IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 49 of 2008 Date of decision: 28.9.2011 New India Assurance Company Limited ..Appellant. Versus Om Singh & Ors. …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No. For the appellant: Mr. K.D. Sood, Advocate. For the respondents: Mr. Ravinder Thakur, Advocate, for respondent No.1. _____________________________________________________ Deepak Gupta, J(oral). By means of this appeal, the appellant has challenged the award dated 6.11.2007 passed by the learned Motor Accident Claims Tribunal (Fast Track Court), Solan whereby he awarded a sum of Rs.8,21,744/- in favour of the claimant. 2. The main ground raised by the appellant is that the application filed by it under Section 170 of the Motor Vehicles Act was wrongly dismissed by the learned Tribunal only on the ground that it had been filed at a belated stage when the case was fixed for arguments. A perusal of the record shows that issues in the case were framed on 1.8.2007 on which date the owner and driver were also proceeded 2 against exparte. On the next day i.e. 3.9.2007, respondents No. 2 and 3 moved an application, for setting aside exparte proceedings, which was allowed and the evidence of the petitioner was recorded on 6.10.2007 and the matter was adjourned to 3.11.2007 for evidence of the respondents. On 3.11.2007, the owner and driver did not lead any evidence but tendered in evidence certain documents. The counsel for the Insurance Company moved an application under Section 170 of the Motor Vehicles Act seeking permission to contest the petition on all grounds. The application was dismissed and on the same date, which was the first date for evidence of the Insurance Company, the right of the Insurance Company to lead evidence was also closed by order of the Court. To say the least this order showed total non application of mind. The relevant portion of the order dated 3.11.2007 reads as follows:- “Counsel for respondents No. 1 and 2 tendered documents Ex. R1 and Ex. R2 and closed evidence on behalf of respondents No. 1 and 2. Evidence on behalf of respondent No.3 is not ready. The evidence on behalf of respondent No.3 is closed by the order of the court. Counsel for respondent No.3 has moved an application under Section 170 of M.V. Act. Copy is supplied to counsel for the petitioner. The application is considered. The applicant has been filed when the case is at the stage of final arguments. Even otherwise, there is nothing on record to show that there is any collusion between 3 petition and respondent No.2 i.e. insured. Hence the application is dismissed. Arguments are heard. For orders put up on 6.11.2007.” 3. It is apparent that 3.11.2007 was the first date fixed for the evidence of the Insurance Company. The owner and driver did not lead any evidence and they had tendered in evidence the insurance policy and the driving licence. It is thus obvious that they were not contesting the case on merits and collusion was writ large. 4. 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 virtually not 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 spectators and do not even try to elicit the truth and the statement of the witnesses are accepted as the gospel truth. 4 5. The Tribunals must realize that under the provisions of the Motor Vehicles Act especially Section 166(4) the claims Tribunal can even treat 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 Statute imposes upon them the duty to adjudicate what is the just compensation. 6. 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. 7. I am constrained to observe that in the present case on the first date the evidence of the Insurance Company 5 was closed. The application filed by it under Section 170 of the Motor Vehicles Act was dismissed only on the ground that it had been filed at the stage of arguments without realizing that on that very date i.e. 3.11.2007 the other co-respondents had not led any evidence to counter the evidence of the petitioner. This itself indicated that there was some collusion between them and the claimant. Arguments were heard on that very day. 8. The question that arises is whether this case is to be remanded or not. As far as the negligence is concerned, in my opinion, there is sufficient material on record to show that the accident occurred due to rash and negligent driving of the driver. The main issue raised by Shri K.D. Sood, Advocate is that the award is very excessive. The deceased served in the Indian Army and as per the salary certificate his total emoluments at the relevant time were Rs.5,454/- per month. The learned Tribunal has deducted 1/3rd towards the personal expenses of the deceased. The deceased was aged about 31 years and the claimant is his mother. The Tribunal has deducted 1/3rd i.e. Rs.1818/- per month on the personal expenses of the deceased and after assessing the dependency at Rs.3636/- per month, applied the multiplier of 17 and assessed compensation at Rs.7,41,744/-. In addition thereto, the claimant has been awarded Rs.20,000/- for funeral expenses, Rs.60,000/- for loss of love and affection and interest at the rate of 7½ per annum. The award is not at all 6 in consonance with the well settled principles of law. At the time when this award was announced on 5.11.2007, there were various judgments of this Court holding that where the claimants are the parents their dependency can be assessed only at 1/3rd of the income. Thereafter, the Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, held that in cases where the deceased is an unmarried person, normally 50% should be taken to be the expenses of the deceased and the dependency of the parent-claimant(s) should be assessed at 50%. At this stage the law is well settled that when the claimant is the mother normally the dependency should be taken at 50%. However, in the present case one factor which the learned Tribunal has not considered at all and of which this Court take judicial notice is that in the Indian Army the army personnel are entitled to free rations and accommodation. Therefore, naturally their personal expenses are less than that of other employees. Keeping in view all these factors, I feel that the dependency of Rs.3636/- per month or Rs.43632/- per annum arrived at is reasonable. 8. Coming to the issue of multiplier, again the learned Tribunal has totally misdirected itself in applying the multiplier of 17. In a number of cases, the Apex Court as well as this Court has held that the multiplier has to be fixed keeping in view the age of the deceased or of the claimants whichever is higher. In this case the age of the mother is 7 about 60 years. Therefore, at best the multiplier of 9 could have been the best. The compensation on this account works out to Rs.3,92,688/-. In addition thereto the claimant is held entitled to Rs.10,000/- as funeral expenses and Rs.20,000/- on account of loss of love and affection. A higher sum is being awarded in this case because as per the evidence the deceased was the only son of the claimant, therefore, the total compensation works out to Rs.4,22,688/-. The claimant is held entitled to interest @ 9% per annum on the awarded amount from the date of filing of the petition till payment/deposit of the awarded amount. 9. In view of above discussion, the award of the learned Tribunal is accordingly modified and the compensation awarded to the claimant reduced from Rs.8,21,744 to Rs.4,22,688/-. However, it shall carry interest at the rate of 9% per annum from the date of filing of the petition till the amount is deposited. The appeal is disposed of accordingly. No costs. September 28, 2011 ( Deepak Gupta ) (vt) Judge