1. Heard Sri Lalit Kishore Pandey, learned counsel appearing on behalf of Anil Kumar Tuli, owner of the offending vehicle and Dinesh Kumar, driver of the offending vehicle, Sri Ajay Singh, learned counsel for the Claimant and Sri Ashish Jaiswal, Advocate holding brief of Sri Surendra Pal Singh, learned counsel for the National Insurance Company Limited (''Insurance Company').
2. The appeals mentioned above, have been filed under Section 173 of the Motor Vehicles Act, 1988 (''the Act'), against the judgment and award dated 25.04.2014 passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court No. 10, Unnao in Motor Accident Claim Petition No. 100 of 2012, Harish Chandra Sharma and another v. Anil Kumar Tuli and another, whereby a sum of Rs 3,59,000/- alongwith interest at the rate of 7.5% has been awarded to the claimants. The Insurance Company has been directed to pay the compensation to the claimants and recover the same from the owner of the offending vehicle.
3. Since both the appeals arise out of a common judgment and award, they were heard together and are being disposed of by a common order.
4. The facts in brief are that Harish Chandra Sharma (who died during the pendency of the claim petition) and Smt. Saroj Sharma filed a claim petition alleging therein that on 04.10.2011, at about 9 p.m., their son Vishnu Sharma @ Gopal was riding his bicycle to his factory to attend his night duty. In front of Annapurna Temple, near the bypass on the Lucknow-Kanpur Highway, a Santro Car bearing no. UP 14 W 2706 was being driven rashly and negligently and hit Harish Chandra's bicycle. Vishnu Sharma sustained grievous injuries. He was taken to the District Hospital, Sadar, Unnao where he was declared dead. It was stated that the deceased was a bachelor of about 28 years of age, and used to earn a sum of Rs. 8,000/- per month. A sum of Rs. 16,10,000/- was claimed towards compensation.
5. Anil Kumar Tuli and Dinesh Kumar filed a joint written statement denying the factum of accident. It was alleged that the offending vehicle was insured with the T.P. Nagar, Kanpur branch of the Insurance Company for the period 06.09.2011 to 05.09.2012. The Insurance Company in its separate written statement denied their liability. On the pleading of the parties the following issues were framed:-
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6. The parties led oral and documentary evidence in support of their respective cases. On behalf of the claimants Smt. Saroj Sharma was examined as PW-1, Vikas Singh as PW-2 and Anurag Singh as PW-3. On behalf of the respondent, Dinesh Kumar the driver, was examined as DW-1 and on behalf of the National Insurance Company, Sushil Kumar Srivastava, was examined as DW-2.
7. The Tribunal after examining the oral and documentary evidence on record decided Issue Nos. 1 and 2 in the affirmative.
8. With regard to Issue No. 3, the Tribunal came to the conclusion that the cover note filed by the owner of the offending vehicle was a forged document. The offending vehicle was not insured with the Insurance Company and the vehicle was being driven in violation of the traffic rules. In the absence of any documentary proof, the Tribunal took the monthly income of the deceased as Rs. 3,000/-, assessed the age of the deceased as 28 years, made deduction of one-half of the income towards his personal living expenses and thereafter applied the multiplier of 18. The Tribunal further awarded a sum of Rs. 10,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses and concluded that the claimants were entitled to Rs. 3,59,000/- along with interest @ 7.5% from the date of filing of the petition till the time of its actual payment.
FIRST APPEAL NO. 852 OF 2014.
9. Aggrieved by the judgment and award mentioned above, Anil Kumar Tuli and Dinesh Kumar have preferred the First Appeal No. 852 of 2014.
10. Sri Lalit Kishore Pandey has submitted that the car in question was not involved in the accident. In support of this contention, he has mainly relied upon the statement made by Dinesh Kumar as DW-1, wherein he has denied the involvement of the Santro Car bearing no. UP 14 W 2706 in the accident in question.
