High Court of Punjab and Haryana, Chandigarh
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National Insurance Company Ltd. v. Nirmla Devi & Ors - FAO-1779-1993  RD-P&H 4298 (18 July 2006)
FAO No.1779 of 1993
Date of Decision : July 19, 2006
National Insurance Company Ltd. ......Appellant.
Nirmla Devi and others ......Respondents
CORAM:- HON'BLE MR.JUSTICE S. D. ANAND
PRESENT: Mr.Munishwar Puri, Advocate
for the appellant-Insurance Company.
Mr.Jaswant Jain, Advocate for respondents 1 to 4.
1. The National Insurance Company (hereinafter to be referred as "the appellant") has filed the present FAO against award dated 27.7.1993 passed by the Motor Accident Claims Tribunal, Bhiwani whereby the appellant (along with the driver and the registered owner of the offending vehicle) was held jointly and severally liable to pay the amount of compensation (with interest @ 15% per annum with effect from the date of application till the date of recovery thereof).
2. The plea raised by the claimants and upheld at the trial was that they are legal representatives of Sham Lal Mittal (husband of appellant Mst.Nirmala Devi, father of appellants Shekhar Mittal and Sudhir Mittal and son of appellant Mst.Nanhi Devi, who was given up as dead on 14.5.1993 before the Tribunal). The further allegation is that truck No.HRH 5960 (driven by respondent No.6 Rajinder Singh) had caused the impugned accident. That vehicle was owned by respondent No.7 Tulsi Lal, who died during the trial and who is represented by his legal representatives i.e. respondents No.7(i) to 2(v).
3. The Insurer has, in the present appeal, raised a plea for exoneration on an averment that respondent No.6 Rajinder Singh was not holding a valid driving licence on the date of the impugned accident and, by handing over the vehicle to him, the insured i.e. Respondent No.7 Tulsi Lal had violated the terms and conditions of the Insurance policy.
4. As against it, the claimants have filed cross objections pleading for the applicability of a higher multiplier. The further plea in the cross objections is that the deduction of 1/3rd income for the personal up-
keep of the deceased deserves to be diluted in view of the fact that the deceased had a large number of dependents to support. That deduction of 1/5th
ought to have been applied was the plea raised in the context.
5. I have heard learned counsel for the appellant and learned counsel for respondents No.1 to 4 and have perused the record.
6. In support of the advocated plea, learned counsel for the appellant-Insurer argued that the record based testimony of RW2 Bihari Lal, an official of the office of Licensing Authority, Kulu (H.P.), had not been appropriately appreciated by the learned Tribunal.
7. There is no merit in the plea. RW2 Bihari Lal made a record based statement to the effect that Exhibits R2 to R4 are not mentioned in the record brought by him. He proceeded to further state that the record does not indicate that any driving licence had been issued on 18.12.1989 in the name of Rajinder Singh son of Sahi Ram. He further made a categorical statement that only four licences are borne by the record to have been issued on 18.12.1989 and that none of those licences is in the name of Rajinder Singh aforesaid. That witness had been produced by the Insurance Company. He was not subjected to any cross-examination on behalf of the claimants. In so far as the registered owner is concerned, only two questions were put to the witness in cross-examination. In response to those questions, he stated that a part of Exhibit R4 is in a different handwriting and that the seal on Exhibit R4 is not of the office in which he is employed (A true copy of the testimony on oath of Bihari Lal was placed on file by the learned counsel for the appellant).
8. The learned Tribunal discarded the testimony of RW2 Bihari Lal by noticing a plea raised on behalf of the claimants that the official aforesaid "has been summoned suddenly just to wrongly defeat the claim of the claimants." The Tribunal further noticed in the context that the driver had not been produced by the Insurance Company. Besides that, it proceeded to observe that "when the Insurance Company wants to falsify a document to be forged, they should have compelled the driver of the vehicle to come to the witness-box. The driver of the truck could have been summoned in the court if an application had been filed by the Insurance Company." In that very context, the Tribunal observed that "the drivers of the trucks normally go towards Kulu and other hilly areas to bring various articles and there is nothing unusual to get the licence from those areas where comparatively they can get the licence with less difficulty. There is no sufficient evidence led by the respondents which could conclude that the licence on record is a forged one or was not issued by the Licensing Authority, Kulu."
9. The line of reasoning adopted by the learned Tribunal is inappropriate and uncalled for, besides being unsustainable on the touch- stone of appreciation of evidence. The present is a pure and simple case in which the plea raised was that the indicated licence had been issued in the name of respondent No.6 Rajinder Singh on 18.12.1989 by the Motor Licensing Authority, Kulu. RW2 Bihari Lal falsified that averment by making a record - based statement to the contrary. There is nothing else which the appellant Insurer was required to do in order to prove the falsity of the plea put forward on behalf of respondents No.6 and 7 i.e. Rajinder Singh and Tulsi Lal respectively.
10. I have, thus, no reservations in reversing the finding recorded by the learned Tribunal holding the appellant Insurer to be jointly and severally liable for paying the amount of compensation. In the circumstances of the case, the appellant Insurer is exonerated from liability.
11. In so far as the cross-objections are concerned, those are without force in entirety. The deduction of 1/3rd income would appear to be
in order in view of the proven position that the deceased was employed as a Senior Lecturer in the Presidency College, Manipur. The claimants have been averred to be the residents of Hissar. By the very nature of things, the deceased must have been spending quite a bit on visiting his family and also on his personal up-keep. In so far as the controversy about the applicability of multiplier is concerned, there also it may be noticed that the deceased was recorded by the Tribunal to have been born on 20.10.1954. The impugned accident had taken place on 3.1.1992. The deceased was aged 38 years at the time of death. The multiplier of 16 had, thus, been correctly pplied by the Tribunal. All the pleas raised in the cross objections shal stand repelled accordingly.
12. It may be noticed that, as per the record of the Tribunal, Mst.Nanhi Devi was given up as dead on 14.5.1993. Her legal representatives were not brought on record. Her husband continued to be on record in his own right as a legal representative of his deceased son and not as husband/LR of deceased Nanhi Devi who died during the trial. Her share of the compensation would not, thus, go to any legal representative.
13. In the light of the foregoing discussion, the appeal i.e. FAO No.1779 of 1993 filed by the Insurer shall stand allowed. The Insurer shall stand exonerated from the liability for the reasons recorded in para 9 of this judgment. The cross objections shall stand dismissed.
( S. D. ANAND )
July 19, 2006 JUDGE
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