New India Assurance Co. Ltd. v. Thankamma — 1989 DIGILAW 198 (KER)

JUDGMENT : U.L. Bhat, J. One Kesappan, while riding a cycle from west to east along the road at Thankalam near Kothamangalam, was hit by lorry bearing No. KLK 2982 which came from the opposite direction. Kesappan sustained fatal injuries and succumbed to the injuries on the same day. His widow and three minor children filed an application before the Motor Accidents Claims Tribunal, Ernakulam claiming Rs. 1,00,800/- as compensation from the driver, owner and the insurer of the lorry. The application was resisted on several grounds. The Tribunal held that the accident took place on account of rash and negligent driving of the lorry and fixed the compensation payable at Rs. 75,000/- and fixed the liability on all the three respondents. The insurer has filed this appeal. 2. The only contention urged by learned counsel for the appellant is that the insurance policy issued to the owner of the lorry makes it clear that it is only an Act policy and, therefore, the liability of the insurer is restricted to Rs. 50,000/-. The insurer has filed C.M.P. No. 15286 of 1984 praying that true copy of the insurance policy No. 4227401796 produced along with the petition may be received as additional evidence. A reading of the document shows that it was issued in the name of the owner of the lorry on 2.6.1980, that the period of insurance was 12 months till 1.6.1981, that it was an Act policy and the liability was restricted to such amount as is necessary to meet the requirements of the Motor Vehicles Act. As the Act then stood, the requirement was to cover to the extent of Rs. 50,000/-. If the document is received in evidence and acted upon, the insurer has to succeed in this appeal. 3. Learned counsel for respondent Nos. 5 and 6 herein strenuously opposes the reception of the document as additional evidence. Learned counsel would contend that additional evidence can be received only in terms of the provisions of Order 41, Rule 27, CPC and none of the conditions laid down therein is satisfied in the instant case. 3. Learned counsel for respondent Nos. 5 and 6 herein strenuously opposes the reception of the document as additional evidence. Learned counsel would contend that additional evidence can be received only in terms of the provisions of Order 41, Rule 27, CPC and none of the conditions laid down therein is satisfied in the instant case. He also points out that in the affidavit filed in support of C.M.P. No. 15286 of 1984, the only explanation given for not producing the document before the Tribunal is that the insurer bona fidely believed that the owner of the lorry would produce it and the owner had deliberately refrained from producing it to the prejudice of the insurer. It is argued that this will not be a ground to receive the document. 4. We find from the records that on 15.6.1984 this court ordered notice to the respondents in C.M.P. and service has been completed. None of the respondents chose to file a counter. Learned counsel for respondent Nos. 5 and 6 would say that he was not aware of the petition or the document being produced. If notice has been served to those respondents, there is no purpose in saying that they did not bring it to the notice of learned counsel. 5. It is now brought to our notice that there was insurance coverage for the lorry at the relevant time and the coverage was limited to the requirements of the Act. It is not as if before the Tribunal the parties agreed that there was insurance coverage. We find from the counter filed by the insurer that the insurer did not admit the existence of coverage and at that stage specifically denied the existence of the policy. Nevertheless, the Tribunal acting on the statement in the Motor Vehicles Inspector's report that the vehicle had a valid policy of insurance due to expire on 1.6.1981 chose to hold there was a valid coverage. It is not known on what basis the Motor Vehicles Inspector made that statement in the report. Taking a technical view, it must be possible to contend that in the absence of policy document and a specific admission as to the existence of the policy coverage, the Tribunal could not have held insurer liable to any extent. It is not known on what basis the Motor Vehicles Inspector made that statement in the report. Taking a technical view, it must be possible to contend that in the absence of policy document and a specific admission as to the existence of the policy coverage, the Tribunal could not have held insurer liable to any extent. It is in this background that we will have to consider the question whether the document should be received in evidence. 6. It is only when the document is produced that the Tribunal can safely act on it and hold that the vehicle was covered by the policy. It is only a perusal of the contents of the policy which will satisfy the Tribunal or this court about the existence of a valid policy coverage at the relevant time. The contents should also disclose the limitation of the policy as an Act policy. We do not think one could divorce one from the other, reading only a portion of the document and refraining from reading the other parts of the document. 