Pritpal Kaur & Anr. v. Pepsu Roadways Transport Corporation, Nabha Road, Patiala

Mr. Arun Nehra, Advocate for respondent Nos.1 and 2. None for respondent Nos.3 and 4. Mr. Paul S. Saini, Advocate for respondent Nos.5. None for respondent Nos.6 to 8. CORAM:HON'BLE MR. JUSTICE K. KANNAN

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 for enhancement of compensation at the instance of the claimants where the award had been made only for the injuries at Rs.40,000/- and made the respondent Nos.1 and 2 jointly and severally liable for 50% and another 50% was directed to be paid by respondent Nos.3 to 5. They were respectively the owner of the bus and the truck. The deceased was a passenger in the bus and the Tribunal found that both the vehicles had been responsible for the accident and apportioned the liability as above.

2. While adverting to the issue whether the ultimate death was FAO No.1180 of 2003 -2- the result of the accident injuries only, the Tribunal held that no proof was adduced that the death was only on account of the injuries. In this case, the accident had taken place on 07.03.1991 and the person had died within two weeks namely on 20.03.1999. The doctor, who had examined him gave evidence as PW3 with reference to the records that at the time when he was brought to the hospital with injuries immediately after the accident, he was complaining of inability to move his left leg and there was tenderness present over the hip region. X-ray had been taken and it revealed that there was a fracture of the hip joint with femur upper 1/3rd. He had also been complaining of chest pain and tenderness over the left side of the chest and treatment had been given to the patient clinically for the pain that the patient was complaining of. The details of treatment suggests that he had been alleviated from pain and injection had been given for prevention of any infection arising out of the accident. Ampicillin injection 500 mg had also been suggested six hourly and injection boberon, intravenous fluids with 5% dextrose was given. Ultimately at the time when the death took place, the possibility of death was stated by the doctor to be due to septicemia, fatembolism or air embolism. He was of the opinion that the possibility of the death as on account of the above said injuries could not be ruled out. This evidence was definitely in the nature of opinion and if there was no intervening illness for the person, I have no doubt in my mind that the proximate cause of the death was only the injuries. There was no further requirement to prove than what was tendered before the Tribunal to show that the death was on account of the injuries suffered in the accident. FAO No.1180 of 2003 -3-

3. At the time when he was taken into the hospital, it appears that his age was given as 64 years but at the time of trial, evidence was given to the effect that he was aged 52 years. The claimants were the widow and son. The son was himself a major. With no definite evidence available with reference to the age, the Tribunal took age to be 60 years, which I will retain. He was a tailor by profession and the evidence was that the deceased used to give about Rs.6,000/- per month and that he was earning not less than Rs.200/300 per day. Learned counsel for respondent Nos.1 and 2 would contend that there was no proof that he was having a tailoring shop and that there is no proof that he was earning Rs.200/300 per day. If a person has not any shop or he does not produce document relating to his income, I will not take that to mean that he was not making any earning at all. I would take his average income at Rs.3000/- and take 1/3rd deduction for his personal expenses and take the contribution to the family at Rs.2,000/- per month. The annual loss of dependence will be taken as Rs.24,000/-. I will adopt a multiplier of 9 to hold that the loss of dependence shall be taken as Rs.2,16,000/-. I will add Rs.14,000/- towards the conventional heads to round off the figure at Rs.2,30,000/-. The amount in excess over what has been awarded by the Tribunal shall bear interest @6% from the date of the petition till the date of payment.

4. As regards the liability, the insurance company had been exonerated which was the insurer for the truck on the ground that the owner insured had transferred the vehicle without informing the insurance company. The legal reasoning was wholly erroneous particularly in view of the specific provision under Section 157(1) of FAO No.1180 of 2003 -4- the Motor Vehicles Act that protects a third party claimant for enforcing a claim against an insurer and to contend that there shall be a deemed transfer, no matter the fact of transfer had not been informed by the insured to the insurance company. Learned counsel appearing for the insurance company would contend that there is no appeal by the owner to challenge the finding and that even in the appeal grounds, the claimant has not sought for any specific relief against the insurer. I will not take this to be sufficient ground to deny the claimants their right of enforcement of the claim against the insurer, for the insurance company is not like any other private litigant. The only business of the insurance company is to pay and if there exists a policy of insurance, the insurance company shall not be heard to pick on technical defences which ill-behoves the status of an insurance company. I will invoke the power akin to what Order 41 Rule 33 CPC provides, and although there is no specific relief by the owners, I will afford the claimants a right of enforcement of the claim against the insurance company with reference to the 50% of the claim. There has already been an award to the tune of Rs.40,000/- with interest and the extent to which any receipts had been made shall go in partial reduction of the entitlement which is secured through this award.

5. The appeal is allowed to the above extent. December 20, 2010 Pankaj* (K. KANNAN) JUDGE