IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No.434 of 2003. Judgment reserved on: 3.11.2008 Date of decision: 7.11.2008 National Insurance Company ……..Appellant Vs. Anita Devi and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Ms. Sunita Sharma, Advocate For the Respondents : Mr. Ajay Sharma, Advocate, for respondent No.12. None for other respondents. Kuldip Singh, Judge. This appeal has been directed against the award dated 2.6.2003 passed by learned Motor Accident Claims Tribunal, Una in MAC Petition No.84/1998, awarding Rs.4,18,000/- compensation along with interest at the rate of 9% per annum in favour of Anita Devi, Surinder Kumar, Ravinder Kumar, Swarni Devi and Sarwan Singh in the ratio mentioned in the impugned award. The appeal has been filed by National Insurance Company. The respondent Sarwan Singh had died during the pendency of the appeal. Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The facts in brief are that bus No.HP-19-1546 which was being driven by respondent No.13 in rash and negligent manner on 2.9.1998 at about 12.05 a.m. hit Charan Singh, dragged him for some distance, Charan Singh later on succumbed to his injuries. The deceased was earning Rs.10,000/- and contributing Rs.8000/-per month for the keep up of the claimants. The claimants being the widow, minor children, brothers, uncle, aunts and parents filed the claim petition claiming Rs.21,00,000/- compensation on account of death of Charan Singh. The respondent No.12 was the owner, respondent No.13 the driver and appellant the insurer of the bus at the time of accident. 3. The petition was contested by respondents No.12 and 13 by filing joint reply and they took preliminary objections of maintainability, non joinder of necessary parties. On merits, it was pleaded that driver of the bus was driving the bus cautiously. The accident took place due to abrupt crossing of road by the scooter from his left to right side. The accident took place due to the negligence of the scooterist. The Insurance Company filed separate reply and took preliminary objections that the driver of vehicle No.HP-19-1546 was not holding valid and effective driving licence at the time of accident. The bus was being driven without valid registration certificate, route permit and in violation of the Motor Vehicles Act and Rules as well as Insurance policy. The insurance company denied the claim. The learned Tribunal has held that accident took place due to rash and negligent driving on the part of driver of bus No.HP-19-1546, as a result of which Charan Singh died …3… in the accident. It has been held that the insurance company has led no evidence so as to prove that driver of the bus was not holding valid and effective driving licence at the time of accident. The learned Tribunal ultimately awarded Rs.4,18,000/- compensation to Anita Devi, Surinder Kumar, Ravinder Kumar , Swarni Devi and Sarwan Singh along with 9% per annum interest. 4. The respondent No.10 had died during the pendency of the appeal and his name was ordered to be deleted. Mr. R.P. Singh, Advocate earlier appeared on behalf of respondents No.1 to 9 and 11, but he did not file Power of Attorney on their behalf. As per the Registry, intimation of the appeal was sent to un-represented respondents and only thereafter the appeal was listed for hearing. 5. I have heard Ms. Sunita Sharma, learned counsel for the appellant and Mr. Ajay Sharma, learned counsel for respondent No.12, none appeared for other respondents. I have gone through the record. The learned counsel for the appellant has submitted that the insurance company has taken a specific stand that driver of the bus was not holding valid and effective driving licence at the time of accident . She has submitted that there is a letter dated 12/17.1.2003 on the file of the learned Motor Accident Claims Tribunal written by Regional Transport Officer, Palakkad to the Motor Accidents Claim Tribunal, Una stating therein that Driving Licence No.4688/70 in the name of Jagroop Singh seems to be a fake one. …4… 6. On 13.12.2002, the learned Tribunal recorded the statement of one RW. RW Clerk from RLA, Palakkad was served but not present despite service. He was ordered to be summoned again through bailable warrant in the sum of Rs.1000/- for 24.1.2003 on filing of process fee. On 24.1.2003 the learned Tribunal had ordered that bailable warrant of clerk from RLA Palakkad was not executed, fresh bailable warrant be issued for 5.3.2003. Again bailable warrant of clerk from the office of RLA, Palakkad was not executed. The learned Tribunal on 5.3.2003 had noticed that a letter from Regional Transport Officer, Palakkad has