- (1.) K. S. Rakhra, J. Heard Sri Shishir Pradhan learned Counsel for the petitioner, learned Counsel for the private respondent Nos. 2 and 3 who are claimant and owner of the vehicle respectively. Also perused record.
(2.) THE opposite party No. 2 filed a claim petition under Motor Vehicles Act claiming compensation with regard to certain accident in which she had received injuries. THE vehicle involved in the accident belonged to the opposite party No. 3 and it was insured with the petitioner United India Insurance Company Limited. During hearing of claim petition, the petitioner made an application under Section 170 of Motor Vehicles Act to contest the claim petition on merit. It may be mentioned here that in the claim petition itself, the opposite party No. 3 had impleaded the petitioner as opposite party. THE grounds on which the application under Section 170 was made, was that the claimant and the insured appeared to be in collusion with each other as no effective cross-examination was being done by the insured to the witness i. e. , the claimant who appeared in the witness box. No question was put to her with regard to her disability as well as her income and mode of accident. The Claims Tribunal has rejected the application inter alia on the ground that there appeared no collusion between the claimant and the injured and that the employer of claimant was yet to be examined with regard to income of the claimant and so far as the disability is concerned, it was apparent as the claimant was present in the witness box. The argument of the learned Counsel for the petitioner is that the percentage of disability and the income of the claimant are two relevant considerations on which the quantum of compensation would ultimately be determined by the Claims Tribunal. The contention of the learned Counsel for the petitioner is that if the insured does not effectively cross-examine the claimant on these two points, a collusion can be inferred and the Insurance Company who has ultimately to make payment of compensation should, therefore, be permitted to contest the petition.
(3.) LEARNED Counsel for the Opposite Party No. 2 on the other hand, argued that this could be done only when the insured is called upon to lead evidence in defence. Considering the circumstances and submissions, it appears that the order of trial Court if allowed to stand, would occasion failure of justice. The insured in this case naturally would not be knowing or would not be in a position to lead the exact evidence as to the income of claimant. It has to be decided on the basis of effective cross-examination and other material, which may be brought before the Claims Tribunal. Similarly, the extent of disability has also to be determined not with reference to visual observation of the Tribunal but on the basis of material on record and cross-examination on that score. Since no cross-examination was done by the insured on these two important points it was a fit case where permission ought to have been granted under Section 170 of Motor Vehicles Act.;