11. Learned counsel has further submitted that at the time of the accident, the offending vehicle was duly insured with the Insurance Company and was plying in accordance with the terms and conditions of the insurance policy. There was no breach of the terms and conditions of the policy and the liability, if any, is that of the insurer. It has also been submitted that the cover note was issued by the T.P. Nagar, Kanpur branch of the Insurance Company and it was not the duty of the Appellant to verify as to whether the cover note was fake or not. Sri Lalit Kishore Pandey has further submitted that in case of death of a bachelor, the multiplier should be on the basis of the age of the parents and not on the basis of the age of the deceased.
12. Sri Ashish Jaiswal appearing on behalf of the Insurance Company and Sri Ajay Singh, learned counsel for the Claimant have supported the impugned judgment and award.
13. As far as the issue of the involvement of the vehicle in the accident is concerned, it is to be noted that the offending car was seized by the police immediately after the accident from the accident spot. Further, on the basis of a complaint lodged by the father of the deceased with the police regarding the said accident, an FIR was registered for the offences under Section 279 and 304-A of IPC. Eventually, after due investigation a charge-sheet was filed for the said offences against Dinesh Kumar. Vikas Singh (PW-1) and Anurag Singh (PW-2) in their examination-in-chief categorically stated that they were witness to the accident. They were extensively cross-examined, but nothing was brought on record which would tend to show their evidence cannot be believed or trusted. The only evidence challenging the same is the statement made by Dinesh Kumar (DW-1) who in his evidence has denied that the accident was caused by the offending vehicle. This Court is wary of accepting the testimony of Dinesh Kumar regarding the involvement of the offending vehicle in the accident. This is because there is material contradiction in his evidence and the written statement filed by him jointly with Anil Kumar Tuli. In the written statement it has been stated that on the fateful day, the driver had taken the car to Lucknow and while returning back he saw a crowd at the bypass and subsequently left the car on the road side and went to relieve himself. It was at this time that the police took away the car. To the contrary, in his deposition, Dinesh Kumar has specifically stated that on the fateful day he took the car to Annapurna Mandir and not to Lucknow and there was no traffic jam on the road on that day.
14. The stand taken by Dinesh Kumar, that the offending vehicle was not involved in the accident is understandable as he is facing prosecution for causing the accident and the death thereby of deceased Vishnu Sharma. Dinesh Kumar is thus an interested party in the present matter. In the circumstances, the mere statement of Dinesh Kumar cannot be held to be enough to counter the specific statements made by eyewitnesses PW-1 and PW-2 to the extent that the car in question was involved in the accident, and was present at the accident spot.
15. It is well settled that in motor accident claims, the Claimants are merely to establish their cases on the touchstone of preponderance of probability. The standard of proof of beyond reasonable doubt is not to be applied.
16. In the present case, the Tribunal has considered all the evidence on record, and has thereafter arrived at a categorical finding that the vehicle in question was indeed involved in the accident. Keeping in view the statements of the eyewitnesses, the fact that the car in question was found at the accident spot and the failure of the owner and driver of the car to bring any credible evidence to showcase that the car in question was elsewhere at the time of the accident, this Court does not find any reason to interfere with this finding of the Tribunal.
17. Moreover, the burden to establish that the offending vehicle was insured was upon the owner of the vehicle. The owner, in order to discharge his burden, has filed a cover note paper no. 5Ga3 alleged to have been issued by the T.P. Nagar, Kanpur branch of the Insurance Company on 05.09.2011.
18. Sushil Kumar Srivastava (DW-2), who appeared on behalf of the Insurance Company, in his examination-in-chief, has mainly stated that the T.P. Nagar, Kanpur branch of the Insurance Company was shifted to Govind Nagar, Kanpur branch in the year 2007 and the cover note submitted by the Appellants has not been issued by the Govind Nagar branch of the Insurance Company. In his cross-examination, Sushil Kumar Srivastava also stated on oath that the cover note submitted by the Appellants is fake and counterfeit in nature as it neither bears the signature of any Officer of the Insurance Company nor does it contain the code of the Company.
