,.^.^" ^ ^a^ lltf^S ^^^'-" '^ ^; /./ ^^;-~ ^ /-^l </ i.'aa HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 723/2003 APPBLLANT RESPONDENTS National Insurance Company Ltd. Versus Ku. Paruieshwari and others APPELLANTS RESSPONDENTS MANo. 935/2003 Ku. Panneshwari and others Versus Umeshrai and ofhers AWARD For consideration 2 c? -6-20 11 Hon?ble Shri Raieev Gupta^C.J. <^^T^=^- sd/- Chief Justice Sd/- N. K. Agarwal Judge Postfor: l-76-2011 Sd/- N. K. Agarwa! Judge So.G-^oTi l^— ,y!£-^..^.;\ .9 HIGH COURT OF CHHATTISGARH AT BILASPUjfc APPELLANTS Defesxdaxat No. 3 f • 4- RESPONDENTS Clainaant No._l^ RESPONDENTS Claimant Np. 2 RESPONDENTS Claimant No. 3 2. 3. RESPONDENTS 4. Claimant No. 4 RESPONDBNTS 5. Defendant Np. 1 RESPONDENTS Defendant No. 2 MANo,723/2003 National Insurance Coiupaiiy Ltd., Raipur, through Branch Manager, Bilaspur (CG) Versus . Ku. Parmeshwari, 2 years, D/o L:ate Shyam Ram Nirmalkar Likeshwar Kumar, 5 years, S/o Late Shyaia Rani Nirmalkar Ku. Pemin, 14 years D/o Late Shyam Ram Nirmalkar No. 1 to 3 are minor, fhrough their Natural guardian- Mofher Dasoda Bai Nirmalkar, Wd/o lateShyam Ram Nirmalkar Dasoda Bai Niniialkar, 37 years, Wd/o. Late Shyam Ram Nirmalkar, House wife R/o village - Kaiipa, Post Birkoni, P.S. Tumgaon, Distt. Mahasamund (CG) Uinesh Rai, 32 years, S/o Jharilal, R/o Sheelafhpur, P.S. Dai'iapar, Distt. Chapra, Bihar, other address- under employment of Basant Kumar Behati, Director, M.S. Jaoauna Transport Corporation 11, Polac Storeet, Calcutta Driver Basant Kumar Behati,50 years, S/o Not known, Driver, M,S. Mamuna Transport Corporation Ltd. Polac Street, Calcutta-1 Owner APPELLANTS CLAIMANTS MA No. 935/2003 1. Ku. Parmeshwari D/o. Shyaim'am Nirmalkar aged about 2 yemts 2. Likeshwar Kimiar S/o. Late Shyamram Nirraalkar aged 5 years, Caste Kamar 3. Ku. Pemin D/o Late Shyamram Nirmalkar, aged 14 years 4. Dashoda Bai Nmnalkar W/o Late Shyamram Ninnalkar aged 37 years, House wife, appellant No. 1, 2 and 3 ai'e represented her by legal ^" l^ RESPONDEHTS guardian motlier Dashodabai AU are resident ofvill.- Vampa, Post Kirkoni, P.S. TLimgaon & Distt. Mahasamund Versus 1. Umeshral S/o Jharilal aged about 32 years, Driver, R/o SitalpLir, P.S. Dariyapur, Distt. Chhapara (Bihar), other address- C/o Basant KLunar Behati, Director- M.S. Jamuna Transport Corporation -2, Pollok Street Kalkatta- 700001 2. Basant KuiBar Behati S/o Unknown aged 50 years, Director & Vehicle owner, R/o M:.S. Jamuna Transport, Corporation Ltd. _ II, Polak Strite, Kalcutta-703001 3. The National InsLiraiice Co. Ltd. Divisional Office, Mobin Mahal, G.E. Road, Distt- Raipur (CG) Misc. Appeals under section 173 of the Motor Vehicles Act, 1988 DBs Ho^Me Mr. RaLeevG^pta^CJ^^^ Hon'ble Mr. N.K. AsarwaL^J Present ; 4 Shri B.N. Naiide, Advocate, for the National Insui-ance Coiapany Limited. Shii Shivendu Pandya, Advocate, for the Claimants. None appears for ofher respondents AWARD (Passed on ^ /^g/20Ul- Per N.K. Afiansal, J 1. Two appeals M.A. No. 723/2003 and M.A. No. 935/2003 have been preferred against the award dated 28-6-2003 passed hy the Ist Additional Motor Accident Claims Tribunal, Mahasainund tn Claim Case No.30/2001, one by the National InsLiraiice Company Limited challengiiig its liability for payment of compensation, the other is by -the claimants seekmg enhaiicement in the amount awarded by ^ the Tribunal. Therefore, both the appeals are disposed of by the common award. On 25-7-2001, Shyam Ram Nirmalkar, driver ofbus bearmg registration No. MBS/1493 was dashed by truck bearing rcgistration No. A.S./01/6116 beiag driven by driver Umesh Rai in a rash and negligent manner as a result of which, Shyani Lal Nirmalkar died on spot. As agaiust Rs. 19,80,000/- claimed by legal representatives of deceased Shyam Lal Nirmalkar as compensation for fhe death of theii' bread eamer by fiUng application uader Section 166 of fhe Motor Vehicles Act, (briefly the Act% leamed Tribunal has awarded a total sum ofRs. 3,91,000/- along with interest at fhe rate of 