FAO NO. 1967 of 2011 & FAO NO. 2889 of 2011 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1- FAO NO. 1967 of 2011 (O&M) Date of order: 21.10.2011 Dharam Pal ..... Appellant Versus Ramesh and others ..... Respondents 2- FAO NO. 2889 of 2011 Date of order: 21.10.2011 Inder Lal Katyal and another ..... Appellants Versus Ramesh and others ..... Respondents -- CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Pardeep Goyal, Advocate for the appellant in FAO No.1967 of 2011 and for respondent no.2 in FAO No.2889 of 2011. Mr.Ram Bilas Gupta, Advocate for the appellants in FAO No.2889 of 2011 and for respondents no.3 and 4 in FAO No.1967 of 2011. Ms. Vandana Malhotra, Advocate for respondent no.2 in FAO No.1967 of 2011 and for respondent no.3 in FAO No.2889 of 2011. **** FAO NO. 1967 of 2011 & FAO NO. 2889 of 2011 2 Vijender Singh Malik, J. The above mentioned two appeals have been brought questioning the award dated 28.10.2010 passed by learned Motor Accidents Claims Tribunal, Faridabad (for short 'learned Tribunal'), vide which the claim petition brought by Inder Lal Katyal and his wife Smt. Nirmal Katyal on the death of their son Deepak Katyal, having occurred on account of the injuries suffered in a road side accident on 13.10.2008, has been allowed awarding compensation in a sum of Rs.4,02,104/-. As common questions of law and facts are arising in the two appeals, so they are being decided by way of this common judgment. The brief facts of the case are as under:- On 13.10.2008 Deepak Katyal was going on motorcycle bearing registration No.HR-29R/2769 from Faridabad to Manesar, District Gurgaon for attending to his duties. At about 8.40 AM, when he was near Manesar Club, a TATA-407 bearing registration no. HR-55-A/0229 driven by Ramesh, respondent no.1 came in a rash and negligent manner and had hit the motorcycle of the deceased, on account of which, the motorcycle of the deceased fell down on the road and he suffered multiple injuries. Respondent no.1 escaped from the spot with his vehicle after causing the accident. One Ajay Kumar brought Deepak Katyal to M/s Rajesh Hospital, Manesar where he was given first aid. On account of serious injuries, Deepak Katyal was referred to Max Hospital, Gurgaon where he succumbed to his injuries on the same day. FAO NO. 1967 of 2011 & FAO NO. 2889 of 2011 3 The accident was reported to Police Station Manesar, District Gurgaon vide FIR No.353 dated 13.10.2008. Claiming that Deepak Katyal was 22 years of age at the time of his death, a sum of Rs.15,00,000/- has been claimed as compensation. The respondents have resisted the claim petitions. The owner and driver, respondents no.1 and 2, in their joint written statement have denied the maintainability of the claim petition. They have also denied the claimants to have any cause of action or locus standi to file the petition. It is denied that respondent no.1 had caused any accident. In this way, claiming the FIR to be false, a defence of total denial was set up. Respondent no.3, the insurance company has only admitted the insurance of offending vehicle with it. However, it has denied the very accident and involvement of insured vehicle in the said accident. The insured is alleged to have violated the terms and conditions of the insurance policy as he had given the vehicle to a person for driving, who was not holding a valid and effective driving licence. Claiming the deceased himself to be the author of the accident, the petition is prayed to be dismissed. On the pleadings of the parties, the following issues were framed by learned Tribunal:- “1- Whether the accident in question took place due to rash and negligent driving of TATA 407 No.HR-55A-0229 by Ramesh, respondent no.1 ?OPP FAO NO. 1967 of 2011 & FAO NO. 2889 of 2011 4 2- If issue no.1 is proved to what amount of compensation, the petitioners are entitled to and from whom?OPP 3- Whether the petition is not maintainable in the present form?OPR 4- Whether the petitioners have no cause of action or locus standi to file the present petition?OPR 5- Whether the claim petition has been filed in collusion with respondents no.1 and 2 ?OPR3 6- Whether the petition is bad for mis-joinder and non- joinder of necessary parties ?OPR 7- Whether respondent no.1 was not holding a valid and effective driving licence at the time of alleged accident and the insured has also violated the other terms and conditions of the policy and as such respondent no.3 is not liable to make payment of compensation, if any?OPR3 8- Relief.” The parties led their respective evidence and hearing learned counsel for the parties, learned Tribunal awarded compensation in a sum of Rs.4,02,104/- to the claimants vide the impugned award. Under issue no.7, it has been held that respondent no.1 was not holding a valid and effective driving licence at the time FAO NO. 1967 of 2011 & FAO NO. 2889 of 2011 5 of alleged accident and that the insured has violated the terms and conditions of the insurance policy and, as such, respondent no.3 is not liable to pay compensation. The award has, consequently, been passed against respondents no.1 and 2 and their liability has been found to be joint and several. Aggrieved by