FAO No.84 of 1998 & -1- X-Objection No.22-CII of 1998 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.84 of 1998 & X-Objection No.22-CII of 1998 DATE OF DECISION: February 23, 2011 RATI RAM AND ANOTHER ...APPELLANTS VERSUS DHAJBIR @ DHARAMBIR AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? No 3. Whether the judgement should be reported in the digest? No ---- PRESENT: MR. R.A. SHOERAN, ADVOCATE FOR THE APPELLANTS. MR. SANJAY VASHISTH, ADVOCATE FOR RESPONDENTS NO.1 & 2–X-OBJECTORS. NONE FOR RESPONDENT NO.3. MR. MANI RAM VERMA, ADVOCATE AND MS. SHIWANI VERMA, ADVOCATE FOR RESPONDENT NO.4. MR. SANJIV PABBI, ADVOCATE FOR RESPONDENT NO.5. K.KANNAN, J.(ORAL) 1. The appeal is for enhancement of claim of compensation for the death of a conductor in a jeep that was used for commercial purposes. The accident was said to have taken place when the conductor sitting at the back seat fell off the jeep in an alleged collision with a truck coming from the opposite direction. The Tribunal did not believe this evidence and found that he had been standing at footboard in the jeep holding to a rod above his FAO No.84 of 1998 & -2- X-Objection No.22-CII of 1998 head and fell down and suffered fatal injuries. It accepted the evidence of PW2 in portion to say that the truck had also been involved. In the manner of apportionment, the Tribunal found that the driver of the jeep in which the deceased was travelling, the driver of the truck, as well as the deceased himself as equally responsible for the accident and after determining the compensation of `1,20,000/- made a partial abatement of `40,000/- and apportioned the liability on the owner and driver of the truck at `40,000/- and the insurer, driver and owner of the jeep at `40,000/-. 2. Learned counsel states that the Tribunal was in error in determining the compensation in apportioning the negligence on his part. There is x-objection at the instance of the owner of the truck to contend that in a case of alleged head-on collision, a report secured through the mechanical expert was that there was not even a scratch on the jeep. A photograph taken at the relevant time was also produced before the Tribunal. I cannot believe that there was any collision of the jeep with the truck and if the deceased had died, he died only by the fact that he was standing on the footboard and fell down when the driver of the jeep had applied brake. The appropriate remedy for the claimants ought to have been to lodge the claim against the owner and the insurer for making the insurer liable without suffering any abatement of the claim for, the deceased was a workman entitled to be provided under the provisions of the Workmen Compensation Act and to that extent the policy of insurance shall also cover the risk for a person who was engaged in a jeep which was running for commercial purposes and insured as such. 3. I will absolve the owner of the truck of any liability and hold FAO No.84 of 1998 & -3- X-Objection No.22-CII of 1998 that the accident had taken place only by the deceased standing on the footboard of the jeep and falling down in the manner contended by the driver or the truck. In such an eventuality, the claimants may not suffer any abatement of their claim if a compensation is determined by the formula prescribed under the Workmen Compensation Act. If his income was `1500/-, as taken by the Tribunal, the compensation payable would have been `1500x50%x224 the last number representing the factor prescribed under the Act. The amount of compensation that will become payable shall be `1,68,000/-. The same shall be paid by the insurer of the jeep, namely, the Oriental Insurance Company with interest @ 12% from the date of the award of the Tribunal till date. The modification done by this Court is in exercise of the power which this Court has as appellate Court under Section 30 of the Workmen Compensation Act. 4. If any amount has been paid by the truck owner or the jeep owner, the same shall be recovered from the insurance company in view of the liability cast on the insurer through this award. 5. The appeal as well as the x-objections are allowed to the above extent. February 23, 2011 (K.KANNAN) Gulati JUDGE