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Andhra High Court · body

2003 DIGILAW 947 (AP)

Mohd. Mohizuddin Minor v. G. Pitchaiah

2003-07-30

C.Y.SOMAYAJULU

body2003
( 1 ) THE claimant in O. P. No. 224 of 1990 on the file of the Motor Accidents claims tribunal-cum-Additional District Judge, nalgonda is the appellant. he filed the O. P. alleging that on 1-12-1989 while he along with his family members and others was proceeding to Janpahad in a Car bearing No. A. A. L. 7086 and reached the outskirts of narsimhagudem village, a bus bearing No. A. P. P. 4281 belonging to the 1st respondent and insured with the 2nd respondent, being driven in a rash and negligent manner by its driver dashed against the Car in which he and others were proceeding resulting in injuries to him and his family members and so he is entitled to Rs. 75,000/- as compensation from the respondents. ( 2 ) 1st respondent remained ex parte. 2nd respondent filed its counter putting the petitioner to proof of the allegations in the petition and contending that the driver and the owner of the car in which the appellant was travelling at the time of the accident are also necessary parties to the petition. ( 3 ) IN support of his case, the appellant examined himself as P. W. 1 and marked Exs. A-1 to A-5. No oral evidence was adduced by the 2nd respondent, but Ex. B-1 was marked by consent on its behalf. The Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the bus belonging to the 1st respondent and that the appellant is entitled to Rs. 30,000/- as compensation, and since Ex. B-1 insurance policy shows that the bus of the 1st respondent that caused the accident was insured with the 2nd respondent for the period 26-11-1988 to 25-11-1989 only, and since the accident took place on 1-12-1989 i. e. , after the expiry of the period of insurance, holding that 2nd respondent is not liable to pay the compensation payable to the appellant, dismissed the claim against the 2nd respondent and directed the 1st respondent to pay the compensation arrived at. Aggrieved by the dismissal of the claim against the 2nd respondent, this appeal is preferred by the claimant. ( 4 ) THE point for consideration is, whether the 2nd respondent is liable to pay compensation payable to the appellant. Aggrieved by the dismissal of the claim against the 2nd respondent, this appeal is preferred by the claimant. ( 4 ) THE point for consideration is, whether the 2nd respondent is liable to pay compensation payable to the appellant. ( 5 ) THE contention of the learned counsel for the appellant is that the mother of the appellant, who received injuries in the same accident, filed O. P. No. 223 of 1990 in which 1st respondent took a stand in the counter that the bus bearing No. A. P. P. 4281 was insured with the 2nd respondent from 29-11-1989 to 28-11-1990 and therefore 2nd respondent alone is liable to pay compensation, and 2nd respondent, who, did not dispute or deny its liability to pay the compensation to the mother of the petitioner, surprisingly took a stand in this case that the insurance was not in force on the date of accident, and produced a lapsed insurance policy, and sought permission to file petition to receive certified copy of the award in o. P. No. 223 of 1990, which became final and binding on the 2nd respondent, as additional evidence. The contention of the learned counsel for the 2nd respondent is that since the appellant failed to adduce evidence to show that the bus bearing No. A. P. P. 4281 was insured with the 2nd respondent, the tribunal rightly dismissed the O. P. against the 2nd respondent. However, he did not dispute the fact that the mother of the petitioner received injuries in the same accident and filed O. P. No. 223 of 1990. ( 6 ) SINCE the award in O. P. No. 223 of 1990, which is sought to be received as additional evidence in this appeal arose out of the same accident in which the appellant also was involved, and since the respondents in that o. P. and this O. P. are. the same, the award in o. P. No. 223 of 1990 would be relevant for disposal of this appeal. Since the award in o. P. No. 223 of 1990 was passed after the award under appeal in this case was passed appellant can invoke Rule 27 of Order 41 cpc. and since a certified copy of the award in O. P. No. 223 of 1990 is a public document it can be received in evidence without any proof. Since the award in o. P. No. 223 of 1990 was passed after the award under appeal in this case was passed appellant can invoke Rule 27 of Order 41 cpc. and since a certified copy of the award in O. P. No. 223 of 1990 is a public document it can be received in evidence without any proof. Hence the petition to receive additional evidence is allowed, and copy of the award in O. P. No. 223 of 1990 is marked as Ex. A-6. ( 7 ) POINT in appeal: From Ex. A-6 it is seen that the 1st respondent, who remained ex parte in this case, filed a counter in O. P. No. 223 of 1990, and contended that the vehicle bearing No. A. P. P. 4281 was insured with the 2nd respondent under policy no. 431109/504/00070/mv/150/89,forthe period 29-11-1989 to 28-11-1990. 2nd respondent, in its counter in that O. P. did not dispute or deny the insurance of the vehicle bearing No. A. P. P. 4281 with it from 29-11-1989 to 28-11-1990. On the other hand, it took a specific plea that since the insured, in collusion with the petitioner in that O. P. , in order to cause loss to it, did not intimate the accident to it, it is not liable to pay the compensation, which impliedly means that it admitted the insurance of the vehicle that caused the accident with it by the date of accident i. e. , on 1-12-1989. But for the reasons best known to 2nd respondent it took a different stand, and peculiarly produced a lapsed policy and misled the Tribunal into holding that by the date of the accident it was not the insurer of the bus that caused the accident. 2nd respondent, which is established with a view to serve the victims in the Motor accidents ought not to have misled the Court by producing a lapsed policy and should not have taken inconsistent stands in the two claims which arose out of the same accident, and should not have acted like a private party. Insurance Companies should be fair to the victims, or claimants in the accident cases and also to the Courts and tribunals. The conduct of the 2nd respondent in suppressing the fact that the vehicle that caused the accident was insured from 29-11-1989 to 28-11-1990 with it, and in producing Ex. Insurance Companies should be fair to the victims, or claimants in the accident cases and also to the Courts and tribunals. The conduct of the 2nd respondent in suppressing the fact that the vehicle that caused the accident was insured from 29-11-1989 to 28-11-1990 with it, and in producing Ex. B-1 policy with a view to mislead the Court is strongly deprecated. Since Ex. A-6 shows that the bus APP 4281 that caused the accident was insured with 2nd respondent from 29-11-1989 to 28-11-1990 it is clear that 1st respondent took out a fresh policy after Ex. B-1 lapsed on 2-11-1989. The accident occurred on 1-12-1989, well within the period 29-11-1989 to 28-11-1990 and so it is clear that there was valid insurance for the bus that caused the accident with the 2nd respondent by the date of the accident. Hence, the 2nd respondent also is liable to pay the compensation payable to the appellant. The point is answered accordingly. ( 8 ) IN the result, the appeal is allowed with costs throughout and the award of the tribunal is modified and the 2nd respondent also is directed to pay the compensation payable to the appellant.