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2005 DIGILAW 1304 (RAJ)

National Insurance Company Ltd. v. Om Prakash

2005-05-03

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This is an appeal filed by the National Insurance Company Limited against the award passed by the learned Motor Accident Claims Tribunal, Bayana on 10.07.2000 passed in Claim Case No. 110/95. 2. In this appeal filed by the Insurance Company, it has been submitted that the learned Tribunal erred in deciding Issue No. 1 relating to the genuineness of the driving licence of the driver Respondent No. 5 Gopal Lal. The submission of the learned Counsel for the appellant is that the alleged driving licence was a forged one as has been mentioned in the letter Exhibit A-2 received from the DTO Cuttack. It is further submitted that the learned Tribunal erred in rejecting the application filed by the company for sending Commissioner to record the statement of the licencing authority at Cuttack (Orissa). 3. Learned Counsel for the respondents claimants on the other hand has submitted that the alleged letter Exhibit A-2 is a photostat copy. The original of the same was in the power and possession of the appellant which has not been produced in the Court. In that view of the matter without having produced the original or having sought permission to read secondary evidence, the said letter by itself would not be admissible in evidence or sufficient to prove the case of the appellant. He further submits that the orders rejecting the application for sending the Commissioner to record the statement of DTO, Cuttack is concerned, the Insurance Company should have at least examined the so-called investigator of the company who investigated the matter and who came to the conclusion that the alleged driving licence of the Respondent No. 5 driver Gopal Lal was a forged one. He further submits that even on the record, there is no report of the investigator to show that the company appellant treated the licence of Gopal Lal to be a forged one. 4. I have given my anxious consideration to the rival submissions made by the parties. It was open to the Insurance Company in the first place to have examined the investigator to prima facie show that he had investigated the matter relating to this accident and more particularly with regard to the genuineness of the driving licence of the Respondent No. 5 driver Gopal Lal. It was open to the Insurance Company in the first place to have examined the investigator to prima facie show that he had investigated the matter relating to this accident and more particularly with regard to the genuineness of the driving licence of the Respondent No. 5 driver Gopal Lal. In the absence of evidence of the witness who was the investigator and in the absence of report of the investigator who conducted the investigation as is alleged to have been made to the company regarding the genuineness of the licence and the company having failed to bring on record the evidence which was in its power and possession, the company cannot be allowed to urge that the learned Tribunal committed an error in deciding the Issue No. 1. 5. It may further be mentioned here that the company has placed on record the Exhibit NA2 which is the report or the letter/report given by the investigator Shashikant Sharma who has stated therein that the licence of Gopal Lal has been renewed from the office of the DTO, Jhunjhunu (Raj) on 23.09.1994 and is valid upto 02.09.1997. In that view of the matter on the date of accident i.e., on 13.07.1995 in terms of the said document Exhibit NA2 Gopal Lal possessed a valid licence which the appellant failed to prove was a forged one. 6. So far as the letter which is alleged to have been written by the regional transport authority Cuttack is concerned, the same has not been exhibited which is available on record. This letter is alleged to have been written by the licencing authority at Cuttack. The original of which would be available with the official of the appellant company. Neither the original document nor any witness from the office of the company at Cuttack was produced by the appellant company to prove the same or tender it in evidence as such the company failed to lead the evidence which was in its power and possession and, therefore, cannot be allowed to be hear in this appeal that it was denied the opportunity lead the evidence. Neither the investigator nor the report of the investigator was produced, neither the official of the branch of the company at Cuttack who received the information from the office of the licence authority nor any witness from the licence authority Cuttack was produced which admittedly was in the power and possession of company. The company failed to discharge its onus and therefore, there is no error in the Judgment of the learned Tribunal with regard to the Issue No. 1. 7. The next submission of the learned Counsel for the appellant is that the learned Tribunal erred in deciding Issue No. 5 by awarding the amount on the basis of the multiplier of 17 in view of the fact that the deceased was an unmarried person. Suffice to say that the appellant company did not move any application before the Tribunal in terms of Section 170 of the Motor Vehicles Act, 1988 and, therefore, it cannot be allowed to challenge the quantum in this appeal. 8. Learned Counsel for the appellant has submitted that interest awarded in the Tribunal is on the higher side as the Tribunal has awarded the interest @ 12% p.a. 9. In the facts and circumstances of the case, it is hereby ordered that the claimant would be entitled to interest on the balance amount at the rate of 9% p.a. from the date of the application to the date of payment of 50% of the amount. The said amount of balance 50% be paid within three months from today. It is made clear that in case the said balance amount is not paid within three 3 months from today, the respondent claimant should be entitled to interest at the rate of 12% p.a. 10. In view of the aforesaid, there is no force in this appeal. This appeal is consequently dismissed subject to the above. In the facts and circumstances of the case there shall be no order as to costs.