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2000 DIGILAW 1183 (MP)

ORIENTAL INSURANCE CO. LTD v. AYODHYABAI

2000-11-02

A.K.GOHIL

body2000
A. K. GOHIL, J. ( 1 ) APPELLANT insurance company has filed this appeal under section 173 of the Motor Vehicles Act, 1988 against the award dated 24. 12. 1996 passed by the M. A. C. T. , Shajapur in Claim Case no. 24 of 1995 on the ground that the award is nullity inasmuch as same was made without bringing L. Rs. of respondent No. 2 Mangalsingh on record, who died during the pendency of claim petition and also on the ground that the cover note on which vehicle has been shown as insured is a forged and fabricated one and no such cover note was ever issued in the name of owner of the truck No. MP 06-2252. ( 2 ) THE facts of the case in brief for the disposal of this appeal are that Ayodhyabai, respondent No. 1, on 4. 4. 1994 filed a claim petition under sections 166 and 140 of the Motor Vehicles Act on the ground that on 4. 2. 1994 at about 4 p. m. deceased kaluram Rathore, husband of the claimant was coming to his village Chonsala nikamb, Tehsil and Dist. Shajapur from panwadi Hat Bazar. He was standing on a. B. Road near Abhaypur passenger bus stop, one truck No. MP 06-2252 came from Sarangpur side, which was being driven by Ramprakash s/o Balaram, respondent No. 3, rashly and negligently and without horn, hit the deceased Kaluram. Deceased Kaluram came under the wheels of the truck and as a result of this accident his head and legs were ruptured and he died on spot. The matter was reported to the Police Station, Shajapur and Crime no. 62 of 1994 was registered. ( 3 ) THE wife of deceased Kaluram filed claim petition for compensation submitting therein that Kaluram was aged about 42 years enjoying very good health and was earning Rs. 75,000 per year from agriculture. It was further alleged in the application that aforesaid truck was insured with the respondent No. 3 insurance company and the cover note number is 886612. Appellant insurance company filed written statement before the trial court and denied this fact that the aforesaid truck was insured with the insurance company. It was further pleaded in the written statement that the driver was not having a valid and effective driving licence. The trial court recorded the evidence of the claimant. Appellant insurance company filed written statement before the trial court and denied this fact that the aforesaid truck was insured with the insurance company. It was further pleaded in the written statement that the driver was not having a valid and effective driving licence. The trial court recorded the evidence of the claimant. The respondent company stated on 20. 12. 1996 before the Tribunal that they do not want to lead any evidence and the Claims Tribunal awarded a compensation of Rs. 79,000 with 12 per cent interest from the date of filing of application against which the insurance company has filed this appeal challenging the award on the aforesaid grounds. ( 4 ) I have heard the learned counsel for parties and perused the record. The submission of Mr. Dhupar is that after the award the insurance company came to know by an enquiry from its various offices and from the surveyor's report that during the pendency of appeal owner of the truck Mangalsingh has expired but the appellant has not made any efforts to bring the L. Rs. of Mangalsingh on record and, therefore, this appeal is a nullity. The submission of learned counsel for the appellant is that the cover note which has been filed before the trial court and relied on by the trial court is a forged and fabricated document, therefore, it cannot be held that the insurance company shall be liable for payment of compensation. In appeal company has also filed application for taking some documents on the record which is a carbon copy of the original cover note and also the reports prepared by the surveyor about the death of Mangalsingh. ( 5 ) IN reply submission of Mr. Patwa, learned counsel for claimant is that they have not filed any fabricated or forged cover note. In fact the copy of this cover note was seized by the police in criminal case from Mangalsingh and produced with the challan in a criminal case and they have obtained copies of the challan papers and from that seized cover note they came to know about the fact that the said vehicle was insured with the company. The further submission of Mr. Patwa is that the Tribunal by order dated 31. 8. 1995 allowed the amount of no fault liability of Rs. The further submission of Mr. Patwa is that the Tribunal by order dated 31. 8. 1995 allowed the amount of no fault liability of Rs. 25,000 and at that time also the insurance company has not raised any objection that the aforesaid cover note is a forged one or that the vehicle is not insured with them. Later on the insurance company also deposited the amount under the no fault liability of rs. 25,000 in the court and on 8. 7. 96 after two years of the accident before Tribunal in the claim case claimant gave notice to the insurance company under Order 11, rule 1, Civil Procedure Code to reply as to whether the aforesaid cover note dated 15. 12. 1993 was issued from the office of the company and whether the aforesaid vehicle was insured with the appellant company or not. The company has not filed any reply to the notice dated 8. 7. 1996 despite the order by the Tribunal and again on 19. 8. 