1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) Appellant: MAC App. No. 105 of 2007 M/s. New India Assurance Co. Ltd. Having its registered office at New Assurance Building 87, Mahatma Gandhi Road, Mumbai and one of the Regional office at G.S. Road, Bhangagarh, Guwahati, Assam. By Advocate : Mr. S.S. Sarma, Senior Advocate. Claimant-Respondents : 1. Smti Pranati Das, Wife of Late Surendra Das, Vill : Bishnupalli, P.O & P.S Hojai, Dist. Nagaon (Assam). 2. Smti Kaushiya Debi Dhoot, D.O- Late Sewali Dhoot, P.O. Haibargaon, Natgaon, Assam. 3. Md. Azgar Ali, C/o. Smti Kaushlya Debi Dhoot, P.o- Haibargaon, Nagaon, Assam. By Advocate : Mr. I. Uddin, Advocate. B E F O R E THE HON BLE MR. JUSTICE S. TALAPATRA Date of hearing & : 27-07-2012. Judgment J U D G M E N T AND O R D E R(oral) Heard Mr. S. S. Sarma, learned Senior counsel appearing for the appellant, M/s. New India Assurance Co. Ltd. as well as Mr. I. Uddin, learned counsel appearing for the claimant-respondent No. 1. There is no MAC App. No. 105 of 2007 Page 1 of 7
2 representation from the other respondents despite due notice from this Court. 2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 by the M/s. New India Assurance Co. Ltd. against the judgment and award dated 13.07.2006 passed by the Motor Accident Claims Tribunal, Hojai in MAC Case No. 439 of 2003. 3. The findings as regards the accident, which occurred on 24.09.2001 at Ambinong under Hamren P. S and involvement of the offending vehicle bearing registration No. ASU-4039 (Truck) owned by the respondent No. 2, its rash and negligent driving causing the death of one Sanju Das, son of the claimant Smti. Pranati Das at the age of 30 years and the insurance cover by the appellant are not in dispute in this appeal. In view of this, all those findings stand affirmed by this Court and a fresh appraisal on those aspects is avoided. 4. The solitary question that has been emphatically projected in this appeal that the Tribunal without any basis of evidence returned the following findings by the impugned judgment and award: 13. After hearing rival argument, this Tribunal perused the evidence of DW1, as well as Ext. A and the Xerox copy of the policy of the offending vehicle. The Tribunal is not hesitant to say that the order 20.09.2001 has been over written and PW5 on the figure 0 of 20. Moreover Ext.A shows that one T.R. Ranka has put his signature in the proposal form for the owner of the vehicle knowingly in Deb: short. DW1 cannot say who is T.R Ranka and under what authority Ranka has put his signature in the proposal form in place of MAC App. No. 105 of 2007 Page 2 of 7
3 the owner i.e. the proper law(sic) t hat the proposal who propose to insure his or her vehicle. Strong enough, instead of proprietor one unknown person put his signature and that was accepted as Opp. No. 2. It clearly reflects that there was a foul play from the side of OP No. 2. Moreover, in spite of the direction by this Tribunal the OP No. 2 has failed to produce the original or a copy of the original policy of the offending vehicle, perhaps, in the fear that the truth may come out. Law demands that the insurance company being (sic). 14. The Hon ble S.C in the case of National Insurance Co. Ltd, New Delhi V. Jugal Kishor and others, reported in AIR 1988 SC 719 has held. The attitude of not filing copy of policy of insurance is worth mentioning. In this connection what is of signifidancey under the fact are invariably not possessed of either the policy or a copy thereof. The Supreme court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in cause to produce. The said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant Insurance Company who are under the obligation to act fairly. In many cases even the owner of the vehicle for the reasons known to him does not choose to produce the policy or a copy thereof. It has to be emphasized that in all such cases where the Insurance Company concurred wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with into defence. MAC App. No. 105 of 2007 Page 3 of 7
4 15. When the OP No. 2(sic) vehicle, then it is their duty to prove the same. But the OP 2 has failed to do so. The evidence or DW1 is very much interesting. It appears that we do not have any knowledge of a.b.c. about the insurance company, its duty & obligation. The (sic) in the certified copy the date which was noted may or may not be 20.09.2001. He admitted that policy was signed afer completion of the policy ans the said signing date was 20.09.2001. He admitted that said policy did not mention the engine no and thesis no of the insured vehicle. It is well known to all that insurance policy must give information about the no of vehicle, its engine no & thesis no. But in the present case, the matter is different. He further admitted that in the Xerox copy of the policy did not bear the seal of the manager and there was cut or overwriting in the policy. The money receipt which was issued at the time of giving premium also not produced by the OP No. 2 before the Tribunal. He admitted that in proposal form i.e. Ext. A there is no signature of Branch Manager and the proposer. Though the word accepted and a signature is there but he cannot say who has signed below. There is no round seal or designation seal in the proposal form. There is no mention about engine no and thesis no in the proposal from he admitted. He further admitted that there is n o witness in the proposal. So, from the Ext. A as well as from the evidence of DW1 it is crystal clear that the OP No. 2 is trying to mislead the court and submitted a false proposal and producing a manipulating document i.e. Xerox copy of the policy of the offending vehicle. 16. In view of the above discussion, this Tribunal hold that the OP No. 2, the New India Assurance Co. Ltd. is liable to make the compensation to the claimant. So, I decide issue No. i and ii accordingly. MAC App. No. 105 of 2007 Page 4 of 7
