t 59 1 NoO568 of 2004 1 52 J 4d A IN THE HlGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No2568 of 2004 Date of 0 CC 0 National Insurance CompanyLtde 0 Appellante I C5 versus I 4 Arit Mohan and others Z 1 t 1 Present Mr RMSuri Advocate for the appeant a5 Ia Z FAO Nol569 of 2004 and Cross ObicctionN0056CII of2006 National Insurance CompanyLtd Appellant versus Babli and othcrs Rcspondents Present2 Mr RlVISuri Advocate for the appellante Mr Gaurav Sharma Advocate for thc claimants FAO No140 of 2004 and . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 0 FAO No2568 of 2004 2 S1 4 4 Cross ObjectionNo7 Cll of2006 National Insurance Company Ltd Appcllant versus 1 r Sat Pal Sharma and others 0 0 I 0 Present l Mr RlVlSuri Advocatc for the Mr Parmindcr SinghAdvocate for the respondcntNo1 Z KCPURI J C By this common order I intend to disposeof FAO No568 I of 2004 National lnsurance CompanyLtd vcrsus Arit Mohan and 08 others FAO Noe2569of 2004 antNational Insurance CompanyLtde 7 versus Babli and othcrs alongwith Cross ObjcctionNo6 Cll of 2006 Z and FAO Nol40 of 2004 National lnsurancc CompanyLtd versus Sat Pal Sharma and others alongwith Cross ObjectionNo7 CIl of 2006 as thcse appealsand crossobjcctions arisc out of the same award and incident 1hese appeaIshavc been directed by the appellant Insurance Companyagainstthe award datcd 11 112003 passedby Iearned Motor Accident CIaims Tribunal Bathinda for settingaside the same and the appellantbe absolvcd from its Iiability The facts are beingtaken from FAO Nol568 of 2004 Brieflystatcd the case of the claimants is that on 2062002 Rajualongwith AdityaMohan son of Dcvindcr Mohan was goingln Trax Jccp No PB136971 bcingdriven bv Sat Pal Sharma from . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 61 FAO No2568 of 2004 3 1 A Bathinda to Gidderbaha side to deIiveryOxygcnGas cylindersto the customerSe At about 11 am when they reached ncar Markfed Gidderbaha on GI Road Truek No PAT 2424 camc from the opposite side beingdrivcn by Munshi SinghrcspondentNoel at fast e 1 rashlyand ncgligentlyTruck becamc out of controI and was struck 0 againstthe jeep as a result of which occupantsof Trax jeep leCe Sat Pal C and Raju receivcd injuriesaThcy wcrc rcmovcd to Civil Hospital I C5 Gidderbahafrom where thcywere referrcd to Civil HospitalBathinda Raju succumbed to thc injuriesHis post mortem examination was Z conducted in Civil HospitalBathinda Jeep was badly damaged CC Occurrence was witnesscd by Harbans SinghCriminal case with FIR No 44 dated 2152002 was registercd in PoIice Station Giddcrbaha a5 Claimants Babli Ashwani and Sapnaare the widow and 7 mlnor son and daughtcrofdeceased Raju Accordingto Z the claimants Raju was about 25 He was with the C aforcsaid Trax jeepbclongingto Mls D Mohan and company and was gettingRs30001 per month from this company Bcsidcs this he was earningon holidaysand at sparc time Thcy are thc Iegal of the deceascd They allcgedasum of Rse80001 was spentfor treatmcnt ofRajuand Rsl0001or transportation ofRaju Notice of the claim pctitionwas givcnto the respondents Respondent DMohar0 Co was served for 1381002 No one appearedon its bchalf Accordinglyit was proccedcdagainstCX parte . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 1 62 Ol FAO N01568 of 2004 4 0 C 4k Nlunshi Singhrcspondent fiIed replyto the claim petition statingthat Truck Noe PAT 2424 was not involvcd in the accident on 2052002 Jecp Noe PB03E6971 mighthave becn involved in thc accidcnt with some othcr vehicle Claim petitionhas been flled in 1 C connivance with Sat Pal Sharma and Mls D Mohan 82Co Driver of the 0 jeepwas not holdingvalid and effcctivc drivingliccncc Sat Pal Sharma C0 and Mls D Mohan Co were not havingvalid registration certiOcate I C5 route permitand fitness certificate at thejcep He denied his Iiabilityto I r pay the