1996 the claimant gave a notice to the appellant insurance company under Order 12, rule 2, Civil Procedure Code to disclose the fact whether the aforesaid cover note has been issued and the copy thereof is in the possession of insurance company or not. Thereafter on 24. 9. 1996 the claimant filed an application under Order 12, rule 2, Civil Procedure Code for taking the aforesaid cover note in evidence as admitted by order dated 15. 10. 1996. The Tribunal directed that by next date of hearing, i. e. , 10. 12. 1996 the insurance company should verify the documents and file reply otherwise the documents shall be treated as admitted in the evidence even then the company has not filed any reply or filed any verification report. On 20. 12. 1996 the evidence of the claimant was closed. The learned counsel appearing for the insurance company submitted before the Tribunal that he does not want to produce any evidence on behalf of the company. The case was closed and arguments were heard and the award was passed. Therefore, the submission of the learned counsel for claimant is that they took all precautions and sufficient opportunity was granted to the respondent to verify the said document but during the course of the trial continuously for more than two and half years the appellant insurance company could not verify the said document. Therefore, the submission of the learned counsel for claimant is that they took all precautions and sufficient opportunity was granted to the respondent to verify the said document but during the course of the trial continuously for more than two and half years the appellant insurance company could not verify the said document. The further submission of Mr. Patwa is that they have obtained this document from the record of the criminal case and this document was seized from the custody of Mangalsingh himself who was owner of the truck. Therefore, the claimant cannot be held responsible even if the document is forged or fabricated. If it was fabricated it is only Mangalsingh, the owner of the truck who is responsible for fabricating the document. During the course of the trial, service was effected on the respondents by publication and the appellant claimant who is a widow and an illiterate village lady could not know about the death of Mangalsingh, owner of the truck during pendency of the claim case and more so the award cannot be treated as nullity because the same is not abated against the insurance company. The liability of insurance company is a statutory liability. If the insurance company has not led any evidence before Tribunal the claimant cannot be held responsible for the same. The submission of learned counsel for the respondents is that the insurance company is itself responsible for its laches during the course of trial and for that claimant cannot be penalised. At the most the appellant insurance company may recover the aforesaid amount of compensation from the l. Rs. or from the estate of Mangalsingh who is the truck owner. ( 6 ) AFTER considering the rival submissions of learned counsel for the parties, I am of the view that insurance company is liable for its own negligence as during the period of last two and half years it could not verify whether the cover note seized by the police from the custody of Mangalsingh is a forged and fabricated document. From the record it is clear that the respondentclaimant took every care and gave notice and filed applications for the admission and denial of this fact and document by the insurance company but the company has not cared to verify the same. From the record it is clear that the respondentclaimant took every care and gave notice and filed applications for the admission and denial of this fact and document by the insurance company but the company has not cared to verify the same. It is still to be decided and an inquiry is to be held whether the said cover note is a forged one. Before the Tribunal the insurance company has not led any evidence and has not even examined any witness on oath to say that the said vehicle was not insured with the insurance company and has not made any attempt to verify the document. The claimant who is a poor village and illiterate lady cannot be allowed to face a retrial of the case for compensation when she is not at fault. She also cannot be held responsible for making or producing a forged and fabricated document when she had produced the same after obtaining it from the criminal court's record. The claimant had filed a certified copy of criminal court's record. In the report under section 173, criminal Procedure Code prepared by the concerned police station it has been mentioned that the papers of the insurance policy were seized by the police on production by the driver and the owner of the vehicle and they were found in the truck along with the registration, fitness, driving licence and other papers. It shows that the owner of the truck was keeping all those papers in the truck just to show that the vehicle was insured. ( 7 ) THEREFORE, the application under order 41, rule 27 filed by the insurance company cannot be allowed and, inter alia, appeal of the appellant insurance company cannot be allowed. Accordingly, this appeal has no merit and is dismissed. However, liberty is granted to the insurance company that they may recover the amount of the award from the L. Rs. of Mangalsingh, truck owner by taking appropriate legal steps. Appeal dismissed. .