IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Cross Objection No.57-CII of 2006 in/and FAO No.1357 of 2001 (O&M) Date of decision: 06.09.2010 New India Assurance Company Limited ....Appellant versus Smt. Anil and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. V. Ramswaroop, Advocate, for the appellant. Mr. Jaswant Jain, Advocate, for the cross-objectors. Mr. N.K.Sanghi, Advocate, for the respondent. ---- 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 is by the Insurance Company challenging the quantum, negligence and the involvement of the vehicle. The Insurance Company had moved an application for defences under all grounds under Section 170 when the driver and owner had originally remained ex parte. It is seen from the contentions raised by parties that it was posted for filing of counter by the claimants to 02.05.2000 when it appears that there was an application filed by the owner and driver to set aside the ex parte order. The order was set aside and the Tribunal also dismissed Cross Objection No.57-CII of 2006 in/and FAO No.1357 of 2001 (O&M) - 2 - the application, holding that already the Insurance Company had subjected the claimants to intense cross-examination and since the owner and driver were also represented through counsel and they were contesting the case, no permission under Section 170 was necessary. It so happened that the owner and the driver had again remained ex parte. The Insurance Company contends in appeal that the refusal of permission under Section 170 was erroneous. There was a clear case of collusion. The deceased was the brother of the owner of the tractor alleged to have been involved in the accident. They made pretense of entering appearance and as soon as the application moved by the Insurance Company was dismissed, they had again remained ex parte. The closeness of relationship of the claimants to the owner and the conduct of the owner in failing to contest the case were sufficient enough for the Tribunal to have exercised its discretion to allow the Insurance Company to contest the case on all grounds. I find that the order refusing the permission by the Tribunal on 16.05.2000 is erroneous. Since the dismissal of the application is itself among the grounds of appeal, I hold that the insurer was entitled to contest the case on merits as regards quantum and negligence also. This also, in my view, is merely academic. If the contest also is on the basis that the vehicle itself was not involved in the accident, such a defence by the Insurance Company goes into the root of the matter taking it as a jurisdictional issue. It should be possible for an Insurance Company to take such a defence even if it falls outside the realm of Section 149(2) of the Motor Vehicles Act. The contentions such as, that there was no insurance, that there was no accident and that Cross Objection No.57-CII of 2006 in/and FAO No.1357 of 2001 (O&M) - 3 - the accident did not take place in a public place, are all matters that go into the root of jurisdiction of the Tribunal itself and they shall always be permitted to be taken by any party, who is interested in contesting the claim. An Insurance Company against whom the petition is filed operates on public money and it is bound to protect its own interest as laid down by the Hon'ble Supreme Court in United India Insurance Company Versus Bushan Sachdeva-2002(2) SCC 265 ,and the Company is entitled to contest the truth of the allegations relating to the involvement of the vehicle. 2. There are disturbing facts that emerge from the narration of the case by the claimants. In this case, the deceased was one Ram Kanwar and his brother, Satbir Singh, was the owner of the tractor. PW-1 Bhawani Shankar, who claims to be an eye-witness, states that he, along with two other persons namely, Rohtas and Ghanshyam (PW2), were in the tractor driven by Dharampal. Ram Kanwar deceased was stated to have travelled in the same tractor also from Behrod to Shahjahanpur and alighted at Foladpur for some work and asked the driver to pick him up on his return. The tractor was returning at about 6.30 PM and the deceased Ram Kanwar was standing on the road. While he signalled the tractor to stop, the tractor ran over the deceased by rash and negligent driving of the tractor. It is stated that he was run over under the wheel of the tractor. The deceased was said to have been taken immediately to hospital at Kotputli where he was found bleeding excessively. Dr. O.S.Mehra (PW6), who was at the hospital, has recorded this fact in the OPD slip (Ex.P2) and said to have referred Cross Objection No.57-CII of 2006 in/and FAO No.1357 of 2001 (O&M) - 4 - the deceased for further treatment at the GH at Gurgaon. It is not known whether the deceased died at the hospital at Gurgaon or he had died at GH, Kotputli itself. Admittedly, no post-mortem had been conducted. 