been received. On 5.3.2003, the learned Tribunal has observed that since the case is pretty old and remaining evidence of the respondents cannot be procured without undue delay and therefore, he closed the evidence of the respondents and fixed the case for final arguments on 15.3.2003 and ultimately announced the award on 2.6.2003. Ms. Sunita Sharma, learned counsel for the appellant has submitted that at no point of time the insurance company was at fault for summoning the concerned clerk from RLA, Palakkad. Infact steps were taken every time by depositing the requisite charges. Mr. Ajay Sharma, learned counsel for respondent No.12 has submitted that the learned Tribunal had given sufficient opportunity to the insurance company for examining the concerned clerk from RLA, Palakkad and therefore, no fault can be found with the order of the learned …5… Tribunal for closing evidence of the insurance company when it failed to examine the concerned clerk. 7. The order of closing the evidence of the insurance company appears to be harsh, more particularly in view of the defence taken by insurance company regarding the validity of driving licence of the bus driver. There is substance in the submission of learned counsel for the appellant that closing of the evidence has seriously prejudiced the insurance company in as much as insurance company could not bring on record the relevant material to prove that the driver was not holding a valid and effective licence at the time of accident, rather he was holding a fake driving licence. No doubt bread earner of the claimants has died in the accident but insurance company cannot be burdened with the award amount unless the claimants have proved the case against the insurance company. The insurance company on every occasion had taken steps for summoning the concerned witness from RLA Palakkad. In fact, once the concerned witness from RLA Palakkad was served but he did not appear despite service and therefore, the learned Tribunal had ordered his service through bailable warrant. The insurance company took steps for service of the said witness through bailable warrant also but ultimately learned Tribunal closed the evidence of the insurance company on the ground that case was old and remaining evidence could not be procured without undue delay. A litigant cannot force the witness to appear in the Court. The litigant can only request the Court for …6… summoning the witness and if Court cannot force the witness to appear in the Court then where the litigant will go. The litigant cannot be blamed in every situation for not producing the witness in the Court. The Court should judiciously look into the matter before closing the evidence on account of delay. In the present case, the concerned witness was served but he did not appear, he was ordered to be served through bailable warrant but was not served and the evidence of the insurance company was closed. The learned Tribunal in view of the defence of the insurance company, has erred in closing the evidence of the insurance company which has caused prejudice to the insurance company. The liability of the insurance company would depend upon the validity of the driving licence of the driver who was driving the bus at the time of accident. In these circumstances, the impugned award is liable to be set aside. 8. No other point was urged. 9. The result of the above discussion, the appeal is allowed. award dated 2.6.2003 passed by learned Motor Accident Claims Tribunal, Una in MAC Petition No.84/1998 is set aside. The case is remanded to learned Motor Accident Claims Tribunal, Una, with a direction to decide the claim petition afresh expeditiously after giving opportunity to the insurance company to produce and examine the witness regarding the validity of the driving licence of the driver who was driving the bus at the time of accident, but it does not mean that opportunities till infinity are to be given to the insurance company to examine the said witness. The learned Tribunal is at liberty to …7… consider examination of concerned witness of insurance company on commission to be appointed at the cost of insurance company. It is made clear that learned Tribunal shall be at liberty to pass appropriate order regarding the evidence of insurance company if after reasonable time the insurance company failed to examine the concerned witness. The appellant and respondent No.12 through their learned counsel are directed to appear before the learned Tribunal on 4.12.2008. The registry is directed to return the record of the learned Tribunal so as to reach before the date fixed. ( Kuldip Singh) Judge November 7, 2008 (sks)