Punjab-Haryana High Court
Cholamandlam Ms General Insurance ... vs Gurpreet Kaur And Others on 11 March, 2025
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2025:PHHC:034512
108
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-5353-2019 (O&M)
Date of Decision : 11.03.2025
Cholamandlam MS General Insurance Company Ltd ... Appellant(s)
Versus
Gurpreet Kaur & Ors ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Punit Jain, Advocate for the appellant.
Mr. Yogesh Gupta, Advocate for respondents No.1 to 5.
Mr. Vijay Lath, Advocate for respondent No.6.
ALKA SARIN, J. (Oral)
1. The present appeal has been preferred by the appellant-Insurance
Company challenging the impugned award dated 02.03.2019 as well as the
order dated 01.03.2019 passed by the Motor Accident Claims Tribunal,
Chandigarh (hereinafter referred to as 'Tribunal')
2. Brief facts relevant to the present lis are that on 08.02.2018,
Kulwant Singh (since deceased) was driving his car at a slow speed and was
travelling with his father from Phagwara to Ludhiana and when they reached
Jamalpur Bridge, GT Road Phagwara, at about 5.00 pm, their car struck
behind a truck bearing registration No.JK-02-R-7487 which had earlier struck
behind a Canter bearing registration No.PB-12-K4018 which was wrongly
parked on the road by its driver in a negligent manner. As a result of the
accident, Kulwant Singh suffered serious injuries and he was taken to Civil
Hospital, Phagwara, however, he died on his way to the hospital. It was
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averred in the claim petition that the accident took place due to the wrong
parking of canter bearing registration No.PB-12K-4018 by its driver and in
the middle of the road without any precaution or warning signs.
3. The driver-cum-owner of canter bearing registration No.PB-
12K-4018 (respondent No.1 herein) did not appear and was proceeded against
ex parte.
4. The appellant-Insurance Company contested the claim petition
by filing its written statement raising various preliminary objections and
denying the accident having taken place due to the negligence of the canter
bearing registration No.PB-12K-4018. It was further the stand taken that the
accident took place as a result of the negligence of the deceased himself as
well as the negligence of the driver of the truck bearing registration No.JK-
02R-7487. Further objections were raised that respondent No.1 (driver-cum-
owner of canter bearing registration No.PB-12K-4018) was not holding a
valid driving licence and the same was being driven without RC, permit,
fitness certificate etc.
5. On the basis of the pleadings of the parties, the following issues
were framed :
1. Whether Kulwant Singh died on account of injuries
sustained in road accident on 8.2.2018 due to rash and
negligent driving of canter truck bearing registration
No.PB12-K-4018 by respondent No.1 ? OPP
2. Whether the claimants are entitled to
compensation, if so, at what amount and from
whom ? OPP
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3. Whether the respondent No.1 was not holding a
valid and effecting driving licence, registration
certificate, route permit and fitness certificate at the time
of accident ? OPR2
4. Relief.
6. The Tribunal found that the canter bearing registration
No.PB-12K-4217 was parked in the middle of the road and accordingly,
decided issue No.1 in favour of the claimants-respondent Nos.1 to 5 herein
and against the Insurance Company-appellant and respondent No.6 herein and
awarded the following compensation :
Sr. No. Heads Compensation Awarded
1 Monthly income ₹18,000/-
2 Future prospects 40% [₹18,000 + 7,200] = ₹25,200/-
3 Annual income [₹25,200 x 12] = ₹3,02,400/-
4 Deduction 1/3rd [₹3,02,400 - 1,00,800] = ₹2,01,600/-
5 Multiplier of 17 [₹2,01,600/- x 17] = ₹34,27,200/-
6 Funeral expenses ₹15,000/-
7 Loss of estate ₹15,000/-
8 Loss of consortium ₹40,000/-
Total Compensation ₹34,97,200/-
Interest 7.5% per annum
Aggrieved by the same, the present appeal has been preferred by the appellant-
Insurance Company.