3. The accident had taken place on 12.01.1995 and a complaint was given by the widow only on 15.02.1995. The cause for the delay is said to be the fact that her husband had died and she could not immediately give a complaint to the police. 4. The Tribunal held that a case had been registered by the police and a criminal case was also prosecuted against the driver. Evidence of Bhiwani Shankar (PW1) and Ghanshyam (PW2), who were said to have travelled in the same tractor, according to the Tribunal, were sufficient to held the involvement of the tractor. In this case, the fact that the complaint was registered with the police after nearly a month, is not without significance for considering whether the vehicle had been involved in the accident. All the more so, when there was no clear evidence that the death had resulted only by the tractor running over the deceased. The post-mortem certificate would have definitely given the cause for the death. An easy explanation was offered that the post- mortem was not conducted at all. The evidence from the doctor was that the deceased was bleeding heavily. At one stage, he had stated that he was brought dead and at another place, it was said that he was referred to GH, Gurgaon for further treatment. If he had not died at the time when he brought to Kotputli Hospital, he should have either died on transit to GH, Gurgaon or at the hospital at Gurgaon. In either case, there is simply no explanation as to why no post-mortem was conducted. Cross Objection No.57-CII of 2006 in/and FAO No.1357 of 2001 (O&M) - 5 - It is not as if nobody knew why he died. After all, as per the version of the claimants, it was not again a case of hit-and-run where the identity of the vehicle was not known. The deceased was said to have travelled by the very same tractor a little earlier and he had given direction to the driver Dharampal to pick him on his return. There were three passengers in the tractor. It is not known first of all as to how there were passengers in the tractor and how the deceased was contemplating to go back in a tractor as a passenger. A tractor in the first place is not designed to carry passengers. I am stating this only to elicit the improbability that he would not have waited to get picked up by the tractor on return. If there were three passengers in the tractor, all of whom had known that the driver Dharampal had by his negligent act run over the deceased Ram Kanwar, the most natural conduct would have been to give a complaint to the police. The person that died was no pedestrian. He was literally their own boss. All these persons were said to have gone for some work assigned to them by Ram Kanwar. If the accident had really taken place, even if they had not gone to the police directly, the fact of death of Ram Kanwar in an accident ought to have reached the immediate members of the family, who would have given the complaint to the police. The owner Satbir could not have attempted to screen his own driver to the detriment of his brother and his family. Blood is thicker than water and the owner Satbir ought to have had no compunction about making a complaint against his own driver. His own sense of outrage must have been extraordinary that he would not have allowed his driver to go unpunished. That no one thought of making complaint for nearly one Cross Objection No.57-CII of 2006 in/and FAO No.1357 of 2001 (O&M) - 6 - month seems so unnatural that it cannot fit in with truth. 5. If we must ignore that the failure to make a complaint to the police is not at all times material and the fact that no FIR had been lodged was not again a very material fact, it is inconceivable as to how there are no hospital records to show that he could have died only in an accident by a tractor running over of the deceased. It was not sufficient to bring a member to say that the deceased died due to bleeding and that it was a case of a road accident. It should have been specifically elicited whether the nature of injuries that he had noted in the OPD were such that they could be resulted from a tractor running over a human body. He must literally been crushed and bones must have fractured. There is no record at all about the various types of injuries on him, other than the evidence that the deceased was bleeding severely from the anus and required further treatment to be sent to GH, Gurgaon. The deceased was again not a man of straw. The immediate relatives were not hapless illiterate people. The deceased was supposed to be an owner of fleet of bus with his own brother Satbir running a transport business in partnership with the deceased brother. He was an income tax assessee. The firm was also an income tax assessee. With the kind of resources that they must have had, it is inconceivable that none of the relatives ensured that proper medical records were prepared to document the fact of death as resulting from a motor accident. The evidence of PW1 and PW2 are so artificial that it surprising that the Tribunal must have decided to rely on the same and shove under carpet, as it were, the gross inadequacies of evidence and held that it was the deceased brother's Cross Objection No.57-CII of 2006 in/and FAO No.1357 of 2001 (O&M) - 7 - vehicle which was involved in the accident. 