Madhya Pradesh High Court
National Insurance Co. Ltd. vs Mainabai And Ors. on 7 April, 1999
Equivalent citations: I(2000)ACC335, 2001ACJ1921
Author: Shambhoo Singh
Bench: Shambhoo Singh
JUDGMENT Shambhoo Singh, J.
1. This judgment shall govern the disposal of M.A. Nos. 699 of 1997 (Claim Case No. 160 of 1994), 700 of 1997 (Claim Case No. 10 of 1997), 701 of 1997 (Claim Case No. 158 of 1994), 702 of 1997 (Claim Case No. 159 of 1994), 709 of 1997 (Claim Case No. 157 of 1994), C. Rev. Nos. 961 of 1997 (Claim Case No. 12 of 1997), 963 of 1997 (Claim Case No. 9 of 1997) and 965 of 1997 (Claim Case No. 11 of 1997) filed by the insurance company as they arise out of the same accident and common question of law and facts arise therein.
2. Facts leading to these misc. appeals and civil revisions are that on 2.4.92 Asha, her husband Natwarlal, Vimla, Baby Pinki, Radheshyam, Kanhaiyalal, Bharatsingh and others were going from Neemuch to Mandsaur travelling in jeep No. MPM 1635. Near village Thadod, truck No. CPV 5577 belonging to non-applicant Sudha-bai, driven by non-applicant Ranveersingh and insured with the appellant came from opposite direction in a rash and negligent manner at a high speed and dashed against the jeep as a result of which Asha, Natwarlal, Vimla and Baby Pinki died and other persons got injured. The injured and the legal representatives of the deceased persons filed Claim Case Nos. 160 of 1994, 10 of 1997, 158 of 1994, 159 of 1994, 157 of 1994, 12 of 1997, 9 of 1997 and 11 of 1997 for grant of compensation. The respondents/non-applicant owner and the appellant/non-applicant insurance company resisted the claim and averred that the accident occurred due to rash and negligent driving of the jeep. The appellant, inter alia, also pleaded that the driver of the truck had no valid and effective licence on the date of accident and thereby breach of the terms and conditions of the insurance policy was committed, therefore, it was not liable to pay compensation. In any case, the liability of the truck owner would not exceed 50 per cent. The Tribunal after appreciation of evidence held that the accident occurred due to rash and negligent driving of truck No. CPV 5577 by respondent/non-applicant driver. It also held that the appellant failed to prove that the driver had no valid licence and awarded compensation. The appellant filed M.A. Nos. 699 of 1997, 700 of 1997, 701 of 1997, 702 of 1997 and 709 of 1997 and Civil Revision Nos. 961 of 1997, 963 of 1997 and 965 of 1997 (where amount was not awarded) against the awards passed by the Tribunal. The claimants also filed cross-objections.
3. Mr. H.G. Shukla, learned counsel for the appellant insurance company, argued that the learned Tribunal committed grave error in closing the evidence of the appellant insurance company on 12.5.1997. The appellant had paid process fee thrice as directed by the Tribunal. But it failed to get the summons served, therefore, the appellant could not be blamed for the absence of the witnesses. He contended that the appellant could not cause appearance of R.T.O., Jhansi before the Tribunal on its own. His presence could be procured only through Tribunal for which process fee was paid. He, therefore, prayed that all the cases be remanded to the Tribunal for giving appellant an opportunity of producing its witnesses. He further prayed that the Tribunal also fell in error in not consolidating all these cases as they arise out of the same accident. On the other hand, Mr. V.K. Jain, Mr. Sunil Jain and Mr. Chawla, learned counsel for the claimants, supported the order dated 12.5.1997.
4. Heard learned counsel and examined the record. It is true that the Tribunal had power to enforce the attendance of the witnesses under Section 169 of the Motor Vehicles Act. Though the appellant did not deposit expenses and only paid process fee for summoning of its witnesses on 7.2.97, 17.3.1997 and 25.4.1997 even then the Tribunal issued summons. But appellant took no further steps to seek assistance of the Tribunal to serve the summons on witnesses and to ensure whether these were served, not to speak of any effort made by it to request the Tribunal to resort to coercive process for summoning the witnesses. The appellant should have been keen, vigilant and prompt to procure the attendance of witnesses with the help of the Tribunal. After all, it was for the appellant to prove its case and it could not have expected the Tribunal to discharge the burden for it. It was the duty of the appellant to make repeated efforts to procure attendance of its witnesses. It did not pay for a separate process special nor it prayed for humdast summons. It is well settled that no duty or obligation is cast on the Tribunal to take upon itself the burden of ensuring attendance of witnesses of rival parties because it is for the parties to do so by seeking requisite assistance and aid from Tribunal and to prove their case and more so in claim cases, which deserve and demand expeditious and summary disposal.
