1 FAO No.790 OF 1990 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1 FAO No.790 OF 1990 Date of Decision: August 07, 2006 1.Mohinder Kaur wife of Kuljit Singh 2.Charanpal Singh son of Kuljit Singh 3.Rupinder Singh son of Kuljit Singh (2 and 3 minors through Smt.Mohinder Kaur their mother and natural guardian) 4.Gurdial Kaur wife of Waryam Singh All residents of village Toosa, Tehsil and District Ludhiana. .....Appellants VERSUS 1.The Punjab State through its Secretary, Transport Department, Punjab, Chandigarh; 2.Mohinder Singh driver No.203, of the bus PBL-307 son of Shri Maghar Singh resident of village Sarabha Tehsil and District Ludhiana; 3.The General Manager, Punjab Roadways, Ludhiana Depot. .....Respondents. and 2 FAO No.789 of 1990 The Mukatsar New Model Transport Co-operative Society Limited, Mukatsar through its President Shri Ranjit Singh. ....Appellant Versus 1.The Punjab State through its Secretary, Transport Department,Punjab, Chandigarh. 2.Mohinder Singh driver No.203, of the bus PBL 307 of Punjab Roadways, Ludhiana 3.The General Manager, Punjab Roadways, Ludhiana Depot. ....Respondents 2 FAO No.790 OF 1990 CORAM:- HON'BLE MR.JUSTICE R S MADAN PRESENT: Mr.Neeraj Khanna,Advocate for the appellants. Mr.JS Dhillon, Deputy Advocate General, Punjab for the respondents. JUDGMENT These two FAOs No.789 and 790 of 1990 have arisen out of the two judgments passed by the Motor Accident Claims Tribunal, Ludhiana in a Motor Accident Claims Tribunal case No.55 of 1988 and 20 of 1988 vide which both the claim petitions were dismissed although having common facts. The facts are being taken from FAO No.790 of 1990 ( Claim Petition No.55 of 1988 titled as Mohinder Kumar and others Vs. The Punjab State through the Secretary Transport Department, Punjab, Chandigarh and others.) On 25.1.1988 one Kuljit Singh son of Waryam Singh resident of village Toosa, District Ludhiana started from his village at about 7.15 A.M. by driving bus No.PUU-9009 owned by the Muktsar New Model Transport Cooperative Society Limited in Muktsar for getting the bus repaired from Ludhiana and in that bus Dharampal son of Khushi Ram, Jagpal Singh son of Ranjit Singh residents of village Toosa, District Ludhiana and Bukan Singh son of Gujjar Singh resident of village Goindwal, were also travelling. When the bus was going on Raikot- Mullanpur road leading to Ludhiana. At about 8 A.M. when the bus was about 1-1/2 kilometer short of Mullanpur and had just left the warehouse- godowns and the Dharamkanta (weighing bridge) behind it, in the 3 FAO No.790 OF 1990 meantime, bus No.PBL-307 belonging to the Punjab Roadways, Ludhiana Depot. driven by Mohinder Singh respondent No.1 came from the opposite direction. The said bus was being driven in a rash and negligent manner at a very high speed. The said bus came on the wrong side of the road and hit against the bus driven by Kuljit Singh. On seeing the bus being driven rashly and negligently, Kuljit Singh took his own bus to the kacha-berm of the road. Mohinder Singh-respondent No.1 hit his bus against the right front portion of bus No.PUU-9009. Due to the impact, Kuljit Singh succumbed to the injuries at the spot and the conductor of the bus, who was sitting at the bonnet of the engine at the time of accident also suffered injuries. It is further the case of the petitioner that accident had taken place on account of negligent and careless driving of respondent No.1 driver of bus No.PBL-307. This accident was witnessed by Dharam Pal son of Khushi Ram, Jaspal Singh son of Ranjit Singh and Bukan Singh son of Gujjar Singh, who were travelling in bus No.PUU 9009. A criminal case was also registered under Section 304A of the Indian Penal Code at Police Station, Dakha, District Ludhiana on 25-1-1998 relating to this accident against the driver (Mohinder Singh). In this claim petition, Mohinder Kaur widow of the deceased, Charanpal Singh and Rupinder Singh minor sons and Gurdial Kaur claimant, mother of Kuljit Singh deceased claimed compensation of Rs.5,50,000/- on account of the death of Kuljit Singh, driver of bus No.PUU 9009, in the accident. It was further averred that at the time of death Kuljit Singh was aged about 41 years. He was employed as supervisor-cum-driver in the Muktsar New Model Transport Cooperative Society Limited. He was drawing a salary of Rs.1500/- per month. 