Accordingto him thc amount of Z claimed is without any basi He admitted tlmt hc is owner of the truck Other averments in thc claim petitionhave been dcnied by him er I Respondent Sat Pal filed replyof thc claim applicationHe 08 admittcd thc time pIaccand datc of thc accident and the fact that 1P criminal case with FlR No 44 dated 2152002 under Sections 7 Z 279133814271304A of the Indian Penal Codc has becn registered in tl Police Station Gidderbaha He further admitted that Raju had taken Iift In Trax JeepNo PB136971 beingdrivcn by him from Giddcrbaha to Malout He admittcd that truck No PAl2424 owned by respondent Noal and JeepNoe PBJ30E6971 owned by Mlse D Mohan Si Coe were involved in thc accident Accordingto him jcep was insured with National lnsurance Co and the amount claimed is highlycxaggeratcd However the answeringrcspondentadmittcd that accident ofTrax Jeep and truck No PAT2424 had taken placc RespondentInsurance Co fllcd rcply of the claim petition statingthat the amount claimed is highlyarbitrary and CXCCSSIVC . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 63 1 FAO Nol568 of 2004 5 5 5 Driver of the truck was not havingvalid drivingIiccnce Storyof the accident is fabricatede Jeepwasnot at fauit and thc offendingvehiclc lS truck No PAT 2424 It denied its Iiabilityto pay thc compensation Othcr averments in the claim applicationhavc bccn refuted m r On the basis of the pleadings of thc partics followingissues 0 werc framedl 0 1Whether claimant rcceivcd thc injuriesin thc accident I which took placeout of thc use of motor vehicle ie Truck 0 N0PAT24242 OPA I 2 To what amount of the cIaimant is cntitled Z to 2 ifso from whom 20PA 3 Whether respondcntNol was not posscssing a valid and r cffcctivc drivingIiccncc on the dayof accidcnt2OPR 4 Relicf 08 OriginalIy claim petitionwas filed under Sections 166 and 140 ofthc Motor Vchicles Act Thereafter the claimants got it amended 7 to one under Section 1631 of Motor Vehiclcs Act CL On the basis of the applicationof the claimants issuc Noel was amendcd vide order datcd 10112003 Now issuc Nol rcads as underl Whcther the claimant rcceived the injurics in the accident which took placeout of the usc of motor vehicles leCe Truck NoPAl2424 and Trax JcepNo PB41346971 7 OPA To prove Iheir casc claimants examined AW1 HC Amar SinghAW2 Dr SanjayGarg AW3 Dincsh Gupta and claimant as AW4 Documents ofthe claimants are Exhibits A andA8 Aainst the cvidcnce of the claimants rcspondenlMunshi . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 64 e FAO No2568 of 2004 6 1 Singhappeared as RW1 Thc respondent cxamincd RW2 Buta singh Additional Ahlmad of the Court of Sub Divisional Judicial Magistrate Gidderbaha Exhibit ll is copy of the Insurancc policy Howevcr the respondent Ied no other evidence m 1r Thc partieshavc Icd thcir respectiveevidence on the 0 aforesaid issucsa 0 The Tribunal after appraisalof thc cvidence and after I 0 hearingIearned counsel for thc parties awarded Rs241341 as I to the claimant againstthc respondents alongwith Z interest at the rate of 9 per annum from thc date of Olingthc petition tiII its realization which resulted Ill filingof FAO Noe2568of 2004 I The Tribunal fu rther awarded awarded Rsl590081 as 08 to thc claimant againstthe respondcnts alongwith C interest at the rate of 9Io per annum from thc date of Olingthe petition W2 Z tiII its realization which resulted I tl fllingof FAO No740 of 2004 C Thc Tribunal further awardcd Rse4340001 as compensationto the claimant againstthe respondcntsalongwith interest at the rate of 9 pcr annum from the datc of filingthe petition till its rcaIization which rcsulted Ill fllingof FAO Nol569 of 2004 Feelingdissatisfied with thc aforcsaid award appellant National Insurance CompanyLtd has filed the instant appeals 1 havc heard the learncd counsel for the partiesand have gonethoroughthe records of the case Learned counscl for the Insurance Companyhas submitted that Sat Pal claimant has mcntioncd his income as RsA5001 pcr month T . