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2012 DIGILAW 890 (RAJ)

Ganga Ram v. Gopali

2012-04-10

MOHAMMAD RAFIQ

body2012
RAFIQ, J.—These four appeals have been preferred against the common award dated 26.09.2007. 2. Shri S.N. Meena, learned counsel for the appellant has argued that most of the witnesses are not eye witnesses and they have stated that they did not see the accident themselves. Babu Lal, on whose parcha bayan, the first information report was registered, has not named owner and driver of the tractor. The tractor was in the joint ownership of two persons namely Ganga Ram and Tika Ram, which is evident from the fact that a joint insurance policy was issued in their name and reference thereof has been made in the impugned award. The claimants initially joined Tika Ram also as one of the parties to the claim petition, but when he died, they got his name deleted from array of non-claimant-respondents rather than bringing on record his L.Rs. The appellant-Ganga Ram alone therefore cannot be held liable to pay compensation to the claimants. 3. Learned counsel for the appellant has further argued that income of the deceased persons has not been proved. The tractor was insured for the agriculture purpose and therefore the insurance company could not be exonerated of its liability. Learned counsel referred to the statement of AW-1 Lalita, AW-2 Gatto, AW-3 Lotanti and AW-4 Hemant and argued that they have not said anything to substantiate averments in the claim petitions. AW-5 Babu Lal has not disclosed registration number of the tractor. Learned Tribunal has decided issue no.4 and 5 against the insurance company. It has held that driver was having valid driving licence and the tractor was also having registration certificate and permit, yet it has erred in law in exonerating the insurance company. It was argued that even in a case where there is a breach of policy condition, the insurance company must be held liable to make payment of compensation to the claimants first, although with recovery rights from the owner. If that was done, the appellant would be liable to pay only half of the compensation rather than paying the full. The income of the deceased has been accepted without there being any specific proof and on that basis, the compensation has been excessively paid. 4. Shri Mukesh Sharma, learned counsel for Shri K.L. Meena for claimants in CMA No.312/08 and Shri Vinod Tyagi, learned counsel for the respondent-insurance company have supported the impugned judgement. 5. The income of the deceased has been accepted without there being any specific proof and on that basis, the compensation has been excessively paid. 4. Shri Mukesh Sharma, learned counsel for Shri K.L. Meena for claimants in CMA No.312/08 and Shri Vinod Tyagi, learned counsel for the respondent-insurance company have supported the impugned judgement. 5. On hearing learned counsel for the parties, I find that apart from one injured Babu Lal, who sustained grievous injury in the accident, three causalities took place in the accident. The Tribunal has awarded a sum of Rs.21,020 to injured Babu Lal in Claim Case No.157/2005 whereas has awarded a sum of Rs.4,05,000 in Claim Case No.131/05, Rs.3,84,000 in Claim Case No.132/05 and Rs.4,48,000 in Claim Case No.133/05 to the claimants of the deceased. Income of the deceased has been taken as Rs.3,000 per month in each case and the Tribunal has deducted 1/3rd for own expenses of the deceased whereas in these matters, number of claimants were respectively 8, 8 and 6 and therefore deduction towards self expenses as per the law enunciated by the Supreme Court in Sarla Verma & Ors. vs.Delhi Transport Corporation, (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC), should be 1/5th in CMA Nos.131/05 & 132/05 and 1/4th in the CMA no.133/05. Even then, the sum of compensation that has been arrived at by the Tribunal cannot be either excessive or unreasonable. Deceased were held to be agriculturists and therefore accepting their income at Rs.3,000 per month, cannot be said to be excessive. The injured has also been awarded a very moderate amount as compensation. 6. As regards the liability of the appellant, it is contended that he may be held liable to only 50% of the compensation, but no such plea appear to have been raised before the Tribunal. It is however a question of fact that if the registration certificate was in the joint name and the insurance policy was also in joint name, liability for payment of compensation cannot be fastened on the appellant alone. However, at the same time, the claimants cannot be made to suffer for that reason though it is true that claimants did not seek to implead the L.Rs. of Tika Ram as party. 7. However, at the same time, the claimants cannot be made to suffer for that reason though it is true that claimants did not seek to implead the L.Rs. of Tika Ram as party. 7. In such circumstances, the appropriate course would be to grant liberty to the appellant after making payment of compensation to the claimants, to make recovery of 50% of the amount by filing appropriate suit against the L.Rs. of deceased Tika Ram on establishing of factum of joint ownership of tractor, from the assets of co-owners inherited by his legal heirs. With that liberty, all the appeals are disposed of.