate the proceedings before the executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the learned Tribunal and the issue stood decided against the owner and in favour of the insurer. It may also be stated here that before release of the amount, the insured i.e. the owner of the vehicle shall be issued a notice requiring him to furnish security for the entire amount which the insurer would pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises, the executing Court shall take assistance of the concerned Regional Transport Authority. The executing Court shall FAO No. 629 of 1992(O&M) -12- pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default, it shall be open to the executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. All the appeals and the Cross-objections are, therefore, disposed of. Directions, as above, are issued to the Insurance company regarding payment of the compensation amount but still retaining the right to recover the same from the insured. ( T.P.S. MANN ) August 25, 2009 JUDGE ajay-1