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 65 1 l FAO Nol568 of 2004 7 in the claim petition Sat Pal whilc appcaringas AW4 has aiso stated that his income was RsA5001oer month as d river but has statcd that his annual inctmc be trcatcd as RsAO00013er year Arit Mohan claimant has pleadedthat hc was drawing salaryof Rs80001 per month Arit Mohan whilc appearing as his 0 own witness has also stated thal hc has income of Rs80001 per month C as SaIes Managcr lt IS con tcndcd that the claim petitionhas bcen I 0 acceptedunder Section 16361 ofthe Act Thc person whose income was I more than RsAO0001oer month cannot maintain a pctitionundcr Section163A ofthe Act r To support this contention Iearned counsel lor the I Insurance Companyhas relied upon authorio7Gurmeet Singh VS 08 Chandiarh TrunsportUndertakin and others 2008 ACJ 2303 3uniab and Harvanu Hih Courtl Orientallnsurance Companv Ltd verSUS em Z Bimla Devi Rani and others 2008 ACJ pagc limachal Pradesh Hih Courtl Ram Sarup VSe Lakhpat Sinh and others 2009 PLR National Insurance Companv IICYSUS Annie Varkev and others 2007ACJ 1827 Puniab and HarvunuHih Court Huseena Sulthana and others vs National Thermtil Power CoroorutionLtll and another 2007 ACJ 1832 Olndhra Prudesh Hih CourO and Chandru Sin2h and another vs Gavatriand another 2007ACJ 2355 ln rcply to thc above noted submissions learncd counsel for the claimants has submittcd that the Division Bcnch of Punjaband HaryanaHighCourt in authorityOriental Insuronce Co Ltd llSeSmt Saroi and others 07 Oll RCRUl M2 has held that wherc the . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 1 66 1 1 FAO N01568 of 2004 8 l 1 incomcof thc deceascd was set up for morc than RsAO0001oer annum but if his income is found to bc below RsAO0001 the claim petition under Section 163A of thc Act is maintainable ln the followingauthorities thc various HighCourt have held that the claimant can rcstrict the income to Rs000011er annum in claim pctitionunlcr Scction 1631 of Motor Vehicles Act 0 0 I t5 11New Indiu Assurance CompanvLtd vs Abdul Bhasheer I and others 2010ACJ 40Kurnatakal e Z 2I1VoreshKumnr vs Vikas Ratlti und others 2009111AICJ a paoe6Puninb and Hurvunal C BRukmuni Devi vs New India Assurance CompanvLimited I 08 and another 2009ACJ 2202 09elliiHih Courtl 00 4 In authorityRavinderand another vse Subhash Chand sv Z and ors 200621RCR Civill p 525 uniab and Harvana this ll Court allowed the amendmcnt to convcrt thc petitionundcr Section 166 to 163A of the Act by rcstrictingthc incomc of RsAO0001 per annume 1 havc givcnmy thoughtful consideration to the submissions madeby both the Iearncd counsel for tlIc particsand havcgone through the records of the casee So far as thc FAO NoJ40 of 2004 is conccrned the tncome of deceased has bccn plcadcd lIS Rs30001 pcr month ieee Rs60001 pcr year So thc above said controvcrsy is not there in that FAONoe740 of 2004 . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 67 4 FAO No568 of 2004 9 L So far as thc remainingtlvo VAOs are concerned the claimantshavc rcstrictcd their income t0 thc cxtcnt of RsAO0001 per yCare All thc above mentioncd authoritics rclicd upon by thc Iearned counsel for thc appcllantshavc bcen handcd down by SinglcBench of 1 r this Court and other lIighCourts ln authoritics rclied upon by the 0 Icarncd counsel for the respondentsit has bccn held by this Court and 0 SinglcBcnch of various oher High Courts that claim pctkIn under I C5 Section163A of the Act S maintainablc if thc income is found to be I r Iessthan RsAO0001epcr anlum or the claimant rcstricted his income to Z thc extent of RsAO0001 per annum The Division Bench ofPunjaband r HaryanaHigh Court