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2004 DIGILAW 234 (HP)

NATIONAL INSURANCE CO. LTD. v. SOMA RANI

2004-09-22

V.K.GUPTA

body2004
JUDGMENT V.K. Gupta, C.J. (Oral): By this common judgment, all the three appeals are being disposed of together. 2. Mrs. Devyani Sharma, learned Counsel appearing for the appellant-Insurance Company has challenged the judgment and award dated 11th October, 1993 passed in three claim petitions (being MAC Petition No. 10-NL/2 of 1992, MAC Petition No. 9-NL/2 of 1992 and MAC Petition No. 12-NL/2 of 1992) whereby the learned Motor Accidents Claims Tribunal-ll, Solan camp at Nalagarh has passed three Awards in favour of the claimants in these three claim petitions, who are respondents in these three appeals filed by the aforesiad Insurer. The judgment and awards have been assailed on two grounds by the appellant in these three appeals. 3. According to Mrs. Sharma, the impugned judgment and awards suffer on account of the fact that Charan Singh, who was alleged to be driving the vehicle at the time of the accident had during the course of an in-house Investigation by the appellant stated that he was not driving the vehicle in question and that the vehicle in fact was being driven by one Babla son of Sarvan Singh. In support of this contention, Mrs. Sharma submits that the appellant-Insurer has filed CMP No. 110 of. 1994 in this Court under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence. The appellant has also filed CMP No. 111 of 1994 under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement to the aforesaid effect. Very frankly and fairly Mrs. Sharma has submitted that the fate of the aforesaid submission would depend upon on the result of the aforesaid two CMPs because unless and until this Court permits the appellant to adduce additional evidence, after permitting the appellant to amend the written statement to the aforesaid effect about Charan Singh not driving the vehicle and Babla driving the vehicle, the aforesaid fact cannot be allowed to be brought on record. 4. The second ground of attack is that the Tribunal granted higher amount of compensation in all the three cases and the compensation amount deserves to be suitably reduced. 5. 4. The second ground of attack is that the Tribunal granted higher amount of compensation in all the three cases and the compensation amount deserves to be suitably reduced. 5. In so far as the first ground of attack is concerned, I must say that the appellant has made a clumsy attempt in introducing an untenable defence at the appellate stage of these cases which is to the effect that the vehicle was not being driven by Charan Singh at the time of the accident, and that it was being driven by one Babla and this new fact is being attempted to be introduced only with a view to establishing a new case that the driver did not possess a valid driving licence. I have before me in the original record of the Tribunal the sworn testimony of (Charan Singh recorded on 13th September, 1993 in which he clearly states that on 26th April, 1992, he was driving the vehicle in question and when he started from Nalagarh for Ropar at 7.30 p.m. and had reached near Agro Factory Rajpura, the accident had occurred with the Motorcycle. For ready reference, the examination-in-chief part of Charan Singhs aforesaid statement is reproduced herein below because it is only this part of the aforesaid testimony which would establish clearly Charan Singhs version as stated on oath:- "On 26.4.1992, I was driving truck No. HIA 7177. I started from Nalagarh for Ropar at 7.30 p.m. When I reached near Agro Factory, Rajpura, 5/6 Rehra (mule Carts) were seen going ahead of my truck. A motorcycle came from the opposite direction at a fast speed. The speed of my truck was slow because mules cart were going ahead of me. I tender in evidence a true copy of Ex. R-1. The original licence has been impounded by the police per receipt Ex. R.2 (copy)." 6. A motorcycle came from the opposite direction at a fast speed. The speed of my truck was slow because mules cart were going ahead of me. I tender in evidence a true copy of Ex. R-1. The original licence has been impounded by the police per receipt Ex. R.2 (copy)." 6. Through the medium of the aforesaid CM.P. being CMP No. 110 of 1994, the appellant wants this Court to replace the aforesaid sworn testimony of Charan Singh by his so-called latter testimony and the ground given is that the so called investigator of the appellant in the appellants in-house Investigation had submitted his report on 26th September, 1993 but the factum of his report was not known to the appellant and the delay was caused in its submission before the Tribunal and the Report thus could not be produced before the Tribunal prior to the delivery of the judgment by it on 11th October, 1993. In para 5 of the application the ground taken by the appellant is that Charan Singh made the aforesaid statement to the in-house Investigator on 22nd June, 1993. As has been noticed earlier in this judgment, Charan Singh had appeared as a witness (RW-2) for the respondents on 13th September, 1993 and despite the fact that almost three months prior to this date he had allegedly made a statement totally converse, yet he was not cross-examined by the appellant on the aforesaid aspect nor was he confronted with the aforesaid statement allegedly made by him before the in-house Investigator. The reason for the appellants failure to cross-examine Charan Singh on this ground is neither convicting nor plausible. 7. I have, therefore, no hesitation in holding that the aforesaid attempt made by the appellant is totally clumsy because the sworn testimony of Charan Singh recorded during the course of proceedings in the Tribunal cannot be dealt with so lightly or casually, especially when on the own showing of the appellant he had made a contrary statement well before Charan Singh had appeared in the court as a witness. Moreover, in a situation like the present one, this court cannot give any credence to the aforesaid assertion of the appellant that Charan Singh had appeared as a witness before an Investigator of the appellant during the course of in-house Investigation especially when the proceedings had been pending in the Tribunal for considerable long time. Moreover, in a situation like the present one, this court cannot give any credence to the aforesaid assertion of the appellant that Charan Singh had appeared as a witness before an Investigator of the appellant during the course of in-house Investigation especially when the proceedings had been pending in the Tribunal for considerable long time. This apart, the application is not accompanied by any copy of the Investigation report nor is it accompanied by any copy of the so called statement of Charan Singh allegedly recorded by the Investigator. 8. For the aforesaid reasons, therefore, I have no hesitation in disallowing both the aforesaid CMPs, being CMPs No. 110 and 111 of 1994. 9. In so far as the attack against the award relating to the quantum of compensation is concerned, by now it is a well established position of law that an Insurer cannot be permitted to challenge the award relating to the quantum of compensation unless the Tribunal had granted permission to the appellant-Insurer in terms of Section 170 of the Motor Vehicles Act, 1988. As is seen, in the present cases undoubtedly no such permission was granted by the Tribunal in favour of the appellant-Insurer. 10. For the aforesaid reasons, the appeals are dismissed, but without any order as to costs. 11. Whatever amounts the appellant has deposited in this Court and which are lying in this Court shall be disbursed to the complaints in terms of the awards. Cross Objections No. 322 o f 1994 12. Heard. Dismissed. CMPs No. 110 and 111 of 1994 in FAO (MVA) No. 68/1994. CMPs No. 85 and 86 of 1994 in FAO (MVA) No. 56/1994. CMPs No. 103 and 104 of 1994 in FAO (MVA) No. 63/1994. 13. In view of the dismissal of the appeals, all the applications shall stand disposed of.