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2008 DIGILAW 2246 (ALL)

NEW INDIA ASSURANCE COMPANY LTD v. KUSUM LATA

2008-11-10

PRAKASH KRISHNA

body2008
PRAKASH KRISHNA, J. ( 1 ) THIS is an appeal under Section 110-D of motor Vehicles Act, 1939 against the judgments and award dated 11th of January, 1988 passed by the 11th Additional District, judge, Meerut in M. A. C. T. No. 399 of 1985 whereby and whereunder it has awarded a sum of Rs. 96,200/- has compensation amount to the claimant-respondent Company, the appellant herein with interest at the rate of 6 per cent p. a. ( 2 ) ONE Gopal Krishan alongwith his wife was travelling in a Jeep bearing registration no. DHC 5568 on 4th June, 1985. The said vehicle was being driven by Mridul Kumar, opposite party No. 1 and was owned by g. K. Mittal, opposite party No. 2 in the claim petition and was insured with M/s. New India assurance Company Ltd. , opposite party No. 3, in the claim petition. The said Insurance company has filed the present appeal. The said vehicle according the claim petition was being driven rashly and negligently and met with an accident with a Tanga. The accident took place at about 12. 30 p. m. on 4th June, 1985. It was stated that the driver of the Jeep lost control over his vehicle after seeing the tanga and he wrongly turned the Jeep towards the Tanga with the result the bamboo of the tanga hit Gopal Krishan who died on the spot. It also hit another passenger, Arun Kumar who received serious injuries and died after 3-4 days in the hospital. The deceased was aged about 30 years and was an income tax assessee. He was carrying on the business of cement stockist and was earning around rs. 2,000/- p. m. The Insurance Company filed a separate written statement denying the allegation that the accident was caused due to rash and negligent driving of the Jeep. It was pleaded that the accident caused due to Tangawala and the allegation of rash and negligent driving of the jeep or its driver was denied. However, the fact that the vehicle in question was insured with it, was admitted subject to additional pleas vide para 17 of the written statement. It was pleaded that the accident caused due to Tangawala and the allegation of rash and negligent driving of the jeep or its driver was denied. However, the fact that the vehicle in question was insured with it, was admitted subject to additional pleas vide para 17 of the written statement. In the additional pleas it was pleaded that the Insurance Company is not liable as the deceased is not a third party and that it "takes all the pleas open to it under section 95/96 of the Motor Vehicles Act", vide para 30 of the written statement. ( 3 ) ON the basis of the pleadings of the parties the following three issues were struck: 1. Whether the accident has taken place due to rash and negligent driving of mridul Kumar? 2. Whether Gopal Krishan died in this accident? 3. To what compensation the claimants are entitled and from which of the opposite parties. ( 4 ) SMT. Kusum Lata, the widow of the deceased examined herself as P. W. 1 and one kunti Devi, the mother of Arun Kumar, the another deceased passenger. Shri Mridul kumar, the driver of the Jeep was examined as D. W. 1 and the evidence of the respondents in the claim petition was closed. No evidence was led on behalf of the Insurance Company although, as noted above, it had filed written statement. It was held by the Tribunal that the accident had taken place due to rash and negligent driving of Mridul Kumar and in the said accident Gopal Krishan died and has awarded a sum of Rs. 96,200/- as compensation as against the claim of rs. 3,09,000/ -. The said award is under challenge at the instance of the Insurance company in the present appeal. Shri Avinash mishra, advocate, appearing on behalf of the appellant submits only one point that the insurance policy being an "act" policy, the tribunal could not have granted compensation against the Insurance Company as the deceased Gopal Krishan was not a "third party" within the meaning of Section 95 of the motor Vehicles Act, 1939, in support of the appeal. In this connection he has placed reliance on National Insurance Company limited v. Natthi Lal and others 1999 (1) TAC 446 (SC) and New India Assurance Co. Ltd. v. Krishan Pal Singh, 2000 (1) TAC 210 (SC ). In this connection he has placed reliance on National Insurance Company limited v. Natthi Lal and others 1999 (1) TAC 446 (SC) and New India Assurance Co. Ltd. v. Krishan Pal Singh, 2000 (1) TAC 210 (SC ). ( 5 ) THE learned Counsel for the respondents, on the other hand, supports the impugned award and has placed reliance on New India assurance Co. Ltd. v. Satyanath Hajarika and others (3) Alr 1990 Gauhati 26. ( 6 ) CONSIDERED respective submissions of the learned counsel forthe parties and perused the record it may be noted, at the very outset that the plea sought to be raised in the appeal was not raised before the Court below. From the order of the Court below it does appear that the plea of the "act" policy was set out in the written statement but was not pressed at the subsequent stage of the hearing i. e. while framing of the issues or during the course of the final hearing. This aspect of the case has not been seriously disputed by the learned counsel forthe appellant. However, he submits that since the above plea is a legal plea, it can be raised in the present appeal. As noted above, no oral evidence whatsoever was led by the Insurance Company in this regard. On examination of the record of the Court below, it is apparent that Insurance Company has not cared to file copy of the