IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1217 of 2004 Date of decision:07.09.2010 Oriental Insurance Company ....Appellant versus Smt. Santosh and others ...Respondents II. FAO No.1476 of 2004 Smt Shanti and others ....Appellants versus Vinod Kumar and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Vinod Chaudhri, Advocate, for the appellant in FAO No.1217 of 2004 and for respondent No.2 in FAO No.1476 of 2004. Mr. Arvind Bansal, Advocate, for respondents 2 to 4 and for the appellants in FAO No.1476 of 2004. Mr. Naveen Mahajan, Advocate, for respondent No.1 in FAO No.1476 of 2004 and for respondent No.5 in FAO No.1217 of 2004. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The two appeals arise out of the same accident and are being disposed of by a common judgment, FAO No.1217 of 2004 filed by the Insurance Company denying liability and the fact of accident and FAO FAO No.1217 of 2004 - 2 - No.1476 of 2004 for enhancement of compensation for the death in the motor accident. 2. The claimants' contention was that the deceased, husband of the first claimant, was a passenger in a three-wheeler and in a collision with the insured's vehicle which was the Tata 407 Model, the deceased was thrown out of the vehicle and he was admitted in the hospital on the same day on 01.03.2002 and died on 10.03.2002. The post-mortem states that he died out of septicemia and shock. The owner-cum-driver of the alleged offending vehicle was stated to be colluding with the claimant and, therefore, the Insurance Company applied for permission to contest the case on all grounds. The same was also accorded to the Insurance Company. 3. At the trial, the claimant examined herself and produced the evidence of the person, who had given the complaint to the police on the basis of which a FIR had been registered on the same day. Yet another person, who was said to be a passenger, sitting on the front seat of the three-wheeler, was also examined making a reference about the details of the accident. The driver/owner of the alleged offending vehicle did not tender any evidence. The Insurance Company produced a report of its own investigator, who was incidentally a lawyer, was of the opinion that the accident was fake and the insured's vehicle had been falsely implicated in collusion with the claimants. 4. The Tribunal rejected the contentions of the insurance, accepted the evidence tendered by the witnesses. It also found that the fact that the vehicle number of the insured's vehicle was not mentioned FAO No.1217 of 2004 - 3 - in the FIR was not very serious, particularly by virtue of the fact that even in the FIR, the colour of the vehicle and the make of the vehicle as Tata 407 had been mentioned. There were therefore definitely some important details about the vehicle that had been mentioned and going by the fact that the FIR had been registered immediately after the accident, it correlated the accident to the involvement of the insured's vehicle to uphold the claim of the claimants. 5. The learned counsel for the Insurance Company would contend that the accident was alleged to have been the result of a head-on collision and the vehicle was alleged to have hit at the right side of the vehicle of the three-wheeler. If the place of impact had been on the right side, curiously there was no injury to the driver/owner, nor was any serious damage reported to the three-wheeler itself. There were no other seriously injured persons except the deceased which, according to the learned counsel, was improbable. If there had been a head-on collision which was so severe as to caused the death, it was inconceivable that no other person had been seriously injured. 6. When the issue is whether a particular vehicle is involved in the accident or not, the Tribunal is bound to adjudicate on the same on the basis of evidence adduced before it. If there had been an immediate report of an accident before the police and FIR had also been registered giving out the details of the vehicle with reference to its manufacture and colour, in my view, it would be irrelevant that the registration number had not been mentioned. In this case, the driver/owner was the first respondent and he had not given any evidence, although a written FAO No.1217 of 2004 - 4 - statement was filed denying the accident. The counsel for the Insurance Company would state that the driver of the vehicle had been challaned nearly five months later and that itself proof of the collusion. Collusion is invariably a matter of inference and may not be capable to direct evidence. It is not possible to expect the claimant to examine the respondent/driver as his witness. Situations could so exist that it may seem obvious that the claimants had deliberately colluded with the respondent if they had made him admit to the claim. In this case, the owner of the vehicle did not admit to any claim. On the other hand, he had filed a written statement denying the accident. If the Insurance Company were to contend that there was a collusion, probably the best method of bringing out such an aspect was when it was appointing an investigator, it should have made a attempt to examine the driver/owner and try to elicit the details about the accident. 