FAO No.1446 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1446 of 1994 DATE OF DECISION: January 27, 2011 SMT. RAJ PATI ...APPELLANT VERSUS SURENDER SINGH AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement. Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. I.P.S. DOABIA, ADVOCATE FOR THE APPELLANT. NONE FOR RESPONDENT NO.1 AND 2. MR. R.K. BASHAMBOO, ADVOCATE FOR RESPONDENT NO.3. K.KANNAN, J.(ORAL) 1. The appeal is against the award of dismissal of the claim of compensation for death of a boy aged 25 years working in a factory in Faridabad. The claimant is the mother. The mother had the unfortunate episode of being told about the death of her son 15 days later and by that time even the body had been cremated. The agony for the death does not end here. The fact of death had been recorded in an FIR on a complaint alleged to have been made by one Shankar who had stated that a person was getting down from the bus which seemed like U.P. Road Transport Corporation was run over and got killed. The fact that the person died in a motor accident itself was not an issue, but, however, the case stood for consideration on an averment made by the petitioner that the death had resulted by the use of a motor vehicle that belonged to respondent No.2, Narender Kumar driven by one Surender. PW2 Somvir Singh gave evidence in Court that he witnessed the accident and he saw the FAO No.1446 of 1994 -2- involvement of a Maruti car bearing registration No.HR26/8158. The petition gives details of the residence and address of the driver and the owner. They had been served, but they remained ex-parte. 2. There was an obvious contradiction between what was contained in the FIR and what was stated by PW2. PW2 had given some graphic details about the accident. He said that he saw the Maruti car with a particular registration number coming from Palwal side and a boy coming from Ballabgarh side was in the process of crossing the road. It was at that time that car hit him. He also stated that the driver of the car had stopped for a while and at that time he had noted down the number of the car in the diary. He had stated that he had written the number there and then. It could have been rejected as exaggerated version or indefensible, if there was a contra evidence to the evidence of PW2. In this case, the driver and the owner had been served and they did not choose to enter a defence and deny the contentions raised against them. The insurance company was represented through counsel and strangely I find that the insurance companies did not no more than merely deny the accident. There are certain rights with the insurance company has, both under the Motor Vehicles Act of 1939 as well as in the Motor Vehicles Act of 1988. The accident had taken place on 8.11.1991, after the commencement of 1988 Act and Section 133 casts a duty for the owner of the motorcycle to give information about the accident and Section 134 casts a duty on the driver in a case of accident or injury to a person. The information that a driver is required to produce or what the owner is bound to disclose would include even the insurance company, policy number, period of its validity, date of accident, etc. The duty which the law casts on the driver and the owner must be seen in the FAO No.1446 of 1994 -3- context of the parties who are capable of enforcing the duty and that would include the insurer as well. The insurance company that is impleaded in the claim petition cannot force the issue by expecting every case to go through a trial. It shall be a duty of the insurer whenever a claim petition is lodged to make its own investigation and gather appropriate details to assist the Court or the Tribunal. It cannot see itself as an adversary like a private individual and rest contended with filing replies denying every allegation of what the claimant states. A responsible insurer shall proceed as far as to engage investigators if it is necessary to bust fraudulent claims. We have experience of diverse situations, one of insurance company adopting lacadaisical approach in waiting for adjudications to complete before Tribunal even when simple formula of arriving at compensation in proven cases of involvement of the vehicle; there are just as well cases where fraudulent claims are made, when without even an involvement of a vehicle or in a case where it is a case of hit and run some false case is made with obliging an owner or the driver of the vehicle supporting the case of the claimant. Even apart from situation of a false claim or a case where the issue of involvement of a vehicle is in doubt, when a case of involvement of an insured's vehicle is made and the insured remains ex-parte a a responsible insurer shall undertake appropriate investigation and secure with the assistance of police and other such machineries to gather information relating to the accident and place it before Court. 3. In this case, when a claim has been lodged against the insurer and when details of the owner and driver are given, it behoved a duty for an insurer to seek information from its own insured who owed to the insurance company every detail that is necessary. If the owner and the driver FAO No.1446 of 1994 -4- remained ex-parte, a greater vigilance was expected from the insurer to place all the facts which in the presence of driver and the insured the Tribunal could have obtained. I take the absence of driver and owner in this case to be significant and material and would draw adverse inference against the respondents and would look no more than the evidence of PW2 to anchor the liability for the insurer. 4. The claim petition was also dismissed on the ground that the petitioner was barred by limitation. This has no more relevance having regard to the change in law removing the provision relating to limitation. from the scheme of the Motor Vehicles Act. In Dhannalal vs. D.P. Vijayvargiya and others, reported as 1996 ACJ 1013, the Hon'ble Supreme Court has authoritatively held that there is no period of limitation in relation to accident claims so long as the award of the Tribunal has not become final. The pendency of appeal will survive the caase of action for the claimant to pursue without being fettered by law of limitation. 5. The deceased was said to be working in M/s Shri Industries at Faridabad earning `905/-. The claimant was 45 years of age and I would take the loss of dependency as 900/-x½ x12x14 and hold the extent of loss of dependency at 75,600/-. I would add another 5000/- towards loss of love and affection for the mother to her son and 2500/- for loss to estate. In all, the total amount of compensation will be `83,100/-. It will also direct interest @ 7.5% from the date of accident till the date of payment. 6. The award of the Tribunal is set aside and the appeal is allowed to the above extent. The liability shall be on the insurance company. January 27, 2011 (K.KANNAN) Gulati JUDGE