FAO No.799 of 1998 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH X Obj No.40-CII of 1998 and FAO No.799 of 1998 Date of Decision.24.03.2011 United India Insurance Company Limited ......Appellant Versus Smt. Manju Gupta widow of Sh. Ashok Kumar and others ..... Respondents Present: Mr. R.M. Suri, Advocate for the appellant. Mr. S.K. Chauhan, Advocate for Mr. R.M. Singh, Advocate for the respondents-cross-objectors. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. The appeal by the insurance company is against the award of compensation for Rs.6,72,000/- arising out of death of a person aged 31 years. The claimants were widow and children. 2. The contention of the claimants was that the accident had taken place when the deceased who was a small time shop owner was returning to his village with the goods laden in bags attached to the scooter and there was a collision with the insured's scooter when it was attempting to come on to the main road at the night at around 9 O'clock. A statement had been filed by the insured admitting to the accident but contended that the accident had resulted on account of negligent driving of the insured. The insurance company had merely FAO No.799 of 1998 (O&M) -2- stated in his statement that the petitioner is put to strict proof of the accident and had also stated that if at all the accident had taken place, there was only negligence of the deceased. I do not find any statement specifically contending that there was any collusion between the owner and the claimant especially when the insured owner was filing a statement admitting to the accident. However, at the time of trial, the insurance company relied on report of its own investigator to say that the accident was not true. Surprisingly, nothing was elicited in the examination of the investigator RW-1 except to file a report saying that he suspected genuineness of the claim. The cross-examination of the claimants elicited the fact that the investigation had been carried out by the private investigator without involving the claimants and behind their back. I cannot allow for insurance company to join issue on negligence unless it suspected bona fides of claim and had sought the permission under Section 170 of the Motor Vehicles. A non-involvement of the motor vehicle could be a jurisdictional fact, but it should be specifically brought forth in the pleadings. The insurance company cannot simply introduce evidence at the trial to say that the vehicle was not involved. If there was such an apprehension and the insurer had also the report from the investigator, it must have secured permission from the Court to defend the case on all grounds. If it were to be assumed that it was not merely an issue of negligence but it was on the issue of involvement of the vehicle itself, even that ought to have a basis in the pleadings on the insurance company. I do not find any such pleading. 3. In the grounds of appeal, it was urged that the DDR, which had FAO No.799 of 1998 (O&M) -3- been entered on the statement of the brother-in-law of the deceased on the following day of the accident by the police merely recorded the fact that an accident had taken place when due to a sudden dazzling of light from some other vehicle coming opposite to him, the deceased fell down from his scooter and received fatal injuries. The attempt of the learned counsel for the insurance company was, therefore, to show that this statement recorded in the DDR itself was sufficient to describe the contention of the claimants that there had been no accident involving the respondent's vehicle. Significantly, in this case the person, who was said to have given the statement was not examined. I cannot examine the issue of non-involvement of the vehicle with absolutely no pleading to support such a contention. I will take the involvement of the vehicle as established by the only fact that the trial proceeded on the ground that the vehicle was involved and the issue was only whether there was negligence or not. I do not find even a suggestion to PW-2, who claimed to be eye-witness that there was no accident. The attempt in the cross- examination was to elicit that he was not there but the suggestion must have been also that the accident itself did not take place and that he was speaking untruth. I find no such evidence brought out through the cross-examination of PW-2. I will not under these circumstances accept the plea of the insurance company that there had been no accident involving the insured's vehicle and that the claim was the result of fraud and collusion. 4. The Tribunal has awarded the compensation taking the income to be Rs.4,000/- per month and after providing for personal expenses, it had adopted a multiplier of 16. There is also a cross objection for FAO No.799 of 1998 (O&M) -4- enhancement and I find that the award has been passed on due consideration of all the relevant facts. There is no scope for enhancement for claim of compensation. 5. The appeal is dismissed and the cross objection also dismissed. (K. KANNAN) JUDGE March 24, 2011 Pankaj*