7. To the insurer, there is a privity of contract with the insured. An insured cannot make himself inaccessible to information. At the time when a Tribunal grants permission under Section 170, it does not undertake a roving enquiry on whether there exists collusion or not. A prima facie consideration of whether the insurer has the benefit of assistance of the insured and if it is stated by the insurer that the insured is not supporting the insurer's cause, Courts normally grant permission. At the trial, when evidence is given on the side of the claimants through witnesses implicating a particular vehicle and the insurer undertakes the task of satisfying to itself whether a particular vehicle was involved in the accident or not, it cannot come to the conclusion that the insured is FAO No.1217 of 2004 - 5 - not prepared to support the defence, unless it had engaged in some form of communication that is repulsed by the insured. Even the so-called investigation does not give out any details whether the insured was contacted and whether the statement of the claimants relating to the accident could be vouched to be true or not. In this case, when the insured files a written statement denying the accident, certainly it cannot be stated that at that stage itself, the insured knew that there was any collusion. If there was a collusion, the insured would have rather not filed a statement or he would made an express admission relating to the accident. If therefore the insured had a reason to suspect collusion, it could not have been without any effort on his part to secure the attendance of the insured in Court and that proof must be available through some evidence which the insurer himself must have tendered before the Court. A mere contention that the insured was not prepared to support its defence shall not provide an answer to its advantage when the insurer has an uphill task to make unreliable the evidence tendered on the side of the claimants. 8. In my view, the evidence of the first informant about the involvement of the insurer's vehicle cannot be brushed aside legally. If evidence is adduced on the side of the claimants about the involvement of the insured's vehicle, the non-examination of the driver, who is said to have caused the accident, must be taken more to the disadvantage of the insurer than to the claimant. If there was a collusion, the claimants themselves would not come into the open by putting the insured's driver as their witness to support their claim. A collusion is done in secrecy FAO No.1217 of 2004 - 6 - and no claimant would undertake the brazen task of examining the insured. It is not the samething for the insurer. It ought to be possible to compel the attendance of the insured or his driver and if it had a difficulty, then somebody must give evidence to the said fact. If only such evidence is brought by the insurer then it can nullify the effect of evidence tendered by the claimants. If evidence is not evenly matched, then in a welfare legislation such as the MV Act, there shall be nothing wrong to lean in favour of the claimants and uphold the version given on the side of a claimants. 9. I am not again impressed by the fact that the details of the registration number are not in the FIR nor am I prepared to take a different view only by the fact that the driver was challaned five months later. I cannot take an adverse view of what the police had probably done or failed to do so, which may be relevant in a criminal case for an adjudication. Before the Tribunal, when there was evidence of the involvement of the vehicle and the Tribunal had taken such a view, I will not disturb, unless the finding is seen to be perverse. I do not find such perverse finding in the approach of the Tribunal and, therefore, would uphold the finding of the involvement of the insured's vehicle. 10. There is also an appeal for enhancement of the claim for compensation. The deceased was said to be aged 27 years, as per the version of the claimants and the evidence was that he was a casual labourer of the Forest Department working on daily wages. The Tribunal took the income to be Rs.2,100/- as per the scale of salary given to such daily workers. The learned counsel for the claimants would contend that FAO No.1217 of 2004 - 7 - the prospect of increase in salary must be provided and that he would have been confirmed in employment. He would therefore seek for application of the principle enunciated by the Hon'ble Supreme Court in Sarla Verma and others Versus Delhi Transport Corporation and another-2009 ACJ 1298. The Hon'ble Supreme Court was actually dealing with the case of a person in regular service on regular scales of pay. They were not considering the case of a casual worker or a person on daily wage basis. When a daily wager's employment is precarious and the Tribunal took the salary to be Rs.2,100/- as per DC rate, it was applying a relevant yardstick. I cannot therefore provide for a prospect of an increase in salary. I would provide for deduction of 1/3rd to be made and take the contribution to the family to be Rs.1,400/-. It must be noticed that the appeal has been filed at the instance of the mother, minor child and the father only. The wife who is said to have re-married after the death has not joined in the appeal. The learned counsel states that for the four dependents, the deduction should be 1/4th. I would take a subsequent event as a relevant fact. If the wife has remarried, it is definitely a circumstance which will be relevant for scaling down the extent of dependence. Yearly dependence would therefore be Rs.16,800/-. I would provide for a multiplier of 17 and take the amount payable to be Rs.2,85,600/-. I would add conventional heads of claim for loss of consortium, love and affection, loss to estate and funeral expenses for the remaining amount of Rs.14,400/- and round it off to a figure of Rs.3 lakhs. The Tribunal has provided another Rs.4,000/- for medical expenses which also I shall include, which will take the amount to be FAO No.1217 of 2004 - 8 - Rs.3,04,000/-. The Tribunal has already awarded Rs.2,60,000/-, the amount in excess shall bear interest at 6% from the date of the petition till the date of the payment. The appeal filed by the claimants shall stand increased to the above extent. The apportionment of the compensation shall be done in the same proportion and manner as already provided by the Tribunal. The learned counsel also states that the increased amount may be directed to be given to the minor child only. The same shall therefore remain in deposit during the minority and it shall be released to the minor on attaining majority. The appeal is party allowed to the above extent. The appeal by the insurer shall stand dismissed. (K.KANNAN) JUDGE 07.09.2010 sanjeev