whidh would prcvailingupon all other Single 1 Bcnch in authoritics OrieIl lsuranceo Lt vs Smt 08 Sam1anfl othe case 651 held that where the incomc by the cn claimant is plcadcdmore than RsA00001oer annum but the samc was m3 Z found to be RsAO0001 by thc Tribunal in that casc the claim petition undcr Section 163A of the Act is maintainable So in vicw of the a6ovc discussion l have no hcsitation in holding that a thc thrcc claim itions are maintainablce Learncd counsel for the lnsurance Companyhas further submittcdthat thc Tribunal has not givcn a findingthat driver of the truck in questionwas negligcntSO on that account the lnsurancc Companyis not Iiable I have carcfullyconskcrcd thc said submission but do not find any force in that submissione . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 68 FAO No2568 of 2004 10 aVl Thoughinitially thc claim petitionswcre filed under Section 166 of thc Act but the samc wcrc Iater on amcndcd to be under PeJ4404 614 Scction 163A ofthc Act 7 uls 163 A C1 Itw Ac 4 Learned counscl for the Companyhas 1 further submitted thal issue undcr Section 163A of the Act was 0 framed on 101120030 No further opportunity was given to thc C appellantto lead cvidence and thc appellanthas bccn prejudiced on I C5 that account I have carcfullyconsidcrcd thc said submission but do not Z find any force in t submisse r In case the appellantwas interested to Icad any evidcnce I aftcr framinglSSUC undcr Sections 1631 of thc Act in that case they a5 would have rcquestedto thc Tribunal but no such requcstwas madee So Ill thcsc circumstanccs the abovc said contcntion cannot be 7 Z accepted Learned counsel for thc Companyhas submitted that amount of compensationgrantedin respcctof death of Raju IS OIl higherside Thc dcpcndcncyshould havc bcen takcn on lower sidee On thc other hand crosslbjcctions havc bcen filcd for cnhanccment of compcnsationamount by thc respondcntsclaimants 1 havc carcfuv considcrcd the said submission but do not find any force in thc contentions raised b3 both the Icarned counsel for the partics The claim petitionhas been decided undcr Section 163A of the Act and thc amount has to bc oranted I tl accordance with the . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 69 FAO Nol568of 2004 11 Second Schcdule of Section 161 of thc Act lhc amount has bcen awarded strictly accordingto that Schedule So no ground for interference in the impugncdaward passcdby thc Tribunalis made oute 1 Learncd counsel for the Insurancc Companyhas furthcr Lr submitted that the total amount awarded in respcctof cxpcnses on 0 0 medicincs can be up to Rs1 58001 Thc Tribunal should not have I C5 grantcdamount more than Rs50001 and as such the award is Iiable I to be reduced to that cxtcnt Z I have carcfuIlygonc throughthe bare provisionsof the r Acte C lt is clcar from Clause 4 iil of thc Sccond Schcduled of 08 Section 1631 of thc Act expenscs on medicinc should be actual f11 cxpcnscsincurredsupportcdby the billslvouchers butCuMcxtcnded as em L Z one timc paymentto thc extent of Rs150001 So thc intention of the Legislationis that thc amount of payment should not be more than Rs150001 at onc occaSIOOe Thcre is nothingon thc flle that more than Rsel50001has bcen claimcd at onc occaslone So tn VICW of the above discussion all thc thrcc appcals prcfcrrcdby thc Insurance Companyas wcll as crosseobjecons filed by the claimants are without any substancc and the same stand dismissed ln vicw of the peculiar circumstanccs of thC CaSC the partiesarc left to bcar thcir own cos . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 70 FAO No2568 of 2004 12 11 A copy of this judgmcntbe sent to the trial Court for strict 1 JUDGE Aprillft 2010 Sv 1 0 C3 I C I Z I 1 a5 C 7 Z fl ae 2J3 16 1 l . uma 2012.08.28 15: 02 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document