Bajaj Allianz Insurance Company Ltd. vs Ganeshu Devi & Ors.

The present petition is maintained by the petitioner/Insurance Company/respondent No. 3 (hereinafter to be called as "respondent No.3") under Article 227 of the Constitution of India, read with other enabling provisions of law, challenging the order dated 23.07.2015, passed by learned Motor Accident Claims Tribunal (II), Chamba, District Chamba, H.P., (hereinafter to be called as "the Tribunal"), in MAC No. 55 of 2013, whereby the evidence of respondent No. 3 was closed, vide impugned order dated 23.05.2015.

Briefly stating facts giving rise to the present petition are that the claimants/respondents No. 1 & 2, before this Court (hereinafter to be called as "the claimants") have filed a petition, under Section 166, read with Section 140 of the Motor Vehicles Act, 1988, before the learned Tribunal alleging therein that on 25.04.2015, deceased Teju, aged 22 years, who was labourer and agriculturist, while travelling in a vehicle, bearing registration No. HP-73-0833, died in an accident, caused by the said vehicle. The said vehicle was owned by Shri Kuldeep Kumar (who is respondent No. 1 before the learned Tribunal). It was alleged that the vehicle in question was being driven rashly and negligently by its driver, Teju, due to which the vehicle was rolled down into a deep gorge at about 200 meters. It was further alleged that claimants were dependent on the deceased, Teju, hence they claimed a sum of Rs. 15,00,000/- (Rupees fifteen lac) as compensation.

By filing reply to the petition respondent No. 3, resisted and contested the claim of the petitioner and it was averred therein that the vehicle was being driven by a person, who was not having a valid and effective driving licence at the time of accident. The vehicle was being plied in violation of the terms and conditions of the Insurance Policy. On merits, it was averred that respondent No. 3 is not liable to pay such highly excessive and exorbitant amount, hence the petition deserves to be dismissed.

Respondent No. 3 (before this Court) averred that on 23.07.2015, the application under Section 140 of the Motor Vehicles Act, was allowed and on the same day the evidence of respondent No. 3, before the learned Tribunal was closed. However, respondent No. 3 assailed the order under Section 140 of the Motor Vehicles Act, only when the petition against the order under Section 140 of the Motor Vehicles Act, was decided, respondent No. 3 came to know that the present order was not assailed, hence the present impugned order, dated 23.07.2015, closing the evidence of respondent No. 3 was assailed separately, by way of present petition.

I have heard the learned counsel for the parties and have gone through the record carefully.

Learned counsel appearing on behalf of petitioner/respondent No. 3 has argued that it is always in the interest of justice to allow the party to lead their evidence, hence the order of the learned Tribunal, closing the evidence of respondent No. 3 may be set aside, as the order sheet shows that reasonable opportunities was not granted to respondent No. 3 to lead their evidence.

On the other hand learned Senior Counsel appearing on behalf of the claimants/respondent No. 1 & 2 has argued that the evidence of respondent No. 3 was closed, after granting eight opportunities to lead their evidence, hence the present petition deserves to be dismissed.

To appreciate the arguments of the learned counsel for the parties, I have gone through the records in detail.

It is seen that the claimants have maintained the petition for the death of their husband and father respectively, who died in a motor vehicle accident, respondent No. 3 has taken a specific defence that the driver was not having a valid and effective license at the time of accident and the terms of Insurance Policy were violated, in view of the violation of terms of Insurance Policy, respondent No. 3 is not liable to pay the amount. Now, coming to the pendency of the petition, the claim petition was maintained by the claimants in the month of October, 2013 and was listed first time on 26.09.2014. The orders sheets of the learned Tribunal from 26.09.2014 to 23.07.2015, are reproduced as under:

Order dated 26.09.2014

Two PWs examined and their statements recorded and placed on the file. Learned counsel for the petitioner, Sh. Latif Mohd. has tendered in evidence, copy of parivar register, Ex. Px and closed the evidence on behalf of petitioner. Now to come up for respondent''s evidence on

11.2014, which be summoned on filing of Pf/DM etc within five days.

Order dated 10.11.2014

No RW present nor steps taken by the respondents to summon their witnesses. Date Prayed. Granted. Let respondent''s evidence be now served for 27.11.2014 on depositing of RAD/PF/DM etc. within 3 days.

Order dated 27.11.2014

No RW present since process issued to RWs not received back either served or unserved. Let respondent''s evidence be again summoned for 24.12.2014 on old PF.

Order dated 24.12.2014

Ld. Counsel appearing on behalf of respondent No. 1 & 2 has tendered in evidence copy of insurance (Ex. R1-A), copy of DL (Ex. R1-B), objected to by respondent No. 3, copy of receipt (Ex. R1/C), copy of passenger and goods tax (Ex. R-1/D), copy of RC (Ex. R1/E) and copy of fitness certificate (Ex. R1/F). His statement to this effect recorded and placed on the file. Notice is to RW dealing hand T.O. Gurdaspur (Pb) not received back either served or unserved. Let respondent''s evidence be again summoned for 16.01.2015 on old PF.