7. The only argument raised by the learned counsel for the
appellant-Insurance Company in the present appeal is that it was at best a case
of contributory negligence as the truck bearing registration No.JK-02R-7487
had hit a parked canter bearing registration No.PB-12K-4217 on the
flyover and the car of the deceased had struck the said truck bearing
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registration No.JK-02R-7487. It is further the contention of the learned
counsel that an application was filed for impleading the owner and driver of
the truck bearing registration No.JK-02R-7487 which has also wrongly been
dismissed by the Tribunal. The learned counsel has further contended that the
canter bearing No.PB-12K-4217 was parked on the side of the road
(Highway).
8. Per contra the learned counsel for respondent Nos.1 to 5-
claimants has contended that it is not a case of contributory negligence
inasmuch as no issue was claimed qua contributory negligence by the
appellant-Insurance Company nor any evidence has been led in this regard.
The learned counsel has relied upon the judgment of the Hon'ble Supreme
Court in the case of M. Nithya & Ors. Vs. SBI General Insurance
Company Limited [SLP(Civil) Nos.833-834 of 2023 decided on
03.01.2025] to contend that without there being any specific issue regarding
contributory negligence and without there being any evidence led by the
appellant-Insurance Company, it could not be held to be a case of contributory
negligence.
9. I have heard the learned counsel for the parties.
10. In the present case though the learned counsel for the appellant-
Insurance Company has vehemently argued that it was a clear case of
contributory negligence and that the owner and driver of the truck bearing
registration No.JK-02R-7487 had not been impleaded as a party and that the
application for impleading them as a party has wrongly been dismissed by the
Tribunal, however, the learned counsel for the appellant-Insurance Company
has admitted that there was no issue framed by the Tribunal qua contributory
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negligence. The learned counsel for the appellant-Insurance Company has
also not been able to point out to an iota of evidence led on the record to even
remotely suggest that the canter bearing registration No.PB-12K-4217 was
parked on the side of the road. During the course of arguments, the site plan
which is not a part of the record but was a part of the challan, has been shown
to the Court by the learned counsel for the appellant-Insurance Company.
Even as per the said site plan, the canter bearing registration No.PB-12K-4217
was not parked on the side of the road but was parked next to the divider on
the flyover, which cannot be considered as being properly parked on the side
of the road.
11. Further still, Hon'ble Supreme Court in the case of M. Nithya
(supra) has held as under :
"7. It is pertinent to observe that the Tribunal noted that
the Insurance Company in their Counter contend that
contributary negligence of the part of the deceased has to
be fixed. However, the Tribunal did not frame any specific
issue in that regard for determination. The Tribunal
clearly finds negligence only on part of the driver of the
lorry and therefore, the owner of the lorry and the
Insurance Company which insured the said lorry are
jointly and severally found liable to pay compensation.
Therefore, when the Tribunal did not even frame an issue
on contributary negligence, the High Court ought not to
have considered that argument in order to reduce the
compensation awarded. Even otherwise the Insurance
Company did not lead any evidence on this aspect nor
insisted for framing an issue. Merely making a bald
assertion in their Counter Affidavit cannot derive any
advantage. Hence, we are in agreement with the findings
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of the Tribunal that the accident took place only due to the
negligence of the driver of the lorry and therefore, the
contributary negligence awarded on part of the deceased
by the High Court suffers from an error and cannot be
sustained."
12. A perusal of the testimony of the eye-witness i.e. father of the
deceased who stepped into the witness box as PW1 reveals that in his
examination-in-chief he had clearly stated that the accident took place due to
the wrong and negligent manner in which the canter bearing registration
No.PB-12K-4018 was parked in the middle of the road without any warning
or precaution. In the lengthy cross-examination of the said witness (PW1),
nothing could be elicited to suggest that the canter was parked on the side of
the road and not in the middle. Even as per the site plan referred to by the
learned counsel for the appellant-Insurance Company the stand taken by the
eyewitness stands fortified. In view of the above and in view of the fact that
no relief was claimed against the truck, no fault can be found with the order
dismissing the application for impleadment. No other argument has been
raised.
13. In view of the above, I do not find any merit in the present appeal
which is accordingly dismissed. Pending applications, if any, also stand
disposed off.
11.03.2025 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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