IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 82 of 2011 Date of decision: 15.9.2011 ICICI Lombard General Insurance Company Ltd. ….Petitioner Versus Chaman Lal & another …..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr. Jagdish Thakur, Advocate For the respondents: Mr. Varun Rana, Advocate for respondent No. 1. _____________________________________________________ Deepak Gupta, J(oral) 1. Normally, this Court is loathe to exercise the supervisory jurisdiction vested in it under Article 227 of the Constitution of India to correct the orders passed by the Motor Accident Claims Tribunal. However, when an award is highly excessive or the Tribunal throws to the winds all norms relating to assessment of damages and assesses damages without giving any reasons, then this Court has no option but to exercise its supervisory jurisdiction. In fact, in such a case, it is the duty of this Court to interfere and set aside 2 such orders which lower the esteem of the judicial system. 2. Another disturbing aspect, which I have noticed in a number of cases, is that when the applications are filed by the Insurance Company for leave to defend the cases on all grounds under Section 170 of the Motor Vehicles Act the same are opposed by the owner and the driver on the ground that they are contesting the case. The Tribunals then reject the applications and may be rightly so. However, when the witnesses are examined in Court or submit their affidavits by way of examination-in- chief they are not virtually subjected to any cross- examination by the owner or the driver. The counsel for the Insurance Company obviously cannot cross-examine the witnesses on the issues of negligence and quantum since the application under Section 170 of the Motor Vehicles Act has been dismissed. The Tribunals sit like a mute spectator and do not even try to elicit the truth and like in the present case the statement of one witness regarding the income is accepted as the gospel truth. 3. The Tribunals must realize that under the provisions of the Motor Vehicles Act especially Section 166(4) the claims Tribunal can even treat 3 the report of an accident forwarded to it under sub section (6) of Section 159 as an application for compensation under the Act. The Tribunals are expected to award just compensation. The persons manning the Tribunals must realize that the Statue imposes upon them the duty to adjudicate what is the just compensation. 4. No doubt, Judges or Presiding Officers are not expected to act like counsel for a particular party but at the same time they cannot just sit like mute spectators and not even put any question to the witness to elicit the truth especially when the examination-in-chief is by way of affidavit. It has been seen more than often that most of the illiterate litigants are not even aware of what has been stated in the affidavits. These affidavits are not the real statements of the witnesses but are the statements prepared by the counsel, signed blindly by the witnesses. In such cases a greater duty and responsibility is cast upon the Tribunals and Courts to elicit the truth. The role of the Judge is always to find out the truth and if to achieve this purpose the Judge is required to ask certain questions from the witness he should not hesitate to do so. 4 5. The Insurance Company in this case filed an application under Section 170 of the Motor Vehicles Act claiming that the claim petition had been filed by the claimants in collusion with the owner and therefore, it be permitted to contest the claim petition on own grounds. 6. The petitioner-claimant filed reply stating that there is no material on record to substantiate the allegation of collusion. Interestingly, the counsel for the insured made a statement that he adopts the reply filed by the claimant to the application under Section 170 of the Motor Vehicles Act. In my view this itself showed collusion between the parties. Be that as it may, when the witnesses were examined there was virtually no cross-examination by the owner and the cross- examination, if any, was totally ineffective. Even when defendant No.1 filed his affidavit, he other than placing on record the driving licence, policy of the Insurance etc. did not say a word with regard to the accident except to state that he was not negligent in the accident. How the accident happened was not disclosed by him. This also clearly shows that he was colluding with the claimant. 5 7. This was a case where the insured was a young boy going to school, hit by a bus, being owned and driven by respondent No.1 Narender Kumar Dhiman. The petitioner sustained serious injuries and claimed compensation of Rs.10,00,000/-. I am purposely not expressing any view on the issues of negligence and quantum because I am of the considered view that the owner and the injured were in collusion with each other, therefore, the matter should be remanded back. The claimant was only nine years old and suffered disability to the extent of 15%. It is not clear whether the disability was in respect of entire body or in respect of a particular limb. The Tribunal did not try to find out the same from the doctor who appeared in the witness box, even though the disability certificate is not clear on the point. The Tribunal assessed various amounts and granted Rs.2,50,000/- as loss of future income. The entire discussion with regard to loss of future income reads as follows:- “21. The loss of income of the petitioner is to be assessed. The petitioner is student and is continuing with the studies. The disability has adversely effected the career of the petitioner. Taking into consideration these facts and nature of disability and age of the petitioner, loss of income is assessed at Rs.2,50,000/- with regard to nature of disability and age of the 6 petitioner, the petitioner has also not be able to exploit his capacity to the fall in future.” 8. I fail to understand how the Tribunal arrived at this figure. It did not assess the future income of the child. It did not assess what was the expected loss of future income. This Court in a number of cases has held that the percentage of disability may not affect the earning capacity in the same manner. There had to be some discussion as to what is the loss of earning capacity. What is the multiplier being used etc. Nothing has been stated and therefore, this part of the award is devoid of any reasoning whatsoever. Furthermore, the Apex Court in large number of cases has held that when the amount is being awarded for future loss then the claimants are not entitled to interest on the same. The loss of future earning would have taken place 12 years later and therefore, how could the claimants be awarded interest on this amount awarded to compensate for a loss which was to take place in future. 9. In view of above discussion, the award of the learned Tribunal is set aside and the matter is remanded to the learned Motor Accident Claims Tribunal to decide the same in accordance with well settled principles of law. The parties through their 7 counsel are directed to appear before the learned Tribunal on 1st November, 2011. The learned Tribunal is directed to ensure that the matter is disposed of latest by 30th June, 2012. September 15, 2011 (Deepak Gupta) (vt) Judge