the aforesaid award, the owner of the offending vehicle Dharam Pal has brought FAO No. 1967 of 2011 and dissatisfied that the amount awarded as compensation, the claimants have brought FAO No.2889 of 2011. I have heard learned counsel for the parties and have gone through the record carefully. Shri Pardeep Goyal, learned counsel for the appellant in FAO No. 1967 of 2011 has questioned the finding recorded by learned Tribunal on issue no.7 . According to him, what has been relied upon by learned Tribunal to exonerate the insurance company from the liability, is the letter of the investigator of the insurance company, which is Annexure A-1. According to him, this document cannot be taken as sufficient to prove that the licence placed on the file by the driver as Mark B is not valid. According to him, the onus to prove that the driver did not possess a valid and effective driving licence on the date of accident and that for this reason, the insured has violated the terms and conditions of the insurance policy was upon the insurance company and that the insurance company has not discharged that onus. He has further submitted that learned FAO NO. 1967 of 2011 & FAO NO. 2889 of 2011 6 Tribunal has fallen in error in believing the report of the investigator on this point without any further proof from the authority issuing the licence to prove that the same is fake. According to him, in this event the finding on issue No.7 is to be recorded against the insurance company and the liability to pay compensation has to be of respondents no.1 to 3. Shri Ram Bilas Gupta, learned counsel for the claimants in FAO No.2889 of 2011 has submitted that no amount has been awarded for transportation of the dead body. According to him, even learned Tribunal has failed to grant interest on the amount of the award without any reason. He has submitted that award is bad in this regard. Ms. Vandana Malhotra, learned counsel for the insurance company has submitted that the document Annexure A-1 which was Ex.R- 2 before learned Tribunal is sufficient to prove that the driving licence of Ramesh, respondent no.1 was not valid. According to her, the investigator had obtained information under RTI Act and he had conveyed that information to the insurance company, which had placed on record the said document. According to her, the insurance company has discharged its onus successfully and learned Tribunal has not erred in placing reliance on the same. She has, however, conceded that learned Tribunal has failed to award interest on the award money without giving any reason for the same. She has, however, disputed the claim for any transportation expenses. According to her, there was no evidence on the record to prove that any amount had been spent by the claimants in transportation of the dead body. FAO NO. 1967 of 2011 & FAO NO. 2889 of 2011 7 Mr. Bappa Manna (AI), Investigator wrote to the Manager of the insurance company on 28.04.2009 about his visit to the licensing authority PVD, Kolkata on 20.03.2009 for verifying the driving licence. He has then mentioned that after proper verification from the office record of the licensing authority, he had found that the particulars of the same are not in order because the licensing authority ARTO told, “the method of given data on the subject DL is never been issued by the department” This document does not show that this is based on any information received on any query submitted under RTI Act. No communication of the licensing authority in reply to any such query has been placed on the file. It is the subjective report of the investigator which has nothing on the record to support his finding. This report can hardly prove the fact that the driving licence submitted by Ramesh is fake or having not been valid and effective on the date of accident. Even the investigator did not appear to depose about his own findings from the record of the licensing authority and in these circumstances, this communication of the investigator by itself was not sufficient to prove the fact that the driving licence of respondent no.1 was fake. In these circumstances, the insurance company had miserably failed to prove that the driving licence of Ramesh was not valid and effective on the date of accident. The finding of learned Tribunal on issue no.7 is, therefore, reversed. FAO NO. 1967 of 2011 & FAO NO. 2889 of 2011 8 No documentary or oral evidence has been led on the file by the claimants to prove their spending any amount of transportation of the dead body of Deepak Katyal, their son. In the absence of that evidence, no amount can be awarded as compensation for such expenses. However, learned Tribunal has failed to award interest on the compensation. It appears that it is inadvertent mistake on the part of learned Tribunal, which can be corrected in this appeal. For the foregoing reasons, both the appeals are allowed. The amount of compensation shall carry interest at the rate of 7.5% per annum from the date of filing the petition till its realization. The liability of respondents i.e. driver, owner and insurance company shall be joint and several for payment of compensation. (VIJENDER SINGH MALIK) JUDGE 21.10.2011 dinesh