policy containing the terms and conditions thereof. A true copy of the cover note attested on its behalf has been filed by the appellant in respect of the vehicle in question under the head Scheduled of premium the following sentence has been mentioned: "act only Rs. 150. " ( 7 ) ON this basis the above argument has been sought to be built up by the appellant. The Apex Court has deprecated the practice of not filing of the insurance policy by the insurance Company long back in National insurance Company, New Delhi v. Jugal kishore AIR 1988 SC 719 : 1988 (1) TAC 418. Para 10 is reproduced below: "before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the tribunal and even before the High Court in appeal. Para 10 is reproduced below: "before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act was invariably not possessed of either the policy or a copy thereof. This Court was consistently emphasized that it is the duly of the party which is in possession of a document which would be helpful in doing justice in the cause in produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duly 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 claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy alongwith its defence. Even in the instant case had it been done so at that 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 overemphasized. ( 8 ) NO witness was called to prove it. On an examination of the record it appears that there is no endorsement of admission or denial by any party how the said over note has come on record, is difficult to decipher from the record. ( 9 ) IN absence of the insurance policy and particularly that the above plea was not pressed at appropriate stage i. e at the stage of the Tribunal, it is not desirable to permit the appellant to raise the said plea at this distance of the time. ( 9 ) IN absence of the insurance policy and particularly that the above plea was not pressed at appropriate stage i. e at the stage of the Tribunal, it is not desirable to permit the appellant to raise the said plea at this distance of the time. In absence of the insurance policy, the plea sought to be raised cannot be adjudicated upon due to lack of proper material on record. The case was brought before the tribunal by the Insurance Company that there was no negligence on the apart of the driver of the insured Jeep. The said plea has been negated by the Tribunal and it ha attained finality as the same has not been challenged in this Court. ( 10 ) IN National Insurance Co. Ltd. v. Natthi lal and others (supra ). The controversy involved therein was totally different. In that case the Insurance Companys stand that its liability was restricted to a sum of s. 15,000/-under the policy was not accepted up to the high Court stage on the ground that one column was left blank in the insurance policy. Disagreeing with the High Court, the Apex court has held on the basis of the insurance policy which was exhibited that the policy was in respect of seven persons and one driver. A premium of Rs. 180/- was paid towards the liability to public risk. It was held that the mere fact that the column against unlimited liability was not filed, will not automatically lead to the inference that the liability was unlimited in absence of any special premium paid towards that claim. The above ratio is not applicable to the facts of the case on hand. Here, the controversy involved is totally different. Itwas neither pleaded nor proved that the liability of the Insurance Company was limited to a specified sum. Moreover, as noted above, the copy of the insurance policy was not produced to show its terms and conditions. On the other hand, a copy of the cover note was produced. It has also not exhibited nor any witness has come forward on behalf of the Insurance company to prove the said insurance cover. Similarly, the ratio laid down in New India assurance Co. Ltd. v. Krishnan Pal Singh and other (supra) is not attracted to the facts of the present case. It has also not exhibited nor any witness has come forward on behalf of the Insurance company to prove the said insurance cover. Similarly, the ratio laid down in New India assurance Co. Ltd. v. Krishnan Pal Singh and other (supra) is not attracted to the facts of the present case. Therein it was admitted that the policy was "act Policy" -which is not so here. ( 11 ) APART from the above, on the facts of the present case, it is borne out from the record that the deceased was a third person qua the vehicle in question. He was travelling therein as a passenger and indisputably, the said vehicle was insured at the relevant point of time with the present appellant. Plea was raised that the Insurance Company is not liable to pay any compensation as the deceased was a gratuitous passenger and was not there for hire or reward. The said plea has also been raised in the memo of the appeal. But in absence of any evidence to substantiate the said plea, it is not proved that the deceased was travelling s a gratuitous passenger. Nor any such issue was raised before the Tribunal. It thus, follows that in absence of any contrary material, the deceased was there in the ill-fated vehicle for hire or reward and succumbed to the injuries due to its rash and negligent driving by its drive (Mridul Kumar ). No attempt was made by the learned Counsel to challenge he findings recoded by the Tribunal on the question of negligence on the part of the driver or on the quantum of the compensation awarded to the claimant-respondents. ( 12 ) IN view of the above discussion, I find no merit in the appeal. The appeal is dismissed wit costs. .