FAO No.567 of 2005 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.567 of 2005 Date of Decision.30.11.2010 National Insurance Co. Ltd., Regional Office-II, SCO Nos.337-40, Sector 35-B, Chandigarh through its authorized signatory, Sh. Rajendra K. Sharma, Administrative Officer ......Appellant Versus Smt. Mohinder Kaur widow of Sh. Harbhajan Singh son of Sh. Rachan Singh and others ......Respondents Present: Mr. Naveen Kapoor, Advocate for the appellant. Mr. Neeraj Khanna, Advocate Mr. Kunal Garg, AAG, Haryana. 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.(ORAL) 1. The appeal is by the insurance company challenging the finding on the issue of negligence filed at the instance of an insurer, who had the benefit of permission under Section 170 of the Motor Vehicles Act. The deceased was an ASI travelling in a police jeep and the averment in the petition was that the truck overtook the police jeep from behind from the wrong side and the driver of the truck applied the brake suddenly and consequently, the jeep dashed against the truck from behind. The driver of the jeep, who had given a complaint was not examined but PW6, who was occupant of the jeep supported this version. PW5, who was said to be another occupant FAO No.567 of 2005 -2- had a different version to give namely that the insured's truck was coming from the opposite direction and even when police jeep was going on the side of the road, the truck had come to the wrong side of the road and dashed against the jeep. The petition had been filed under Section 166 and 163-A of the Motor Vehicles Act but the manner in which the parties had adduced evidence, it is clear that the claimants were pursuing their remedy on the premise that there had been a negligent driving of the driver of the truck. During the course of trial, the driver of the truck had been given up and on the basis of evidence, the Tribunal found that the driver of the truck alone had been negligent. 2. Learned counsel appearing for the insurance company points out that there was no consistent case on the side of the claimants and points out to the brazen contradiction between the versions of PW5 and PW6 about how the accident took place. The contention of the learned counsel is that they had filed a petition under Section 170 of the Motor Vehicles Act and the insurance company had also sought for summoning the driver but such opportunity was not given and the petition under Section 170 of the Motor Vehicles Act itself was allowed on the same day when the judgment in the case was also pronounced. The counsel would point out that it was really a case of collusion and even in the absence of evidence of the driver of the jeep, the Tribunal ought not to have found that the driver of the truck alone was responsible especially when the accident in the manner set out in the petition was to the effect that the police jeep dashed against the truck from behind. The Tribunal had reasoned FAO No.567 of 2005 -3- that the insurance company had been given several opportunities to summon the driver of the truck but it had not taken any step but I have seen the original records and I find that the steps had been taken to summon the driver of the truck Rajbir Singh but he remained unserved on the ground that he was not residing at the given address. At the subsequent hearing, the insurance company had sought for details from the claimants themselves and when the counsel for the claimants contended that the owner and the insurance company itself could ascertain the address, the Tribunal had given a last opportunity for service of summon on 20.07.2004. On the subsequent hearing on 16.08.2004, the clerk of the insurance company is reported to have stated that the insurance company was not able to verify that the service had been effected and on 30.08.2004, the Tribunal's finding was that the summons are still not been served, closed the evidence and refused the plea for adjournment made at the instance of the insurer. 3. The application under Section 170 of the Motor Vehicles Act itself was disposed of only on 16.10.2004 on the same day when the award had been passed against the insurance company. The order under Section 170 of the Motor Vehilces Act records the fact that the insurance company had at all times been permitted to join issues on negligence even without allowing the petition and that it was, therefore, a fate accompli of a permission being granted at the trial in so far as the insurer draw the benefit of cross-examination of witness on the issue of negligence as well. The Tribunal allowed the application under Section 170 of the Motor Vehilces Act on the same FAO No.567 of 2005 -4- day when the award was passed. 4. I do not think any prejudice was caused to the insurer by allowing the application under Section 170 of the Motor Vehilces Act on the same day. In the manner in which the accident is reported to have taken place by the police jeep dashing against the truck from behind, I cannot take that only the truck driver was responsible for the accident. Even a plea that only the truck driver was challaned and that the driver of the jeep had not been proceeded against does not cut the ice since the deceased was a police personnel and the complainant himself was the driver of the jeep and a member of the police party. It cannot be expected under the circumstances that any action would have been taken by the police against themselves. I am not prepared to say that this is a rule of thumb but I cannot discard a reality that in a case of collision between two vehicles and in a case where the claimants had opted even to give up the driver of the truck, they were definitely not adopting a course which helped the Court to give a fair conclusion on the issue of adjournment on negligence of the respective drivers of the vehicles or to even held that it was only the driver of the truck who was responsible for the accident. I will place the responsibility for the accident equally on both the driver of the insured's vehicle and the driver of the police jeep. 5. The quantum of compensation itself cannot be a point of ground of appeal for the insurer. I do not propose to go into it, for the awarded amount had been very modest and it did not even take into account a possibility of propsect of increase of salary or did not FAO No.567 of 2005 -5- even adopt the multiplier as suggested by the decision of the Hon'ble Supreme Court in Sarla Verma Vs. Delhi Transport Corporation 2009(6) SCC 121. The claimants are not themselves in appeal seeking for any challenge on quantum and any modification on the issue of quantum. The modification that I would make would be to apportion the liability of the payment of compensation between the insurer of the truck and the owner of the jeep, which was the State of Haryana and the right of enforcement would be available for the claimants jointly and severely against the insurer and the owner of the truck and the jeep respectively. 6. The appeal is disposed of with the above modification. (K. KANNAN) JUDGE November 30, 2010 Pankaj*