IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.869 of 1989(O&M) Date of decision:16.02.2011 National Insurance Company Limited ....Appellant versus Sh. J.D.K. Hans and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ravinder Mohan Suri, Advocate, for the appellant. None for respondents 1 to 6. Mr. A.P.S.Sandhu, Advocate, for Mr. Ashok Aggarwal, Senior Advocate, for respondent No.7. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The appeal is by the Insurance Company questioning the liability fastened on it for a claim resulting from death of a woman dying by falling out of the truck, but getting killed ultimately by yet another truck bearing registration No.DHL-5175 running over her and crushing her to death. 2. The claim was prosecuted by the husband and minor children and the Tribunal had awarded a compensation of Rs.51,000/-. It held the driver and the owner of the truck in which the deceased was travelling as responsible for the accident and awarded the compensation FAO No.869 of 1989(O&M) - 2 - against the insurer of the Matadoor pickup van in which the deceased was travelling. The learned counsel for the Insurance Company would urge that there was no liability to cover the risk of a passenger in a goods carriage and, therefore, in terms of the law laid down by the Hon'ble Supreme Court in New India Insurance Company Limited Versus Asha Rani and others-2001(3) PLR 637, the liability could not have been fastened on the Insurance Company. In this case, the deceased herself was not a tort feasor. She had got ejected from the insured's pickup van and while she was still on the road, the truck bearing registration No.DHL-5175 ran over her and crushed her to death. It was a case, if at all, of composite negligence between two vehicles and the right of enforcement of the claim will, therefore, be possible even against anyone of the tort feasors. If the insurer of the pickup van would not be liable, I would hold that the owner and driver of the truck bearing registration No.DHL-5175 would be liable for the accident as persons, who had been compositely responsible for causing the death of the first claimant's wife. There had been policy of insurance with the 7th respondent-New India Assurance Company Limited and what was claimable against the owner and driver of the truck bearing registration No.DHL-5175 was bound to be indemnified by the New India Assurance Company Limited. 3. While modifying the award passed by the Tribunal, I will provide a right of enforcement of the award against the 7th respondent- New India Assurance Company Limited as an insurer of the vehicle namely of truck bearing registration No.DHL-5175. 4. If any amount has been recovered by the claimants from the FAO No.869 of 1989(O&M) - 3 - appellant/insurer, the appellant/insurer will claim recoveries against the 7th respondent and not against the claimants. 5. For any unrecovered portion of the amount, the claimants shall have a right of recovery against the 7th respondent only. 6. The appeal is disposed of on the above terms. (K.KANNAN) JUDGE 16.02.2011 sanjeev