Judgment:
Deepak Gupta, J.
1. These two appeals are being disposed of by a common judgement since they arise out of one award delivered by the learned Motor Accident Claims Tribunal-II, Solan on 7.4.2005 in claim petition No. 43-S/2 of 2003.
2. The claimants are the three sons and a daughter of late Shri Mohan Lal. They filed a petition under Section 166 of the Motor Vehicles Act claiming compensation for the death of their father Mohan Lal, which according to them was caused due to the accident with Scooter No. HP-14-4045. The deceased was working as Blacksmith in the HPPWD and was aged about 50 years. In the original claim petition it was alleged that the scooter was owned and driven by Shri Deepak Singh S/o Shri Balwant Singh. Deepak Singh filed a reply stating that he is neither the owner nor the driver of the scooter and the same is owned by Shri Neeraj Negi working in the Sub Post office at Chambaghat. According to Deepak Singh the vehicle was being driven by Shri Neeraj Negi and he was only a pillion rider. Thereafter the claimants amended the claim petition and impleaded Neeraj Negi as respondent No. 1-A.
3. Shri Neeraj Negi filed reply in which it was stated that the accident took place on account of the fact that the deceased Mohan Lal was intoxicated and all of a sudden he tried to run across the road in a negligent manner and hit the scooter. It was further stated that the vehicle is insured with the United India Insurance Company and therefore, the liability, if any, is of the Insurance Company.
4. The Insurance Company took up the plea that the Insurance Policy No. 11301/31/03/01186 was issued on 26.8.2003 and valid from 20.00 hrs. i.e. 8 p.m of 26.8.2003 till midnight of 25.8.2004. According to the Insurance Company, this policy of insurance was obtained after the accident had taken place and that the owner of the scooter Shri Neeraj Negi had concealed and misrepresented the facts while getting the vehicle insured from his neighbour Shri M.K. Bhat, who is an employee of the Insurance Company.
5. According to the Insurance Company on 26.8.2003 at about 8 p.m. the insured Neeraj Negi approached Mr. M.K. Bhat and requested that his scooter be insured immediately since he is going out of Solan for a few days. Believing his representation to be true Shri Bhat asked the insured to fill in additional questionnaire form in addition to the normal proposal form. Both these forms, i.e. proposal form and additional questionnaire form were filled in by Mr. Bhat on the basis of the facts disclosed by the insured and after reading the contents and admitting them to be true the insured put his signatures on both the forms. This policy of insurance was issued by Mr. Bhat in the presence of one Mr. Tanwar. It was stated that while entering the data in the computer by mistake the commencement of the policy was wrongly entered as 18.00 O'clock and that this mistake was rectified vide an endorsement No. 111301/31/03/30284 and the insured was informed about it by registered post. The defence of the Insurance Company was that at about 7.30 p.m when the accident took place the vehicle was not insured.
6. Parties led evidence and the learned trial Court came to the conclusion that it was Deepak Singh who was minor who was driving the scooter. The learned Tribunal also came to the conclusion that Deepak Singh had no valid driving license. The learned Tribunal also came to the conclusion that the Insurance Policy was obtained by fraud and was null and void. The claimants were held entitled to compensation of Rs. 2,02,00/- and the respondents Deepak Singh and Neeraj Negi alone were held responsible to pay the same. FAO No. 293 of 2007 has been filed by Shri Neeraj Negi and FAO No. 90 of 2006 has been filed by the claimants. It would be pertinent to mention that Deepak Singh has not filed any appeal. It has been strenuously urged by Shri Romesh Verma learned Counsel for Shri Neeraj Negi that there was a valid policy of Insurance and therefore the Insurance Company should have been held liable to pay the amount. He has also challenged the finding rendered by the learned Motor Accident Claims Tribunal on the issue of negligence. He urges that the facts stated in the F.I.R. were false and did not depict the correct state of affairs.
7. F.I.R. Ext.PW-4/A was lodged on 27.8.2003 at 9.20 a.m on the statement of Shri Vijay Dutt Tiwari. In this F.I.R. it is stated that on 26.8.2003 at about 7.30 p.m. the informant was going to his house near Anjee Depot when two people came on a scooter which was going towards Solan. One young boy was driving the scooter and another person was sitting behind. This scooter hit Mohan Lal, who fell down on the spot. The scooter No. HP-14-4045 was being driving by Deepak Singh S/o Balwant Singh. The injured Mohan Lal was taken to the hospital.
8. Amar Singh was examined as PW-2. He states that on 26.8.2003 when he was near Anjee Depot then one scooterist hit the deceased Mohan Lal. Thereafter Mohan Lal was taken to the hospital at Solan from where he was referred to Shimla where he expired on 27.8.2003. In cross-examination this witness states that Mohan Lal had consumed liquor and the accident took place at 8.00 p.m. He has, however, denied the suggestion that Mohan Lal suddenly tried to cross the road. He, however, could not identify the scooter driver. He also states in cross-examination that the sun had not set when the accident took place. The F.I.R. in question has been proved by PW-4. He has not been cross-examined at all.