7. This is a case where the insurer has been held liable without any party producing the original policy or a copy of the policy. The objection is now strenuously raised on behalf of the owner of the vehicle. The original policy document should be in his custody. Even otherwise it is in his interest to ensure that the policy or a copy or other documents showing the existence of insurance coverage is produced before the Tribunal. The person who is in possession of the original document is ordinarily required to produce it before the Tribunal. In this case, the owner of the vehicle failed to produce the document though he contended in his counter statement that there was a policy. We do not think such a person can be heard to say that the appellate court should not look at the policy though produced belatedly by the insurer. 8. Learned counsel for respondent Nos. 5 and 6 invited our attention to the decision of the Supreme Court in National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, (1988) 1 SCC 626 . In that case also, policy or a copy was not produced before the Tribunal or before the High Court. A photostat copy of the policy was produced before the Supreme Court by the appellant insurer. Ltd., New Delhi Vs. Jugal Kishore and Others, (1988) 1 SCC 626 . In that case also, policy or a copy was not produced before the Tribunal or before the High Court. A photostat copy of the policy was produced before the Supreme Court by the appellant insurer. Learned counsel for the respondents did not object to the same being admitted in evidence and it was admitted in evidence. The Supreme Court acted on the document. In para 9 of the judgment, the Supreme Court referred to the attitude often adopted by the insurance companies of not filing a copy of the policy before the Tribunal or even before the High Court in appeal. The Supreme Court pointed out that the claimants for compensation are invariably not possessed of the policy or a copy. The court further observed: This court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the 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 who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the insurance company concerned 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 its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over emphasised. The Supreme Court emphasised the duty of the owner of the vehicle who is in custody of the original policy to produce it before the Tribunal. The obligation on the part of the State or its instrumentalities to act fairly can never be over emphasised. The Supreme Court emphasised the duty of the owner of the vehicle who is in custody of the original policy to produce it before the Tribunal. The Supreme Court also pointed out the duty of the insurer to produce a copy of the document before the Tribunal. This was regarded as fair play on the part of the insurer. We realise that the insurer was not fair enough to produce the document before the Tribunal, but at least the insurer has been fair enough to produce the document before this court. We find that the document is of crucial significance in regard to the controversy in the present case. We do not think the appeal can be disposed of in a fair, just and proper manner without this document in these circumstances, we are inclined to admit the document. There is no contention before us that this document is not a true copy or does not reflect the contents of the original document. Going by this document, the liability of the insurer is restricted to Rs. 50,000/-. Accordingly, the award has to be modified. 9. We share the distress expressed by learned counsel for respondent Nos. 5 and 6 about the belated production of document. Learned counsel pointed out that in a large number of cases, the insurer refrains from producing documents though sometimes the owners of the vehicles might not have retained the original policies. We wish to emphasise the need for the insurance companies to devise ways and means of ensuring that in every motor vehicle accident case where they intend to raise a contention based on the contents of the policy to have the policy produced before the Tribunal without any delay. The insurer in this case has been certainly guilty of laches. We propose, therefore, to burden the insurer with the costs of appeal in so far as the claimants are concerned. The same benefit cannot be given to the owner of the vehicle since he also has been equally guilty of negligence in not producing the document before the Tribunal. 10. In the result, we modify the award by limiting the liability of the insurer to the extent of Rs. 50,000/- together with proportionate interest and costs before the Tribunal. The same benefit cannot be given to the owner of the vehicle since he also has been equally guilty of negligence in not producing the document before the Tribunal. 10. In the result, we modify the award by limiting the liability of the insurer to the extent of Rs. 50,000/- together with proportionate interest and costs before the Tribunal. The appellant shall pay the costs of appeal to respondent Nos. 1 to 4. Advocate's fee is fixed as Rs. 500/-. The other parties will bear their costs.