FAO No.2846 of 2011 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2846 of 2011 (O&M) Date of Decision. 04.04.2011 The New India Assurance Company Ltd., Regional Office, SCO No.36-37, Sector 17-A, Chandigarh through its Manager (Legal) ......Appellant Versus Nirmala Devi wife of Shri Makhan Lal and others .....Respondents Present: Mr. V. Ramswaroop, Advocate for the appellant. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J.(ORAL) 1. The insurance company is challenging the award on the ground that the driver had not been named in the petition and the owner had remained ex parte. The driver is always not a necessary party but only a proper party and ideally the driver's name requires to be given so that the driver's evidence become available if there is a denial of rashness and negligence on the part of the driver. The insurance company, which would be interested in taking up defence denying the claim of the claimants shall only take the responsibility for securing the presence of the driver to give appropriate evidence before the Tribunal. In a case where the insurance company does not take up a plea of collusion of the claim by the claimants with the owner and driver then it shall be impermissible for an insurance company to deny that there had been any FAO No.2846 of 2011 (O&M) -2- rashness and negligence on the part of the driver. The non-involvement of the vehicle is invariably an issue of fact which has to be established and in this case, the Court rejected the contention of the insurance company that by the only fact that FIR had not been registered, the accident could not have been true. On the other hand before the Tribunal suggestion to PW2 in the cross-examination by the counsel appearing for the insurance company was that the accident had taken place by the negligence of the deceased and not on account of negligence of the driver of the insured. This suggestion, the Tribunal reasoned, was sufficient to infer that the insurance company must not try to take up a plea of non-involvement of vehicle in the accident. 2. I do not find any error in the approach of the Tribunal in its assessment that the vehicle had been involved in the accident and also does not call for interfering with the inference that the respondents were liable for the accident. 3. As regards the quantum, the Tribunal has assessed Rs.2,20,000/- for death of a male aged about 20 years when the claimants were parents. The assessment of compensation at Rs.2.20 lacs again is very modest and would not require any re-assessment in the Appellate Court. In any event, even the issue of quantum is irrelevant for the appeal is at the instance of the insurance company where the insurer has no right of defences on all grounds. 4. The award is affirmed and the appeal is dismissed. (K. KANNAN) JUDGE April 04, 2011 Pankaj*