5. In the present case, appellant company had failed to perform its role and to discharge its burden. It had remained content with deposit of process fee expecting Tribunal to do the rest for it. It had failed to follow-up service process and take any step for obtaining coercive process from Tribunal or for producing witnesses on its own. It has been made clear in Rule 117, Rules and Orders Civil (M.P. High Court) that if summons are not served or are not received back, the court is not bound to grant adjournments. Therefore, Tribunal order closing its evidence cannot be faulted, more so in an accident claim where claimants of accident victims are crying for relief. It must be borne in mind that in enforcement of welfare legislation, claimants have no resources and cannot be expected to contest protracted litigation for years on against powerful and resourceful insurance companies. That is why for prompt disposal of claim cases, the legislature empowered the Claims Tribunals under Section 169 of the Motor Vehicles Act to follow such summary procedure as it thinks fit.
6. Mr. Shukla, learned counsel, further submitted that the owner of the offending vehicle committed breach of the terms and conditions of the policy as the respondent driver Ranveersingh had no valid and effective licence on the date of accident, therefore, the insurance company was not liable to pay compensation.
7. It is settled that the onus of proving breach of terms and conditions of the policy lay on the appellant insurance company. In this case, the appellant examined Pramod Jhalani, Branch Manager, who deposed that R.T.O., Jhansi made endorsement on the letter Exh. D-3 that the non-applicant driver Ranveersingh was not issued the driving licence No. D/L No. R-1688/JHS/86. It is true that the endorsement on Exh. D-3 mentions that driving licence No. D/L No. R-1688/JHS/86 was not issued to Ranveersingh but as the Tribunal held, the appellant failed to prove this endorsement. It did not examine the officer who signed this endorsement nor it examined any person in whose presence this endorsement was signed. We find no reason to disagree with the learned Tribunal, Exh. D-3 is not a public document and it has to be proved in accordance with the provisions of the Evidence Act. This endorsement was not made in the presence of Pramod Jhalani. Under such circumstances, the Tribunal rightly held that it has not been proved that the licence of the non-applicant driver Ranveersingh was not genuine and was forged one. Even otherwise, if it is held that this licence was not issued to the non-applicant, even then the appellant could not escape the liability of paying compensation as the driver Ranveersingh had shown this licence to the owner and there was no reason for the owner to doubt the genuineness of the licence. It was not expected from the owner that he will get the licence verified before taking Ranveersingh in his employment. Even otherwise, if the licence was bogus, the appellant could recover the amount of compensation from the driver and owner but the claimants cannot be left remediless. We, therefore, hold that the Tribunal rightly held that the appellant failed to prove that the non-applicant driver Ranveersingh was not having valid and effective licence on the date of accident and the insurance company was liable to pay compensation to the claimants. We, therefore, dismiss all the appeals and revisions filed by the insurance company against the impugned awards.
8. Now we shall take up the cross-objections filed by the claimants.
Cross-objection in M.A. No. 702 of 1997 (Claim Case No. 159 of 1994)
9. The respondent-applicant Kanhaiya-lal had filed Claim Case No. 159 of 1994 seeking compensation of Rs. 2,15,000 for the injuries sustained by him in the accident. The Tribunal awarded him compensation of Rs. 13,000. It allowed Rs. 2,500 for treatment on the basis of the evidence of one Dr. S.K. Mehta who deposed that Kanhaiyalal had simple injuries and he could recover within 8-10 days and maximum Rs. 2,500 were required to be spent on his treatment. The Tribunal accepted the statement of Kanhaiyalal that he was earning Rs. 100 per day and could not work for 31/2 months and allowed Rs. 10,500 for loss of income. In our opinion, in view of the above evidence, the compensation of Rs. 13,000 cannot be said to be on lower side. This appears to be just and reasonable compensation. We, therefore, reject the cross-objection made by the claimant.