19. The Appellants have not been able to contradict the aforesaid statements of Sushil Kumar Srivastava (DW-2). Further, though in his examination-in-chief, Dinesh Kumar, the only witness on behalf of the Appellants, has stated that the offending vehicle was insured with the Insurance Company however, when cross-examined, he categorically denied accompanying Anil Kumar Tuli to get the offending vehicle insured. Further, he disclaimed any knowledge of the fact that the insurance had expired.
20. It is a settled position of law that if the best evidence is held back by a party, adverse inference is to be drawn against such party. In Iswar Bhai C. Patel v. Harihar Behera, (1999) 3 SCC 457, the Apex Court in paragraphs 17, 22 and 23 has held as under:
"17. Admittedly Respondent 1 had an account in Central Bank of India Limited, Sambalpur Branch which his father, namely, Respondent 2 was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by Respondent 2. It has been given out in the statement of Respondent 2 that when the appellant had approached him for a loan of Rs 7000, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of Respondent 1 and it was on his suggestion that Respondent 2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness-box to make a statement on oath denying the statement of Defendant (Respondent) 2 that it was at his instance that Respondent 2 had advanced the amount of Rs 7000 to the appellant by issuing a cheque on the account of Defendant (Respondent) 1. Having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872.
* * *
22. This decision has since been relied upon practically by all the High Courts. The Lahore High Court in Kirpa Singh v. Ajaipal Singh observed as under:
"It is significant that while the plaintiffs put the defendant in the witness-box they themselves had not the courage to go into the witness-box. Plaintiffs were the best persons to give evidence as to the ''interest' possessed by them in the institution and their failure to go into the witness-box must in the circumstances go strongly against them."
23. This decision was also relied upon by the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh which observed as under:
"It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case."
(emphasis supplied)
21. In the present case, notably, Dinesh Kumar was not the owner of the vehicle and Anil Kumar Tuli, the owner, did not even step into the witness box in order to prove the veracity of the cover note in question. There is no material evidence on record on behalf of the owner of the offending vehicle to contradict the statements made by Sushil Kumar Srivastava. In the circumstances, the inference drawn by the Tribunal cannot be said to be unjustified. The said issue is decided accordingly.
22. In so far as the multiplier is concerned, the submission of the learned counsel for the Appellants that in case of a bachelor the multiplier should be on the basis of age of the parents is misconceived. It is no more res integra that the multiplier has to be on the basis of the age of the deceased and not on the basis of the age of the parents. In Amrit Bhanu Shali v. National Insurance Co. Ltd., (2012) 11 SCC 738, the Apex Court has held as follows:
"15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation."
(emphasis supplied)
23. In view of the discussions made above, First Appeal From Order Defective No. 852 of 2014, Anil Kumar Tuli and another v. Harish Chandra Sharma and others, has no merit and is liable to be dismissed.
FAFO NO. 603 OF 2014
24. This appeal has been filed by the National Insurance Company on the ground that once the Tribunal had come to the conclusion that the offending vehicle was not insured with the Insurance Company, no direction could have been issued to the Insurance Company to pay the compensation to the claimants and then recover the same from the owner of the offending vehicle.
25. In Darilian Passah v. Batriti Lyngdoh and Ors., Misc. Appeal No. 1(SH) of 2004, (2010) 4 GLR 599 the Gauhati High Court has held that where the insurance policy is fake the insurance company cannot be directed to pay the compensation to the claimants and then recover the same from the owners. Paragraph 8 (relevant portion) and 9 of the said report are extracted below:
"8. Coming now to the contention of Mr. S.K. Deb Purkayastha, the learned Counsel for the appellant that the insurer is bound to pay the compensation amount awarded by the Tribunal and then recover the same from the insurer in accordance with the law laid down by the Apex Court in National Insurance Co. Ltd. v. Swaran Singh and Ors. (2004) 3 SCC 297, I have carefully gone through the decision, but I am unable to persuade myself to apply the same in this case. In that case, the Apex Court was considering the cases of the driver (a) holding no driving license, (b) holding a fake driving license, (c) holding a driving license but the validity thereof has expired (d) holding a driving license but not for the type of the vehicle driven by him and, finally, holding a learner's driving license. In my opinion, it is in the context of the five situations that the principle of pay first and then recover can be invoked. It should be noted that in those five situations, there is at least a valid contract between the insurer and the insured, but there is breach of policy conditions, for which a third party should not be allowed to suffer.