5 5. Mr. S. S. Sarma, learned Sr. counsel further referring to the Ext. A document which is a policy proposal submits that, that proposal was received on 25.09.2001 at 10.55 a.m. by the appellant and thereafter the said policy was accepted by providing the insurance coverage from 26.09.2001 till 25.09.2002 for the vehicle which met accident on 24-09- 2001. Mr. Sarma, learned Senior counsel further submitted that a specific stand was taken by the Insurance Company in the written statement in para-20, which reads as under: That the averments made in para 21 of the claim petition that Sanju Das was a passenger of the truck who died on spot due to her accidency, for which claim is made. But Sanju Das was a gratuitous passenger traveling in the truck cannot claim any compensation as the truck could not carry any passenger. So the claimant is not entitled any compensation from the O.P N o. 3. Rather the claimant may if wishes claim compensation from the owner of the vehicle. The truck was insured with the New India Assurance Co. Ltd. after the date of accident. So, there is no coverage of policy. 6. Mr. I. Uddin, learned counsel appearing for the respondent No. 1 submits that the finding as returned by the Tribunal could show that the proposal was furnished on 20.09.2001 and he also alternatively submitted before this Court that even if, this Court finds that the offending vehicle on the relevant point of time was not covered by the insurance policy then also the liability can be shifted to the insurance company on condition that initially they would make the payment to the accident victim i.e. the respondent No. 1 and they would realize the same amount under Section 174 of the M.V. Act from the owner inasmuch as it MAC App. No. 105 of 2007 Page 5 of 7
6 is found that M/s. New India Assurance Co. Ltd., the appellant herein has already insured that vehicle. 7. On consideration of the evidence as well as the rival contentions as advanced by the learned counsel for the parties this Court in the fitness of things is inclined to interfere with the said finding as reproduced as perverse for the simple reason that, that was the outcome of misreading of the policy proposal (Ext. A). Apart that, the owner who was supposed to be indemnified by the said policy had preferred not to contest the claim and not to raise any objection, that has been taken by the appellant in the written statement as extracted. The claimantrespondent No. 1 hardly has any status to question about the contract as entered into between the insurance company and the owner under Section 125 of the Indian Contract Act, 1872 having regard to the other statutory requirements. In the relevant time, the vehicle was not under the insurance coverage by the appellant and, accordingly they cannot be saddled with the liability of payment of the compensation. There is no challenge against the quantification of the compensation as assessed by the tribunal, as such the respondent No. 1 is entitled to realize the said compensation from the owner, the respondent No. 2 under the doctrine of vicarious liability for the driver, the respondent No. 3 who has caused death of the son of the respondent No. 1 by the negligent act. For that purpose the respondent No. 2 herein is directed to pay the entire awarded sum i.e. Rs. 2,84,000/- with interest @ 7% p.a from the date of filing of the claim petition till the payment is made within a period of 2(two) months from today. It is stated by Mr. S. S. Sarma, learned Senior counsel, at this stage that the insurance company had deposited Rs. MAC App. No. 105 of 2007 Page 6 of 7
7 1,42,000/- in compliance of the order of this Court and the said amount has been withdrawn by the respondent No. 1 upon execution of a bond, even though the appellant had no liability to ensure the payment of the compensation. It would be proper to direct the respondent No. 2 to make payment of the said sum of Rs. 1, 42,000/- to the appellant and the remaining part of the award as passed by the Tribunal to the respondent No. 1 within the stipulated period i.e. two months from today. On failure of the respondent No. 2 in making the payment in the mode as stipulated, the appellant would be at liberty to realize the said amount from the owner, the respondent No. 2 under Section 174 of the M.V Act straightway. The same recourse is also open to the claimant-respondent No.1 and in case of failure by the respondent No. 2 in making the payment, she may also follow such remedy under Section 174 of the M.V. Act after expiry of the stipulated time for payment as fixed by this Court. 8. For the reasons as aforesaid, the appeal stands allowed. In the fact and circumstances of the case there shall be no order as to costs. 9. Send down the LCRs forthwith. 10. A copy of this order be send to the respondent No. 2 by registered post with A/D by the Registry for his knowledge. JUDGE d.de. MAC App. No. 105 of 2007 Page 7 of 7