IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5444 of 2004 Date of decision:15.09.2010 Oriental Insurance Company Limited ....Appellant versus Ranjit Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ashwani Talwar, Advocate, and Mr. Rahul Garg, Advocate, for the appellant. Mr. R.C. Gupta, Advocate, for respondent No.9. None for other respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. The appeal is by the insurer challenging liability on the ground that the insured's truck was owned by the deceased and there was no personal accident cover to provide a right of compensation to its own owner. The accident had occurred when the insured's vehicle dashed against the stationary truck which was owned by the second respondent and insured with the third respondent before the Tribunal. The driver of the vehicle in which the deceased was travelling had lodged the FIR stating that there was glare due to light from the vehicle coming from the FAO No.5444 of 2004 - 2 - opposite side and when he was pulling up the vehicle to one side, he dashed against the stationary vehicle which had been parked without sufficient lights. The person that lodged the FIR gave also evidence before the Court. The vehicle which had been hit from behind driven by the first respondent before the Tribunal did not offer for contra evidence although a statement had been filed by the driver and owner that they had themselves parked the vehicle only because of the glare from the opposite side. The Tribunal, on appreciation of facts found both vehicles as responsible for the accident, one by the fact that the driver of the truck, who dashed yet another truck from behind, was definitely culpable and yet another driver, who was said to have parked his vehicle, did not come to Court to give evidence that there had been sufficient light to put yet another driver coming from behind on notice of his vehicle having been parked appropriately. 2. While finding that both the vehicles were responsible for the accident, he did not make any apportionment of liability but granted compensation of Rs.7,80,000/- against the appellant-Insurance Company and the National Insurance Company which was the insurer for the other truck. 3. I have seen from the policy that it is insured only for risk to public by payment of a basic premium and the owner has paid the premium to cover the risk to a paid driver only, besides an insurance to cover own damage to the vehicle. The owner has not taken any personal accident cover and since a contract of insurance is to indemnify the owner, he cannot obtain compensation for death arising out of the FAO No.5444 of 2004 - 3 - negligence of his own driver. Learned counsel for the National Insurance Company which is the insurer for the other truck which had remained stationary would contend that the manner in which the accident took place and the narration would show that when his insured's vehicle had been parked ahead of the other vehicle coming from behind and no negligence could ever be attributed to the driver and that it shall be of no consequence that no evidence was tendered by his driver. It must be noticed that in this case where the liability was found as joint and several, the National Insurance Company has not chosen to prefer an appeal against the finding that held both the vehicles to be equally responsible. However, even without an appeal, I would still consider the issue of the respective portion of negligence and by invoking the powers under Order 41 Rule 33, I would modify the degree of culpability of the respective drivers and cast a higher percentage of liability namely 60% on the driver of the vehicle to which the deceased was the owner and cast the responsibility of the stationary truck at 40%. The negligence 40% is for not giving contra evidence to the evidence tendered by the driver Kaka Singh that the vehicle parked in front had been parked on the middle of the road and that there had been no parking lights. Consequently, the liability of the National Insurance Company shall be to the extent of 40% on the amount determined by the Tribunal as payable. 4. The appellant-insurer cannot be burdened with any liability at all, having regard to the fact that the accident was due to contributory negligence of the driver of the deceased's vehicle and the award shall FAO No.5444 of 2004 - 4 - therefore suffer a partial abatement to the tune of 60% namely the proportion to which his driver's liability is apportioned. 5. The award of the Tribunal shall therefore stand modified to cast 40% liability on the second respondent before the Tribunal and its insurer, who was the third respondent before the Tribunal, who are respectively 7 and 9 respondents in appeal. 6. The appeal is allowed on the above terms. (K.KANNAN) JUDGE 15.09.2010 sanjeev