IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 344 of 2010 Date of decision: 15.9.2011 The IFFCO Tokio General Insurance Company ….Petitioner Versus Kamla Devi & Ors. …..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes. For the petitioner: Mr. B.S. Chauhan, Advocate For the respondents: Mr. Tarlok Chauhan, Advocate for respondents No. 1 to 5. Mr. Vijay Chaudhary, Advocate, for respondents No. 6 to 11. _____________________________________________________ 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 2 is the duty of this Court to interfere and set aside 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 3 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 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. I am constrained to observe that in the present case the learned Tribunal sat like a mute bystander and while passing the award stated that since the claimant had not been cross-examined on the issue of income, her statement that her husband was earning Rs.8,000/- per month should be accepted to be correct. 6. The Insurance Company filed an application stating that there was collusion between the claimant and the owner and driver and the Insurance Company be granted permission to contest the claim on their behalf. This application was rejected. Thereafter when the evidence was led, the claimant filed her affidavit, in which it was stated that her husband was working as a mason engaged in dressing of stones and was earning Rs.8,000/- to Rs.10,000/- per month. In the claim petition it has been stated that his income was Rs.8,000/- per month. The cross-examination of the owner is only to the extent that the accident did not take place due to negligence of the driver and that the claimant has made a false statement. The claimant was not subjected to any other cross- examination. This by itself clearly indicated that there was collusion between the owner and the driver and the claimant. At this stage itself either 5 the Tribunal should have granted permission to the counsel for the Insurance Company to cross- examine this witness or should have itself put some questions to the witness to elicit the truth. I would like to make it clear that this Court is not expressing any opinion on what was the income of the deceased, but I am of the considered view that injustice has been done in the present case because the statement of the claimant has been accepted as a gospel truth in a case where apparently there was collusion between the claimant and the owner and driver and the Insurance Company was not given the opportunity to cross-examine the witness. In the petition itself, the Insurance Company has stated that the facts clearly indicate collusion and therefore, the Insurance Company should be permitted to cross-examine the witness and lead evidence both on the issues of negligence and quantum. 7. In view of the above discussion, it is my considered view that the owner has virtually not put any question to cross-examine the claimant and therefore the award cannot be sustained. The same is accordingly set aside and the matter is remanded to the learned Tribunal who shall again give an opportunity to the claimants to come forward for 6 cross-examination and to produce any other evidence, they may desire to produce regarding the income of the deceased. The Insurance Company shall be at liberty to cross-examine the claimants and other witnesses and also to contest the claim on all issues including the issues of negligence and quantum by leading evidence. The parties through their 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