6. The deceased brother had a reason to come to Court even if it meant supporting the cause of claimants. He ought to have given evidence as to what he did about the driver. He ought to have also given evidence about why he did not go to the police to report that his own tractor was involved in the killing of his brother. He may not have driven the vehicle but still he must have owned up a heinous act of his driver in recklessly running over his brother and killing him, if it were true. The fact that Satbir himself was not examined in Court is exceedingly suspicious. The wife's evidence itself is not convincing. She has not whispered a word as to why there was no one in the family that thought of reporting the matter to the police till she decided to lodge a complaint one month later. She had no more explanation to offer than to make a cryptic statement that there was a delay in lodging the FIR because her husband had died. Poignancy of situation could have been overwhelming but she had a reason to smart under a righteous outrage to the act of their employee being responsible for the death of her husband. She could still not have remained quiet without bringing the guilty to book immediately. The involvement of the vehicle as spoken to by the witnesses is brazenly false and I have no hesitation to set aside the findings of the Tribunal. 7. Even the manner of ascertainment of quantum of compensation by the Tribunal leaves much to be decided. The wife claimed that her husband was associated with a transport business and owned two buses. Her father-in-law and the father of the deceased, was Cross Objection No.57-CII of 2006 in/and FAO No.1357 of 2001 (O&M) - 8 - examined as PW8, who gave evidence that his son owned four buses. None of them thought it necessary to produce any evidence for the ownership of the buses. The father also claimed that his son was having 20 bighas of land and he was himself having 30 to 40 bighas of land which the deceased son was cultivating on his behalf. There was evidence that two persons have been now employed in the place of his son for managing the agricultural land and that they were spending Rs.3,000/- for each person so employed. The income tax returns that had been filed showed that the deceased had return an annual income of Rs.27,990/-. Even it were to be taken that the agricultural income would not have been added, being an exempted source of income, still for computation of the gross income, the agricultural income would have been also shown in the income tax returns. It may be that the said income cannot be taken for the assessment of tax but even then the IT returns would show the income from agricultural land as well. When the IT returns produced for the assessment year 1992-93 was that he had Rs.27,990/- as income, the Tribunal had taken the annual income of the deceased at Rs.20 lakhs. It almost seems like the Tribunal had problems about numbers and would mistake thousands for a lakh and 10,000/- for 10s of lakhs. There was no way that the Tribunal could have determined the annual income at Rs.20 lakhs. Further the claim for compensation was Rs.10 lakhs but the Tribunal took the annual income as Rs.20 lakhs and found the compensation payable at Rs.21,38,000/-. 8. The determination of compensation and the manner in which it had been done, is perverse and cannot stand a minute's judicial Cross Objection No.57-CII of 2006 in/and FAO No.1357 of 2001 (O&M) - 9 - scrutiny. The award of the Tribunal is wholly erroneous and it is set aside. The claim petition ought to have been dismissed and under the circumstances, the award already granted is set aside and the appeal is allowed. The cross-appeal for enhancement of the award is also dismissed. The claimants have obtained the benefit of the award of Rs.5 lakhs without security and another Rs.5 lakhs with security. Having regard to the relatively sound financial status of the parties and the fact that the claimants have secured the benefit of the award, I impose exemplary cost of Rs.25,000/- against the respondents for the brazenly false case that they have filed to stage manage a fake involvement of the insured's vehicle. The same shall be paid to the Mediation Centre, Punjab & Haryana High Court, Chandigarh. (K.KANNAN) JUDGE 06.09.2010 sanjeev