4 FAO No.790 OF 1990 In FAO No.789 of 1990 ( The Muktsar New Model Transport Cooperative Society Limited, Muktsar Vs. Mohidner Singh and others), the claimant sought Rs.1,05466.33/- as compensation on account of damage suffered by bus No.PUU 9009 in the accident, caused by bus No.PBL-307, owned by respondents No.2 and 3 and driven rashly and negligently by Mohinder Singh, respondent No.1. It is pertinent to mention here that another MACT claim petition No.39 of 1981 (Miss Manpreet Kaur Vs. Mohinder Singh etc.) was also tried along with these two claim petitions but no appeal has been preferred before this Court against the award passed in that claim petition. Upon notice, two separate sets of written statements were filed on behalf of respondent No.1 Mohinder Singh in both the claim petitions No.55 of 1988 and No.20 of 1988. He denied all the allegations and pleaded that Kuljit Singh driver of bus No.PUU 9009 was driving his bus in a rash and negligent manner. The bus was purchased by one Waryam Singh father of Kuljit Singh but it was not in a running condition, infact, on 25-1-1988 Kuljit Singh was taking the bus for getting it repaired from village Toosa to Ludhiana. The bus conductor Jaspal Singh was sitting on the bonnet of the engine near the driver. The driver and the conductor were talking to each other, so Kuljit Singh, driver of the bus had been driving the bus negligently against the Motor Vehicle Rules. With this plea in the written statement, respondent No.1 prayed for the dismissal of the claim petition. Respondents No.2 and 3 filed a separate written statement but they adopted a defence similar to the one adopted by respondent No.1. 5 FAO No.790 OF 1990 From the pleading of the parties, the following issues were framed: “1.Whether the petition is bad for non-joinder and mis-joinder of parties as alleged? OPR-1 2.Whether the accident occurred due to the rash and negligent driving of bus No.PBL-307 by its driver, Mohinder Singh? OPP 3.To what amount of compensation, if any are the claimants entitled and from whom?OPP 4.Relief.” The claim petitions were ordered to be consolidated and tried together but they were disposed of by two different judgments of the same date because issues were framed in these two separate petitions prior to their consolidation. Learned Tribunal while disposing of these two petitions have given finding according to the issues framed in the respective claim petition No.55 of 1988 and claim petition No.20 of 1988(Mohinder Kaur and others Vs. The Punjab State through its Secretary, Transport Department, Chandigarh and others and The Mukatsar New Model Transport Cooperative Society, Limited Vs. The Punjab State through the Secretary Transport Department, Punjab and others) Both the claim petitions were dismissed on the ground that the claimants have not made the Insurance Company and owner of the vehicle No.PUU 9009 as party to the petitions. Therefore, the petitions were hit by Order 1 Rule 9 of the Code of Civil Procedure. Aggrieved by order of dismissal of their claim petitions, 6 FAO No.790 OF 1990 the claimants of both the claim petitions filed two separate appeals and challenged the impugned order of the Tribunal as mentioned above. It is conceded by learned counsel for the appellant that despite of the opportunity given by the Tribunal to the claimants, the claimants did not implead the owner and Insurance Company of bus No.PUU 9009 as party in both the petitions. It was on this account that the finding on issue No.1 was returned against the claimants in both the claim petitions. While disposing of issue No.2 in claim petitions No.55 and 20 of 1988 (Mohinder Kaur and others Vs. The Punjab State through its Secretary, Transport Department, Chandigarh and others and The Mukatsar New Model Transport Cooperative Society, Limited Vs. The Punjab State through the Secretary Transport Department, Punjab and others) , the learned Tribunal drew an inference after going through the evidence brought by the parties on the record that the accident in question was a result of rash and negligent driving of respondent No.1 Mohinder Singh, driver of bus No.PBL-307 as well as Kuljit Singh driver of bus No.PUU 9009 and the negligence attributed to both the drivers was apportioned as 50:50. While disposing of Issue No.3 in claim petition No.20 of 1988 (The Muktsar New Model Transport Co-operative Society Limited Vs. The Punjab State through the Secretary Transport Department, Punjab and others), the Tribunal observed that the claimant has been able to prove on record the damage caused to bus No.PUU 9009 to the tune of Rs.30,800/- and the claimant would be entitled to 50% of the amount i.e. Rs.15,400/- from respondents No.1 to 3 because of the finding given on issue No.2. 