IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 521 of 2007 Date of Decision: 10th March, 2009 Oriental Insurance Co. Limited Appellant Versus Smt. Asha Devi and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Dr.Lalit Sharma, Advocate. For respondent No.1 to 4: Mr.Bimal Gupta and Mr.Karan Singh Kanwar, Advocates. None for remaining respondents. Sanjay Karol, J. (Oral) The Insurer has assailed the award dated 31.12.2004 passed by Motor Accident Claims Tribunal, Kullu, District Kullu, H.P. in Claim Petition No.54-01/53-04, titled as Smt. Asha Devi and others vs. Shri Nawang Tenzin and others. Shri Vikram Ram met with an accident on 18.9.2000. He was travelling in Gypsy No. HP-02-4399, owned by Shri Nawang Tenzin, (respondent No.6 herein) and driven by Shri Prem Singh alias Prem Lama (respondent No.7 herein). In the said accident Shri Vikram Ram sustained injuries and died due to the same. Whether the reporters of Local Papers are allowed to see the Judgment? 2 His legal heirs being the wife, mother and minor children filed a petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.10 lacs. The owner and the driver of the vehicle did not contest the petition and remained ex parte. The present appellant, being original respondent No.3, in the claim petition filed its reply inter alia pleading that the vehicle in question was being driven by the driver, who did not possess a valid and effective driving licence and thus even though the vehicle was insured, the material terms and conditions of the policy stood breached and as such, they were not liable to indemnify the insured. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether Vikram Ram on 18.9.2000 was travelling in vehicle bearing No.HP-02-4399 driven by respondent No.2, as alleged? OPP. 2. If issue No.1 is proved whether said vehicle bearing No.HP-02-4399 met with accident at 3.15 a.m near Beas nallah Gulaba as a result of rash and negligent driving by respondent No.2 and consequently Vikram Ram suffered injuries to which he succumbed on the spot as alleged? OPP 3. Whether petitioners are entitled for compensation. If so to what extent and from whom? OPP 4. Whether the respondent No.2 had no valid driving licence at the time of accident as alleged? OPR-3 5. Whether the vehicle bearing No.HP-02-4399 had no valid documents? OPR-3 Opportunity to lead evidence was afforded to the parties. Appreciating the material on record, the Tribunal concluded that the 3 deceased Vikram Ram was travelling in vehicle bearing No. HP-02-4399, which was being driven by Shri Prem Singh, in a rash and negligent manner and due to his negligence the vehicle met with an accident in which the deceased sustained injuries and died due to the same. On the question of compensation, taking into account the income of the deceased to be Rs.6231/- per month, by applying the multiplier of ‘15’, the deceased being 36 years of age, a sum of Rs.77,47,720/- was determined as loss of dependency. Rs.25,000/- was additionally awarded towards conventional charges, loss of consortium and funeral charges and thus in total a sum of Rs.7,72,720/- was awarded as compensation On the question of violation of Insurance policy, the Tribunal relied upon the statement of Shri Abdul Morin (RW-5), District Transport Officer Nalwari (Assam) who proved that the driving licence (Ext.PW-5/A) was renewed from the said licencing authority and thus the driver was possessed with a valid and effective driving licence at the time of accident. The vehicle was also found to have been registered in accordance with the relevant provisions with the State Transport Authority vide registration certificate Ext.RW-1/B and Ext.RW-1/C. The Insurer has filed the present appeal assailing the impugned award. Noticeably the owner and the driver have also remained ex parte in the present proceedings. In fact the said respondents were eventually served by way of publication and have chosen not to cause appearance and contest the present appeal. Dr.Lalit Sharma, learned counsel for the Insurer has restricted the challenge to the impugned award with respect to the finding on Issue No.4 only. The challenge is on the ground that adequate 4 opportunity of leading additional evidence and proving that the licence was fake not afforded to the Insurer. It is submitted that he has no objection if the awarded amount alongwith appropriate interest be released in favour of the claimants and the matter be remanded back for consideration afresh after affording due opportunity of leading evidence and hearing on the said issue. In support of his submissions he has relied upon a decision of Apex Court in New India Assurance Co., Shimla vs. Kamla and others, (2001) 4 SCC 342, wherein the Apex Court has held as under:- “The Insurance Company must have, under law, the opportunity to substantiate its contention that the document is a fabricated one. The Claims Tribunal went wrong in denying such an opportunity to the appellant Insurance Company.” The licence in question being Ext.RW-5/A was proved to have been renewed by the District Transport Office, Nalwari (Assam). The renewal is valid with effect from 13.1.2002 upto 12.1.2003. The accident took place on 8.9.2000. RW-5 has further deposed that original licence No.6032/Wakta/96, was issued by the DTO, Wakta, Nagaland. The Insurer placed on record a report of the Surveyor (Mark RY) as also the certificate issued by said Licencing Authority (Mark RX) certifying that driving licence bearing the said number had not been issued in the name of Shri Pram Lama. From the record, it is apparent that appellant twice moved an application for appointment of Local Commissioner which was not pursued. The record reveals that an application for leading additional evidence filed by the Insurer was allowed on 18.1.2003 but, however, order dated 9.12.2004 also reveals that the Insurer had taken steps for summoning 5 the witness from the Licensing Authority, Wakta (Nagaland) and in spite of service of summons, the witness did not appear. The Tribunal itself also observed that Wakta (Nagaland) is a terrorist affected area and service of summons could be effected only with great difficulty. It was only after the Insurer was unsuccessful in procuring the attendance of the witness that the report of the Licensing Authority was tendered in evidence. It is true that even at that time no steps were taken to produce and examine the Surveyor as a witness, but, however, the fact of the matter is that there is material on record from which it can be reasonably inferred that the original licence itself had not been issued in the name of driver Prem Lama by the Licensing Authority and the Insurer could not examine the relevant witness as his attendance from the terrorist affected area could not be enforced. The fakeness/genuineness of the original licence required to be proved in accordance with law. In this view of the matter, in the interest of justice last opportunity for proving its case is necessarily required to be afforded to the Insurer. The findings of the Tribunal on all the issues except Issue No.4 are affirmed. The findings on Issue No.4 are set aside and the matter is remanded back to the Tribunal for affording last opportunity for leading additional evidence to prove its case. The Tribunal shall issue notices only to the owner and the driver before recording the statement of the Insurer’s witness(es). The claimants need not appear at all. Dr.Lalit Sharma undertakes that after the service of owner and the driver is complete the he shall not take more than two opportunities for leading the evidence of the Insurer. On the limited point, the matter is 6 remanded back to the Tribunal. The present appeal is disposed of, accordingly. Dr.Lalit Sharma undertakes to cause appearance before the Tribunal concerned on 2.4.2009. Record be sent back immediately. CMP No.1063/2007 Mr.Gupta does not press the present application with liberty to file a fresh application for release of the amount in terms of the award. The Registry is directed not to remit the awarded amount deposited in this Court to the concerned Tribunal as Mr. Gupta intends to move an appropriate application for release of the same. The application is disposed of as not pressed. CMP No.1142/2007 Dismissed as infructuous. 10th March, 2009 (Sanjay Karol) (C) Judge.