Cross-objection in M.A. No. 699 of 1997 (Claim Case No. 160 of 1994)
10. Applicant No. 1, the mother of the deceased Asha and applicant Nos. 2 and 3, the parents-in-law filed Claim Case No. 160 of 1994 seeking compensation of Rs. 6,00,000 for the death of Asha-bai. Mainabai deposed that her daughter Ashabai used to earn Rs. 1,000-1,200 per month. She used to pay her Rs. 400-500 every month when she came to Mandsaur. On the basis of this statement, the Tribunal held that due to the death of Ashabai, the claimant No. 1 Mainabai sustained loss of Rs. 400 per month and yearly Rs. 4,800 and taking into consideration the age of Mainabai which was 43 years, applied multiplier of 12 and worked out Rs. 57,600. It further allowed Rs. 5,000 for loss of love and affection and awarded Rs. 62,600 to Mainabai as compensation. In our opinion, this amount is just and reasonable compensation for the death of Asha and does not warrant interference, therefore, the cross-objections are dismissed.
Cross-objection in M.A. No. 709 of 1997 (Claim Case No. 157 of 1994)
11. The respondents-claimants, father and mother, filed Claim Case No. 157 of 1994 seeking total compensation of Rs. 13,90,000 for the death of their son Natwarlal in the accident. The Tribunal awarded compensation of Rs. 1,05,000. The claimants being dissatisfied filed cross-objections for enhancement of the compensation amount. The Tribunal had assessed daily earning of the deceased at Rs. 50 and yearly Rs. 18,000. Learned Tribunal keeping in view the fact that the deceased was married and had to maintain his own wife, determined that he was contributing 50 per cent of his income, i.e., Rs. 9,000 per year to his parents. The Tribunal taking into consideration the age of the father of the deceased Bhavarlal which was 53 years, selected multiplier of 10 and worked out Rs. 90,000. It allowed Rs. 10,000 for loss of love and affection and Rs. 5,000 for funeral expenses and awarded Rs. 1,05,000 as compensation. In our opinion, this amount does not appear to be on the lower side. It is true that Bhavarlal stated that his son was earning Rs. 4,000 per month by working on his (Bhavarlal) shoe-shop and used to spend Rs. 1,000 on himself and used to pay him Rs. 3,000 per month. But he admitted in cross-examination that he was earning Rs. 25-30 per day. On the basis of this evidence, the Tribunal rightly held that the deceased Natwarlal being young man must be earning Rs. 50 per day and must be contributing 50 per cent of his earning to his parents and spending the rest amount on himself and his wife. In view of the fact that the age of the mother which was 48 years and that of the father which was 53 years, the selection of multiplier of 10 cannot be said to be wrong. Under such circumstances, the amount of Rs. 1,05,000 appears to be just and reasonable and does not call for any interference. Hence, the cross-objections are dismissed.
Cross-objection in M.A. No. 700 of 1997 (Claim Case No. 10 of 1997)
12. The claimant Radheshyam filed Claim Case No. 10 of 1994 seeking compensation of Rs. 72,000 for the injuries sustained by him in the accident. The Tribunal held that the claimant remained admitted in Udaipur hospital for 7-8 days and awarded Rs. 5,000 for treatment, Rs. 2,000 for physical and mental pain and Rs. 3,000 for loss of income for two months at the rate of Rs. 50 per day and awarded compensation of Rs. 12,000 to the claimant. The claimant Radheshyam stated that he suffered injuries on his head and thumb. He stated that his one tooth was also broken. He further stated that he spent Rs. 35,000-40,000 on his treatment and Rs. 7,000-8,000 in staying at Udaipur. But the claimants' witness Dr. S.K. Mehta stated that Radheshyam had one lacerated wound on his head and one lacerated wound on right thumb and he must have spent Rs. 3,000-4,000 on his treatment. Dr. Mehta did not depose that one tooth of the claimant was broken. In view of the evidence of Dr. Mehta, it cannot be said that the amount of compensation of Rs. 12,000 is on lower side. We, therefore, dismiss the cross-objections.
13. In the result, all the appeals and revisions filed by the appellant insurance company and cross-objections by the claimants are dismissed. No order as to costs.