7 FAO No.790 OF 1990 While disposing of issue No.3 in claim petition No.55 of 1988 (Mohinder Kaur and others Vs. The Punjab State through its Secretary, Transport Department, Chandigarh and others), the Tribunal after calculating the income of the deceased drawing from all sources observed that the claimants are entitled to compensation of Rs.2,16,000/-, which was to be paid by respondents No.1,2 and 3 as well as owner, the Muktsar New Model Transport Cooperative Society Limited and the Insurance Company of bus No.PUU 9009 in ration of 50:50. In the relief issue, both the claim petitions were dismissed on the finding given by the Tribunal on issue No.1. I have heard the counsel for the parties. On behalf of the appellant, it is contended that the Tribunal has erred in observing that owner and the Insurance Company of bus No.PUU 9009 are necessary party to the petition, despite of the fact that it was alleged in the petition that respondent No.1 driver of bus No.PBL 307, was responsible for causing this accident due to rash and negligent driving of the bus and a criminal case under Section 304A IPC. was registered against him for causing death of Kuljit Singh in accident. Thus, it was not essential for the claimants-appellants to have impleaded the owner and insurance company of the vehicle No.PUU 9009 as a party to both these petitions because bus had suffered damage in the accident as well as caused the death of Kuljit Singh. It was on this count that the appellants have not impleaded the owner and Insurance Company of bus No.PUU 9009 as a party to both the petitions. It is also not disputed that a case under Section 304A of the Indian Penal Code was registered against respondent No.1 driver of the vehicle No.PBL 307. In fact, the Tribunal was under an 8 FAO No.790 OF 1990 obligation to have disposed of the matter as per the rights of the parties actually before it. Thus, keeping in view the findings on other issues, the claimants were entitled to the compensation as claimed by them in their respective claim petitions. According to Order 1 Rule 9 of the Code of Civil Procedure, it is not essential that the suit of the plaintiff has to be dismissed for mis-joinder and non-joinder of parties. In support of his arguments, reference was made to Order 1 Rule 9 of the Code of Civil Procedure, which is reproduced as under: “.Mis-joinder and non-joinder:-No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: (Provided that nothing in this rule shall apply to non-joinder of a necessary party.)” No doubt, a suit of the plaintiff cannot be dismissed for mis-joinder and non-joinder of the parties and if the suit would be disposed of without impleading the owner and the insurance company as a party in both the petitions, the Tribunal should not have straightway dismissed the petition but could dispose of the matter as per the findings given by the Tribunal on other issues and in that event in both the claim petitions awards were to be passed as per the compensation assessed by the Tribunal. Thus the order of dismissal passed in both the claim petitions on the ground of finding on issue No.1 is not sustainable. 