9% per annum from the date of application till its actual payment^ holding the National Insurance Company Limited jointly and severely liable for its paymeut to fhe claimaiits, aloug with driver aiid owner of the ofl<auding truck. In order to examine fhe correctness or otlierwise of the amouut of compensation awarded by leamed Tribunal, we have perused fhe record of the Tribunal. Leamed Tribunal on a close scrutiny of the evidence led assessed yearly tncoiue of the deceased as Rs. 36,000/-, After deducting l/3rd of it towards personal ond livtng expenses of the deceased and applying multiplier of 16 looking to the age of fhe deceased as 40 years, assessed the amount of compensation as Rs. 3,84,000/-. Learned TribLinal has further awarded a sum of Rs. 7,000/- on ^.^ 4 oUier heads and thus awarded a total sum ofRs. 3,91,000/- as compensation to the claimants. 6. In the absence ofcogent and clinching evidence, the jBnding regarding yeariy tncome of the deceased cannot be found fault. with. Leamed Tribunal has also not erred in deducting usual l/3rd of the incbme of the deceased towards his personal and living expenses. The deceased was of the age of 40 years. Looking to the dicta ofjudgment ofSupreme Court in case of Sarla VeiTna (Smt) and others -v- Delhi Trm^spon CoTporation and another reported in 2009 (6) SCC 121 wherem multlplier of 15 is prescribed for the age group of 36 to 40 years, multipMer of 16 applied by leamed Tribunal appears t.o be somewhat on higher side. Consideiing every aspect of the matter; in our oRJ.nion, fhe amount awarded is just and reasonable and there is no scope for enhancement< 7. The core question therefore involved for decision making in these appeals is whether in the facts and circumstaiices of the case, leamed Tribunal has erred in fastemng liability of payment of compensation upon the Insurance Company. 8. The main contention raised by Shri B.N. Nande, learned couiisel for the Insurance Company is, leamed Tribi-mal has grossly erred in rejecting application of Insiiraiice Company filed under Order 26 Rule 4 of Code of Civil ProcedLire for issuance of commission for examination of officer/employee of D.T.0., Kamrup, Gauhati (West Zone) as according to him, the licence of fhe truck driver on investigation was found fake and by rejecting fhe application, learned 9. Tribunal has depnved the appeUant/Insurance Company to prove its defence azid the award impugned deserves to be set aside on fhis count alone. In order to appreciate the contention raised by Shri Nande, it would be appropriate to reproduce Order 16 Rule 19 and Order 26 Rule 4 of the Code of Civil Procedure which read thus: "Order-16 Rule 19- No witness to be ordered to attead in person usiless residesst within ceytaiB Umits No one shall be ordered to attend in person to give evidence unless he resides— (a) within the local lunits of fhe Court's ordinary originaljurisdiction, or (b) without such Umits but at a place less than one hundred or (where there is railway or steamer communication or other established public conveyance for five-sbcths of fhe distance between the place where he resides hnd the place where the Court is situate) less than five hundred kilometers distance from tlie Court house: Provided that where transport by air is available between the two places mentioned in this rule aiid the witness is paid tlie fare by air, he may be ordered to attend in person. "Order 26 Rule 4- Persons for whose examination commission may issue (1) Any Court may in any suit issue a commisslon for the examination on inten'-ogatories or otherwise of- (a) aiiy person residenf beyond the local limits of its jurisdiction; (b) any person who is about to leave such limits before fhe date on which he is required to be exaniined in Court; and (c) any person m the service of the Government who cannot in the opinion of the Court, atteud without detriment to fhe public service: •^:".•••'.•;.'