FAO No.49 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.49 of 2011 Date of Decision : 06.01.2011 The New India Assurance Co. Ltd. .......Appellant Versus Suraj Mal & others .......Respondents CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. V Ramswaroop, Advocate, for the appellant. **** JITENDRA CHAUHAN, J. (ORAL) 1. The appellant, New India Assurance Co. Ltd. (for short, ‘the Insurance Company’), has preferred this appeal against the award dated 09.11.2010 (for short, ‘the impugned award’), passed by the learned Motor Accident Claims Tribunal, Hisar (for short, ‘the Tribunal’). 2. The brief facts of the case are that on 5.6.2007, Surya Kant, the deceased, and his uncle Rajender Singh, were going from Mirchpur (Hisar) to Gurgaon. They boarded a Maruti Van bearing No.HR-55E/9669 (hereinafter as ‘the offending vehicle), from the Bye Pass, Rohtak, which was being driven by Sonu Mandal, the driver. The deceased occupied front seat besides the driver while Rajender 1 FAO No.49 of 2011 Singh took the rear seat where one Devender and one woman were already sitting. When they crossed village Jakhoda while going to Bahadurgarh side, the offending vehicle rammed into the rear portion of a stationery container-trolla bearing No.HR-38J-2862, due to the rash and negligent driving by the driver-Sonu Mandal. Resultantly, all the occupants of the offending vehicle sustained injuries. Surya Kant succumbed to his injuries at the spot. However, the driver managed to escape from the spot. 3. Respondent No.3 (herein appellant) contested the petition, inter alia, on the ground that the claim petition was a result of collusion between the claimants and the respondents (driver and owner), for wrongful gains. It was contended that the driver of the offending vehicle was not holding valid and effective driving licence, the vehicle was being driven in violation of the insurance policy and that the claim petition is not maintainable against the Insurance Company. 4. From the pleadings of the parties, the following issues were framed:- (1) Whether accident resulting in death to Surya Kant took place due to rash and negligent driving of offending vehicle bearing registration No.HR-55E/9669 driven by respondent No.1 as alleged ? OPP (2) If issue no.1 is proved, whether the petitioners are entitled to compensation, if so, to what amount and from whom ? OPP 2 FAO No.49 of 2011 (3) Whether the respondent No.1 was not holding a driving licence nor was under the employment of insured at the time of accident ? OPR2 (4) Relief. 5. The learned Tribunal decided issues No.1 and 2 in favour of the claimants and against the respondents. Issues No.2 & 3 were decided in favour of the claimants and the respondents were held liable to pay compensation to the claimants jointly and severally. While awarding compensation, the learned Tribunal assessed the loss as `14,45,000/- on account of death of Surya Kant. Interest @ 6% on the amount of award was also granted. 6. Shri V Ramswaroop, counsel for the appellant submits that the claim petition is bad for non-joinder of parties as the claimants had not impleaded the driver and owner of stationary trolla No.HR- 38J-2862 with which the offending vehicle struck. Learned counsel further submits that there is collusion of the complainant with driver and owner, so this claim petition is mala fide. The learned counsel further submits that no reasonable opportunity was afforded to lead evidence. Lastly, the learned counsel submits that there is violation of the terms and conditions of the insurance policy, so the appellant- Company is not liable to pay the awarded amount. Learned counsel cites Syed Basheer Ahmed Vs. Mohammed Jameel, 2009(2) SCC 225. 7. I have heard learned counsel for the appellant and perused the impugned award with his able assistance. 3 FAO No.49 of 2011 8. From the careful perusal of the impugned award, it is clear that Surya Kant deceased died due to rash and negligent act of driving Maruti Van by Sonu Mandal, the driver. It is also proved from unrebutted evidence that the age of the deceased was 23 years and he was a Lecturer of Physics. Salary Certificate, Ex.P1, and Appointment Letter, Ex.P2, were placed on record. Findings of issues No.1 and 2 are well reasoned, based on the documentary evidence and do not call for any interference. 9. The evidence adduced by the claimants is unrebutted. None of the respondents had led any evidence. Mere assertions in the written-statement cannot take place of proof. The rule of pleadings is that every pleading should be proved by cogent evidence. But this is a case of no evidence of respondents. The learned Tribunal cannot base its findings on mere assertions, surmises and conjectures. No violation of the terms and conditions of the Insurance Policy is proved by the Insurance Company. No evidence has been led by the appellant to the effect that the driver was not holding a valid driving licence nor was under the employment of insured at the time of accident, though the onus to prove this fact (issue No.3) was upon the Insurance Company. 10. The appellant-Insurance Company has not taken the leave of the Court at any stage under Section 170 of the Motor Vehicles Act to contest the claim petition on the grounds available to driver and owner. So, when the Insurance Company lost this right to contest it on merits, it cannot challenge the award of the learned Tribunal in its entirety, in this appeal. 4 FAO No.49 of 2011 11. So far as the ground of non-joinder of driver and owner of stationary trolla is concerned, it is also not available to the appellant, keeping in view the findings of the learned Tribunal on Issue No.1 holding that the accident occurred on account of rash and negligent driving of the offending vehicle by Sonu Mandal, the driver. 12. The learned counsel could not point out any evidence to prove the collusion between the claimants on one side and driver and owner on the other side. No doubt, the impugned award shows that they were proceeded against ex parte, but the owner and driver have also been held liable to pay the compensation to the claimants jointly and severally. They have not been exonerated by the learned Tribunal. 13. The amount of compensation awarded to the claimants is very just and reasonable keeping in view the age, income and future prospects of the deceased. On the question of deduction on account of personal expenses by the deceased, there is no set formula which could be applied in every case to determine as to what should be the deduction on this account. The said deduction would depend upon the facts and circumstances of each case. It was held in Syed Basheer Ahmad’s case (Supra) as under:- 27. On the question of deduction on account of personal expenses by the deceased, there is no set formula which could be applied in every case to determine as to what should be the deduction on this account. The contention that deduction on that count cannot exceed one-third on the ground that there is some 5 FAO No.49 of 2011 statutory recognition in the Second Schedule to the Act for such deduction, is untenable. The said deduction would depend upon the facts and circumstances of each case.” 14. Resultantly, this Court does not find any merit in this appeal, which is dismissed in limine. ( JITENDRA CHAUHAN ) 06.01.2011 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No 6