9. Neeraj Negi was examined as RW-1. According to him, on 27.8.2003, between 8.30 p.m and 8.45 pm he was driving the vehicle. According to him his brother Deepak was sitting behind him. He further states that Mohan Lal who was intoxicated suddenly tried to cross the road and as such hit the scooter. Thereafter Deepak took Mohan Lal to the hospital in a three-wheeler and he returned home. He further states that his vehicle is insured with the United India Insurance Company. In cross-examination he states that he knows Shri M.K. Bhat, who is his neighbour and works with Insurance Company. He states that he received the policy by post.
10. He further states that previously he had a Insurance Policy of the vehicle which is lost but previously his scooter was insured with the National Insurance Company. He, however, could not state as to when the earlier policy had expired. According to him he had paid the premium of the Insurance to Mr. Bhat in the office of the Insurance Company at about 5.00 p.m. He denied the suggestion that he got the policy from Mr. Bhat after the accident had taken place or that the proposal form was filled in by him at 8.00 p.m. He firstly denied his signature on the proposal form. He thereafter was confronted with the original proposal form and admitted his signature and encircled -'A'. He has admitted his signature on the proposal form Ext.R-1. He also admits his signature in circle-B. He has, however, denied that the date 28.8.2003 and the time 8.00 p.m. is in his hand.
11. As far as the Insurance Company is concerned, it examined Shri M.K. Bhat, who stated that he had issued the policy to Shri Neeraj Negi, his neighbour after 8.00 p.m on 26.8.2003. According to him he had done this in the presence of one Shri Tanwar, who has also been examined by the Insurance Company. One need not to go into the oral evidence of these witnesses in detail in view of the documents which are on record. The proposal form Ex. R-1 is admittedly filled-in in the hand of Shri M.K. Bhat. However, it is important to note that it bears the signature of Shri Neeraj Negi in circles A and B. There are two important writings on this document; one is the place is given as Solan and the date is given as '26.8.2003 - 8.00 p.m' encircled 'D' and there is another writing 'there is no claim till date and time' encircled 'C'. Shri Neeraj Negi has denied these two writings. These writings are definitely not in the hand of Mr. M.K. Bhat who has filled in rest of the document.
12. These writings, on the face of it, appear to be in the hand of Shri Neeraj Negi. Ex. R-2 is the additional questionnaire form. This is signed by Shri Neeraj Negi and this also bears the place as Solan and date as 26.8.2003 at 8.00 p.m. This writing also appears to be in the hand of Mr. Neeraj Negi.
13. It is also important to note that the earlier policy with the National Insurance Company had expired much before the accident took place. There is no explanation as to why the old Policy was not renewed. The accident took place at about 7.30 p.m. According to Shri Neeraj Negi the accident took place at 8.30-8.45 p.m. It is obvious that he is trying to change the time of the accident just to fasten the Insurance Company with the liability to pay compensation. The policy as is apparent from the proposal form and additional questionnaire form was obtained after 8.00 p.m. The Insurance Company cannot be held liable on the basis of this policy.
14. Even as far as the issue of negligence is concerned, the finding of the learned Tribunal is absolutely correct. All the witnesses state that it was Deepak Singh who was driving the vehicle. Neeraj Negi admits the presence of Deepak Singh though he states that Deepak Singh was his brother. This is not borne out from the record. Their parentage is different. In the reply filed on behalf of Deepak Singh, he admitted that he was present on the spot. He was not examined in Court and therefore, adverse inference has to be drawn against him. Even after the learned Tribunal came to the conclusion that it was Deepak Singh who was driving the vehicle, he has not care to file any appeal. It is obvious that the accident occurred due to the rash and negligent driving of Deepak Singh. Since Deepak Singh was a minor and did not have a valid driving license and the vehicle was not insured, Mr. Neeraj Negi obtained a policy after the accident with a view to transfer the liability on the Insurance Company.
15. As far as the compensation is concerned Shri Khidta has urged that since the deceased was earning about Rs. 4,000/- per month, i.e. Rs. 48,000/- per annum and after deducting personal expenses the loss of dependency comes to Rs. 32,000/- According to him since the deceased was only 50 years old, the multiplier of 6 used is very much on the lower side. Normally this argument would have been accepted but an important fact to be noted here is that Mohan Lal did not leave behind a widow and out of his children one was already about 18 years and other children would have attained majority in the next 7-8 years and therefore, they would not have been dependent on their father for a long time. Consequently, the multiplier used is reasonable and the compensation assessed cannot be said to be low.
16. In view of the above discussion, both the appeals are dismissed. The appeal filed by Shri Neeraj Negi is dismissed with costs assessed at Rs. 5,000/-.