F.A.O.NO.1735 OF 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO.1735 OF 2005 Date of decision:9th August, 2010 United India Insurance Company Limited .......Appellant Versus Mithoo Singh and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Sanjiv Pabbi, Advocate, for the appellant. None for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company challenges the award on the question of liability for the driver of jeep which had been insured with the appellant. The claimants were the father, mother and other sibblings of the deceased who was the driver of the jeep that dashed against the 'Tata Sumo' Vehicle. The evidence had been brought to Court to the effect that even when the driver of the jeep drove at a moderate speed, the Tata Sumo, owned by the second respondent before the Tribunal, dashed against the jeep and that caused the death of the driver. It appears that there were other claims also arising out of the same accident, when the Tribunal had found Tata Sumo to be responsible for the F.A.O.NO.1735 OF 2005 2 accident and cast the liability exclusively on the insurer of the Tata Sumo which was the Oriental Insurance Company. In this appeal the insurance company has been arrayed as the sixth respondent. It is not very clear from the judgment as to how the Tribunal found the driver of the jeep itself as liable for the accident. The Tribunal apportioned the liability between the driver of the jeep and the driver of Tata Sumo as 50:50. The Tribunal awarded 50% of the amount to be paid by each Insurance Company. 2. I find that the award of the Tribunal casting the liability on the insurer of the jeep in which the deceased was driver to be erroneous. It ought to have been found that the driver of the Tata Sumo was wholly responsible for the accident and granted the compensation to be recoverable only against the insurer of the owner of the Tata Sumo. The Tribunal has determined the compensation on due consideration of the income of the deceased to be Rs.2,000/- and provided for modest award of Rs.2,50,000/- for a person who was 27 years of age. The quantum shall not be disturbed and the same shall be recovered only against the Oriental Insurance Company arrayed as a sixth respondent only. 3. Although there is no appeal filed by the claimants relating to the apportionment of liability, I exercise the powers of Appellate Court under Order 41 Rule 33 of Code of Civil Procedure and modify the findings of the Tribunal in favour of the claimant/respondents to hold that the deceased driver of the F.A.O.NO.1735 OF 2005 3 jeep was not responsible for the accident. It is only the owner of the Tata Sumo who was responsible. 4. The appeal is allowed and the award shall be enforced against the Oriental Insurance Company only. [K.KANNAN] JUDGE 9th August, 2010 Shivani Kaushik