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2004 DIGILAW 485 (AP)

United India Insurance Co. Ltd v. B. Jaya Lakshmi

2004-04-15

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) RESPONDENTS 1 to 3, filed a claim petition seeking compensation of Rs. 3,00,000/- from Respondents 4 to 8 and the appellant on the ground that Siva reddy, husband of 1st respondent and father of Respondents 2 and 3 died due to injuries received by him in a collision between a car in which he was travelling, (which belonged to the 4th respondent and insured with the appellant), and the lorry belonging to the 7th respondent and insured with the 8th respondent, due to the rash and negligent driving of the drivers of the car and the lorry, 4th respondent died during the pendency of the proceedings before the tribunal and so Respondents 5 and 6 were brought on record as his legal representatives. The Tribunal, after considering the evidence on record, held that the accident occurred due to 60% negligence of the driver of the car belonging to the 4th respondent and 40% negligence of the driver of the lorry belonging to the 7th respondent, and accordingly apportioned the liability to pay the compensation of rs. 1,71,4007- arrived a between Respondents 4 to 6 and the appellant on one hand and respondents 7 and 8 on the other, rejecting the plea of the appellant that it is not liable to pay the compensation payable by respondents 4 to 6, since there is no evidence on record to show that the car of the 4th respondent was insured with it by the date of the accident, on the ground that it (appellant) failed to adduce evidence to show that the car of the 4th respondent was not insured with it by the date of accident. Hence, this appeal by the 2nd respondent before the Tribunal, who is said to be the insurer of the car of the 4th respondent. ( 2 ) THE only point for consideration is: whether the appellant who is the 2nd respondent, insurer of the car involved in the accident is liable to pay the compensation arrived at by the Tribunal as payable by Respondents 4 to 6 ? ( 3 ) POINT : Respondents 1 to 3, claimants, did not give particulars of insurance of the car of 4th respondent in Column no. 17 of the claim petition which relates to "the name and address of the Insurance company". They only stated, "vide 2nd respondent". ( 3 ) POINT : Respondents 1 to 3, claimants, did not give particulars of insurance of the car of 4th respondent in Column no. 17 of the claim petition which relates to "the name and address of the Insurance company". They only stated, "vide 2nd respondent". The Tribunal in Para 17 of its award observed:"no evidence has been let in on behalf of the second respondent to show that the vehicle is not insured with it inspite of the specific plea of the petitioner that the car of the first respondent is insured with the second respondent. "and made the appellant also liable to pay the compensation awarded against respondents 4 to 6 to Respondents 1 to 3, which ex facie is unsustainable, because the burden to show that a vehicle involved in an accident is insured with a particular insurance Company is on the claimants but on the insurer which is made party to the proceedings. So Respondents 1 to 3 who sought compensation against the appellant also are bound to furnish the particulars of the insurance to enable the appellant to find out if the particulars are correct or not and if the vehicle involved in the accident was insured with it by the date of accident or not. Without furnishing particulars of insurance merely because the claimants named an Insurance Company as the insurer of the vehicle involved in the accident, burden of proof to show that it is not the insurer would not shift to the insurer. It is not to establish that the vehicle involved in the accident was not insured with it by the date of accident for the insurer. Section 151 of the Motor Vehicle act, 1988 (for short the "act"), lays down that the owner of the Motor Vehicle has a duty to furnish the particulars of insurance if called upon to do so. So Respondents 1 to 3 ought to have ascertained from the 4th respondent about the particulars of insurance of the car that was involved in the accident. They did not do so. When there is no evidence on record to show that the car of the 4th respondent, involved in the accident, was insured with the appellant by the date of accident, no award can be passed against it. They did not do so. When there is no evidence on record to show that the car of the 4th respondent, involved in the accident, was insured with the appellant by the date of accident, no award can be passed against it. As laid down in section 149 of the Act, if Respondents 1 to 3 or 4th respondent, represented by his legal representatives-Respondents 5 and 6, are able to establish that the car that was involved in the accident was insured with the appellant by the date of accident, appellant also would be liable to pay the compensation payable by 4th respondent to respondents 1 to 3. The point is answered accordingly. ( 4 ) IN the result, the appeal is allowed in part and the Award passed by the tribunal is modified, and an Award is passed for Rs. 1,71,40007- in favour of Respondents 1 to 3 against Respondents 4 to 8 with interest at 12% per annum from the date of petition till the date of payment. From out of that amount, the liability of the respondents 4 to 6 is 60% with interest at 12% per annum from the date of petition till the date of deposit, while the liability of respondents 7 and 8 is to the extent of 40% with interest at 12% per annum. It is made clear that on either Respondents 1 to 3 or Respondents 5 and 6 establishing that the car bearing No. AXY - 3824 was insured with the appellant by the date of accident i. e. , 16-6-1990. Appellant also would be liable to pay the compensation awarded against Respondents 4 to 6. Parties are directed to bear their own costs in this appeal.