9 FAO No.790 OF 1990 On the other hand, it has been stated by the learned counsel for the respondent that non impleading of the party i.e. Owner and insurance company of bus No.PUU 9009, was intentional. There was every chance for the claimant to have secured the compensation with respect to damage caused to bus No.PUU 9009 from its respective insurance company with which bus was insured on the date of accident. It was on this count that the insurance company was intentionally not made party to the claim petition so that it may not disclose the amount of compensation which the claimant might have received with respect to the damage caused to its bus in the accident. Having considered the submissions of the learned counsel for the parties, I am of the view that so far as the impleading of driver and insurance company of vehicle No.PUU 9009 is concerned, the finding on issue No.1 even if returned against the claimant, could not have resulted in dismissal of the claim petition No.55 of 1988. However, it had a great significance so far as claim petition No.20 of 1988 was concerned. The Tribunal had the occasion to enquire whether the claimant of bus NO.PUU 9009 had received any compensation with respect to the damage caused to the bus from Insurance Company and if so how much was the amount claimed by the owner of the vehicle and paid by it. Thus, keeping in view the facts and circumstances, I am of the view that the findings of issue No.1 in both the claim petitions with respect to the non-impleading of owner and insurance company of vehicle No.PUU 9009 was essential and the finding of issue No.1 recorded by the Tribunal in both the claim petitions was justified in facts and circumstances of the case but at the same time award could be passed in claim petition 10 FAO No.790 OF 1990 No.55 of 1988 and not in claim petition No.20 of 1988. The finding of issue No.2 was not challenged before this Court. Therefore, the finding recorded on issue No.2 in both petitions is hereby affirmed. While disposing of issue No.3 of claim petition No.20 of 1988 (The Muktsar New Model Transport Co-operative Society Limited, Muktsar Vs. The Punjab State through its Secretary, Transport Department, Chandigarh and others), the Tribunal has taken into consideration the evidence brought on the record in the form of statements of PW-1, Surinderbir Singh, Partner of Punjab Coach Builders, Hardial Road, Jalandhar Cantt., PW-2 Natha Singh, who had effected the repair for an amount of Rs.300/- and Rs.200/- respectively, vide Exs.P-3 and P-4 and PW-4, Manohar Singh, Photographer, who proved the photographs Ex.P-5 to Ex.P-7 of the scene of accident. According to PW-1 Surinderbir Singh, the Punjab Coach Builders has effected the repair of the damaged bus bearing No.PUU-9009 belonging to Muktsar New Model Transport Cooperative Society Limited, Muktsar and charged Rs. 30,300/- including Sales-tax from the firm vide receipt No.1. He further stated that the aforesaid amount was received in instalments. He also proved the copy of the ledger Exhibit P-2. Thus, it is proved on the record through the testimony of PW-1 and PW-2 that repair to the tune of Rs.30,800/- was effected vide bills Ex.Pl to P-4, and the amount was including the sales-tax. In the claim petition, the Society has sought a compensation of Rs.1,05,466- 33 but in the prayer clause it had claimed compensation with respect to the damage caused to the bus to the tune of Rs.45466-33 paise and a sum ofRs.60,000/- has been claimed for not plying the vehicle because the same 11 FAO No.790 OF 1990 remained stranded at the workshop for repair. A perusal of the file shows that the claim petition was filed by one Ranjit Singh, as the President of the Muktsar New Model Transport Cooperative Society Limited, Muktsar, but he did not appear in the witness box to substantiate the fact that the society had got the bus repaired from Punjab Coach Builders, and spent a sum of Rs.30,800/-. Thus in the absence of statement of the claimant i.e. the President of the Society, through whom the claim petition has been filed failed to enter in the witness box to substantiate the damage caused to the bus No.PUU 9009. Hence, an adverse inference is drawn against the claimants. There is nothing on the record to suggest that any repair was effected except the statement of PW-1 Surinderbir Singh that repair to the tune of Rs.30,300/- was actually effected and he recovered the payment in instalments. It is a case where neither the President of the Society nor Secretary or its cashier was examined to prove the payment of repairs having been made in instalments to PW1. So far as the testimony of PW1 Surinderbir Singh with respect to having repaired the bus No.PUU 9009 to the tune of Rs.30,300/- is concerned, the same is not