>.. ;^ 6 ./, Provided that where, under riile 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in fhe interests ofjustice: Provided further that a coniniission for exanaination of such person on interrogatories shall not be issued unless the CoLirt, for reasons to be recorded, thmks it necessai^' so to do. (2) Such coimnission may be issued to any Coiirt, not being a High Coui't, within the local limits of whose jurisdiction such person resides, or to any pleacler or other person whom fhe Court issuing the commission may appoint. (3) The Court on issuing any commission may this rule shall direct whetlier the commission shall be retumed to itselfor to any subordinate Court," 10. Under Rule 19 of Order 16 of C.P.C. no one shall be ordered to attend a Court in person to give evidence unless he resides wifhin the local liniits of flie Coiirt's original jurisdiction. Under proviso to Rule 4 of Order 26 wher^ under Rule 19 of Order 16, a person cannot be ordered to attend a court in person, a commission shaU be issued for his exaiaination if his evidence is considered uecessar^7 in the interest ofjustice. 11. Now reverting to the facts of the present case, it is not in dispute that the Insurance Company has denied its Uability in its written stetement on fhe ground, the driver of the truck was not possessing valid and efiective driving Ucence to drive the truck at the time of accident inasmuch as the driving Ucence No. 78212/1987/GHT said to be issued in his favoLir on investigation was found fake and fherefore applied for issuance of commission for examination of /• 12. 13. 14. offlcer/ employee of District Transport Ofiicer, Kami-up,' Gauhati (West Zone) residing outside the Court's jurisdiction. Leamed Tribunal has also not rejected application of Insuraiice Company on fhe ground fhat the evidence is not essential in the interest of justice, fherefore, leamed Tribunal went wrong in rejecting application inasuiuch under Order 26 Rule 4 of C.P.Q it is mandatory to issue commission for examination as fhe witness was residmg outside fhe Court's jurisdiction and cannot be ordered to attend the Court in person as per Order 16 Rule 19 of C.P.C. Further under Section 149 of the Act, the Insurance Company is entitied to defend an action on the ground that the owner of the vehicle in breach of specified conditions of policy allowed the driver to drive the vehicle who is not duly licensed or was not possessing valid and effective drivmg licence at fhe time of accident. It is trite law fhat the Insm'ance Company must have Lmder the law the opporturdty to substantiate its contention that the licence ofthe respondent/driver is forged and fabricated. Therefore, leamed Tribunal has erred in rejecting application of the Insurance Company for examination of the officer/ employee of the D.T.O., Kamrup, Gauhati (West Zone) on coinmission. For the reasons mentioned heretnabove, the appeal preferred by the claimants bearing M.A. No. 935/2003 is dismissed. The appeal preferred by the NaUonal Insurance Company Limited bearing M.A. No. 723/2003 is allowed in 15. part. The part of the award impugned whereby liabilit5.' of payment of compensation has been fastened upon the appellant/Insurance Company is set aside. The matter is remitted back to the Tribunal to first decide the application for issuance of Commission filed by fhe appeUant/ Insurmice Coinpany afresh tn the light of the observations made hereinabove and after affordtng opportunity to lead additional evidence, if any, to fhe parties to proceed to decide the liability of fhe Insurance Company m accordaiice with law. Rest portion of the award shall remain intact. The claimants are not required to refijnd the amoLmt already received by them. Leamed Tribunal shall pass appropriate order wifh regard to adjustment of the above amount at the time of passing of the award. 16. Therecord oftheTribunalbe sentbackforthwith. , 17. Parties are directed to appear before the concemed Tribunal at Mahasamund on 1-8-2011. 18. No order as to costs. Sd/- Chief Justice Sd/- N. K. Agarwal Judge ^/