and then So understood, in my judgment, the attempt made by the learned Counsel to apply the principle of pay first and recover later appears to be misconceived as well as unwarranted. In the instant case, it is a case of fake insurance policy and not a case of fake driving license. There is not even a semblance of contract of insurance between the insurer and the insured. The owner of the vehicle is apparently guilty of fraud. There is absolutely no basis for insisting the insurer to first pay the appellant and then recover the same from the owner of the vehicle.
9. Resultantly, this appeal is hereby dismissed. It is accordingly declared that the insurer has not the liability to satisfy the impugned award nor has it the duty to pay, the compensation to the claimant-respondent. Order accordingly. However, on the facts and in the circumstances of the case, I direct the parties to bear their respective costs.
(emphasis supplied)
26. Similarly, the Bombay High Court in Bharti Axa General Insurance Company Limited v. Gayabai Devrao Weldode and Other, First Appeal No. 4447 of 2016, after holding that the policy relied upon by the owner of the vehicle was fake, refused to direct the Insurance Company to ''pay and recover'. Paragraphs 12 and 13 of the said report are extracted below:
"12. Thus, obviously on the date of accident the offending jeep was not insured with the appellant/Insurance Company. On 01.05.2013 there was no contract of insurance in between the Insurance Company and the owner of offending vehicle. It follows that the Insurance Company is not liable to indemnify the owner of offending vehicle for the accident which occurred on 01.05.2013. In the circumstances, considering the date of payment of premium on 09.05.2013 (Exh. 43), I have no hesitation to hold that copy of insurance policy filed by the claimants at Exh. 29 is certainly a fake and tampered policy of insurance. Therefore, the appellant/Insurance Company is not at all liable to pay the compensation to the claimants. As this is not the case of breach of condition of policy, but the case of absence of contract of insurance of the offending vehicle on the date of accident, even the 'pay and recover' order cannot be passed against the Insurance Company. Both the cases relied on by the original claimants are distinguishable on facts.
13. In the result, I hold that the appellant/Insurance Company deserves to be exonerated in toto and no direction can be issued against the Insurance Company to pay compensation amount to the claimants and later on recover it from the owner of offending vehicle. Accordingly, I answer point Nos. 1 and 2 in negative."
(emphasis supplied)
27. A similar view has also been taken by the Delhi High Court in Jyoti Jha and Others v. Kamal and Others, MAC. APP. 1016 of 2013 wherein the court has held that no liability can be fastened on the Insurance Company on the basis of a fake cover note.
28. There is no apparent reason to take a different view. This Court is in complete agreement with the view expressed by the High Court at Gauhati, Bombay and Delhi.
29. Given the finding of the Tribunal that the offending vehicle was not insured at the time of accident, coupled with the settled legal position as stated above, the Insurance Company cannot be directed to pay the compensation amount to the claimant and then recover the same from the owner of the offending vehicle.
30. For the reasons stated above, First Appeal From Order No. 603 of 2014, National Insurance Company Ltd. v. Smt. Saroj Sharma and others deserves to be allowed.
31. In view of the above, First Appeal From Order Defective No. 852 of 2014, Anil Kumar Tuli and another v. Harish Chandra Sharma and others is dismissed and First Appeal From Order No. 603 of 2014, National Insurance Company Ltd. v. Smt. Saroj Sharma and others is allowed. The judgment and award under appeal is modified to the aforementioned extent.
32. With the aforesaid modification, both the appeals stand disposed of. There shall be no order as to costs.
Order Date :- November 26, 2019 Pradeep/-