corroborated. Thus, the petitioner has miserably failed to prove on the record that the Society had spent a sum of Rs.30,800/- on the repair of bus No. PUU-9009. It is pertinent to mention here that the claimant when filed the claim petition attached the bill of Sarna Auto Stores to the tune of Rs.8341-65 paise. A bill to the tune of Rs.325/- of Barnala Auto Electric Works, Raikot (Ludhiana), besides the bills for an amount of Rs.777/- issued by Narinder Auto Electricals and a bill for an amount of Rs.2208-90 paise of M/S Longowal Motor Store, Barnala. If these bills are taken into account an inference could be drawn that the claimant has not 12 FAO No.790 OF 1990 come to the court with clean hands. The bills which were attached with the claim petition were neither proved nor got exhibited for the reasons best known to the claimant. Natha Singh appearing as PW-2 stated that the entire amount was received on the next date of the issue of the bill is also not proved by the representative of Society. Thus it is apparent that the claimant has procured the false bills regarding the repair of bus No. PUU- 9009 just to obtain compensation. In case, the Tribunal had taken into consideration the evidence produced by the claimants with care and caution with regard to the bills already placed on the record, it would not have returned the finding on issue No.3 in favour of the claimants. Hence, the finding on issue No.3 recorded by the Tribunal is set aside and it is held that the claimant society is not entitled to claim any compensation with respect to the damage caused to vehicle No. PUU-9009. The claimant has further failed to prove on the record that bus bearing No. PUU-9009 belongs to the Society, as no registration certificate of the bus has been placed on the record. Now coming to the finding of issue No.3 with respect to claim petition No.55 of 1988(Mohinder Kaur and others Vs. The Punjab State through its Secretary Transport Department, Chandigarh and others), the Tribunal has taken into consideration the compensation of Rs.2,16,000/-, which has been correctly calculated and held the dependency of the claimant as Rs.1000/- per month and after applying a multiplier of 18, it has assessed the compensation 1000x12x18 which works out to be 2,16,000/-. The Tribunal has held that the 50% of amount of compensation could be recovered from the respondents No.1 to 3 Mohinder Singh and Others and the balance 50% could be recovered from owner of the Muktsar New Model 13 FAO No.790 OF 1990 Transport Cooperative Society Limited as well as insurance company of bus No.PUU 9009. The finding of issue No.3 of the Tribunal in claim petition No.55 of 1988 is hereby affirmed. In the facts and circumstances of the claim petition No.20 of 1988 titled as The Muktsar New Model Transport Co-operative Society Limited, Muktsar Vs. The Punjab State through its Secretary, Transport Department, Chandigarh and others from which FAO No.789 of 1998 has arisen is hereby dismissed for the reasons mentioned above leaving the parties to bear their own costs. Now coming to FAO No.790 of 1990 (claim petition No.55 of 1988 titled as Mohinder Kaur and others Vs. The Punjab State through the Secretary Transport Department, Punjab, Chandigarh and others), the finding of the Tribunal that the claimants are entitled to claim half of the compensation of (Rs.2,16,000/-) i.e. Rs.1,08,000/- from respondents No.1 to 3 is hereby affirmed and the order of dismissal of the claim petition is set aside and this appeal is accepted. It is ordered that the claimants would be entitled to a sum of Rs.1,08,000/- from respondents No.1 to 3 jointly and severally with costs, who shall pay the same within three months from the date of passing of this order, failing which the claimants would be entitled interest @ 6% per annum from the date of filing of petition till the payment. The claimants-appellants, who were minor at the time of filing of the petition have become adult during the pendency of the 14 FAO No.790 OF 1990 appeal, they shall however share the compensation with other appellants in the following manner: 1.Mohinder Kaur Rs.27,000/-, 2.Charanpal Rs.27,000/-, 3.Rupinder Singh Rs.27,000/- and 4.Gurdial Kaur Rs.27,000/-. ( R S MADAN) August 07, 2006 JUDGE jt