Order dated 16.01.2015

No RW is present or summons issued to PWs not received back either served or unserved. Let fresh notice to RWs be issued returnable for 3.3.2015 be also served through registered post for the date fixed on filing of RAD etc. within 3 days.

Order dated 21.03.2015

Case taken up today for effective hearing as per officer order dated 24.02.2015 no RW present nor summoned or PF/RAD not filed. Date prayed. Granted. Now, RWs be summoned for 04.05.2015 on filing of PF/DM within 5 days.

Order dated 04.05.2015

No RW present nor steps taken. Time prayed and allowed subject to last opportunity to come up for RWs on 09.06.2015 PF/DM be filed within 5 days.

Order dated 09.06.2015

Two RWs examined. Their statements recorded and placed on the file. Let counsel Sh. Madan Rawat, Advocate for respondent No. 1 & 2 has closed evidence on behalf of respondent No. 1 & 2. His statement to this effect recorded separately and placed on the file. Ld. Counsel for respondent No. 3 seeks one more opportunity to produce the evidence. his prayer considered. In the interest of justice one more opportunity for adducing evidence on behalf of respondent No. 3 is granted to him. Let evidence of respondent No. 3 be now summoned for 23.07.2015. Dasti summons be issued if desired. Long dated given on the request of Ld. Counsel for respondent No. 3. No further opportunity for evidence shall be given.

Order dated 23.07.2015

No RWs on behalf of respondent No. 3 present nor the ''Dasti'' summons returned back. Long date was given at the request of the Ld. Counsel for the respondent No. 3, but despite of that no evidence on behalf of the respondent No. 3 produced in the Court. Eight opportunities have already been granted to the respondents to produce their evidence. Now I find no ground to further adjourn this case and hence the evidence of respondent No. 3 is closed by order of the Court. Let this case be listed for arguments on dated 17.08.2015.

Now, the case is being listed for the arguments, respondent No. 3 maintained the present petition on 28.06.2016, assailing the order under the behest that earlier they were not aware of the order, so the order could not be assailed and now order is being assailed, which required to be set aside.

Now, coming to the respondent''s evidence, respondent No. 3 knew its case, but in spite of that he has not produced any evidence on 27.11.2014. Then the matter was listed on 24.12.2014, on the said date also no evidence on behalf of respondent No. 3 was present. However, notice was again issued to dealing hand Office, i.e, T.O, Gurdaspur (Punjab) for 16.01.2015 and RWs were directed to be served through Registered post, but on 21.03.2015 the case was again adjourned. On 04.05.2015, the case was yet again adjourned, as respondent No. 3 has not taken steps for the service of RWs and last opportunity was again granted to respondent No. 3 on 09.06.2015 to lead their evidence and it was ordered that dasti summons be served on 23.07.2015, however on that day neither RWs were present nor dasti summons were returned back, so the evidence of respondent No. 3 was closed.

From this it is clear that respondent No. 3 wanted to examine the witness from the T.O Gurdaspur (Punjab), but they had not served those dasti summons. Though, I find no illegality of the order passed by the learned Tribunal on 23.07.2015, but as argued by the learned counsel for respondent No. 3, in the interest of justice, one more last opportunity to lead their evidence may be granted in favour of respondent No. 3.

This Court finds that to meet the ends of justice, it will be appropriate to direct respondent No. 3 to take dasti summons for the services of their witnesses, for which they had already taken the dasti summons and produce that witness in the Court. However, as the claimants are made to suffer for more than a year and forced to prolonged litigation upto High Court, hence they are entitled for reasonable costs. So, this Court finds that one more opportunity can be granted to respondent No. 3, subject to costs of Rs. 20,000/- (Rupees twenty thousand), to meet the ends of justice.

Accordingly, the present petition is disposed of by ordering that the learned Tribunal will issue dasti summons for the date to be fixed by the Court on 21st February, 2017, on which date the parties to remain present before the learned Tribunal and dasti summons will be issued for the service of one witness of respondent No. 3, for whom dasti summons were issued for 23.07.2015. It is made clear that thereafter no further opportunity will be granted to respondent No. 3 to lead any evidence, except if the witnesses does not appear before the learned Tribunal, in spite of service and only in that eventuality the learned Tribunal may take coercive steps. However, this order is subject to the payment of costs to the claimants before the next date of hearing i.e, 21st February, 2017. Long date, which is fixed to appear before the learned Tribunal is only at the instance of learned counsel for the parties, as there are winter vacation in Courts at Chamba.

In view of the aforesaid terms, the petition stands disposed of, so also pending application(s), if any.