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2008 DIGILAW 98 (MAD)

R. Raja v. S. Rajan & Another

2008-01-08

R.BANUMATHI

body2008
Judgment :- Challenge in this appeal is the order of the Motor Accidents Claims Tribunal, Chennai in MCOP No.330/1999, awarding compensation of Rs.25,000/- only, as against the owner of the vehicle/first respondent and dismissing the claim in respect of the Insurance Company/second respondent. 2. Accident due to collision is between two autos. Case of the appellant is that on 011. 1998 @ 9 p.m., when the appellant was driving his auto bearing registration no.TN-01-C-2322 from east to west at MTH Road in front of Ramasami School, Ambattur, Chennai, another auto bearing Registration No.TSE 3485 came from the opposite direction in a rash and negligent manner, on the wrong side of the road and dashed against the appellant auto and thereby, the auto rickshaw was crushed and the appellant sustained grievous injury. The appellant had treatment for injuries sustained by him. Claiming damages of Rs.2,00,000/- for the injuries sustained and for the damages to the auto, the appellant has filed the claim Petition. 3. The second respondent/Insurance Company resisted the claim Petition contending that the accident was not due to the rash and negligent driving of the auto bearing Registration No.TSE 3485. According to the Insurance Company, permission is in the name of Ramesh and in the name of Rajan and the appellant has not impleaded proper party and therefore, the second respondent/Insurance Company is not liable to pay the compensation. The second respondent has also denied the vehicle being registered with it. 4. Before the Tribunal, stating that auto TSE 3485 was insured in Mumbai Office of the second Respondent, appellant had produced Ex.P-4 receipt No.005787. Denying insurance of the said auto TSE 3485, RW-1 – Assistant Manager of the second respondent/Insurance Company was examined in the Tribunal. RW-1 has stated that the auto TSE 3485 was not insured with New India Assurance and Ex.P-4 Receipt pertains to two wheeler registered in Erode. Referring to the evidence of RW-1 and other materials on record, the Tribunal has held that the insurance of auto TSE 3485 was not proved and held that the second respondent/Insurance Company cannot be saddled with liability. The Tribunal passed the award for Rs.27,600/- only as against the first Respondent – owner of the auto TSE 3485. 5. Referring to the evidence of RW-1 and other materials on record, the Tribunal has held that the insurance of auto TSE 3485 was not proved and held that the second respondent/Insurance Company cannot be saddled with liability. The Tribunal passed the award for Rs.27,600/- only as against the first Respondent – owner of the auto TSE 3485. 5. Assailing the order of the Tribunal, the learned Counsel for the appellant has submitted that without proper appreciation of oral and documentary evidence, the Tribunal has erroneously absolved the Insurance Company from its liability. It was further submitted that the Tribunal ought to have taken judicial notice that the second Respondent is the insurer of the vehicle in question and therefore, the plea that the vehicle TSE 3485 was not insured with the second Respondent is strange and ought not to have been accepted by the Tribunal. .6. Countering the arguments, the learned Counsel for the second Respondent has submitted that unless insurance of the vehicle is proved, liability cannot be fastened upon the second respondent/Insurance Company. But the learned Counsel for the second respondent further urged that by examining RW-1 – Assistant Manager, Insurance Company has discharged the burden cast upon it in showing that the vehicle was not insured with the second Respondent and the Tribunal has rightly absolved the Insurance Company from its liability. 7. It is not necessary to narrate the entire facts as to how the accident has occurred, who was responsible and who was rash and negligent in driving the vehicle. It is for the reason that the Tribunal has recorded the findings on the above aspects in favour of the claimant. Secondly, those findings of the Tribunal are not under challenge. 8. The main point falling for consideration is whether the Tribunal was not right in dismissing the claim as against the second respondent/Insurance Company without saddling the liability upon the second Respondent. 9. Stating that the auto TSE 3485 was insured with the second Respondent – New India Assurance in Mumbai Office, the claimant has produced Ex.P-4 xerox copy of the receipt No.005767. According to the claimant, he could not secure the policy and that he was able to furnish only the policy number. To show that Ex.P-4 receipt does not relate to auto TSE 3485, RW-1 – Assistant Manager of the second respondent/Insurance Company was examined before the Tribunal. According to the claimant, he could not secure the policy and that he was able to furnish only the policy number. To show that Ex.P-4 receipt does not relate to auto TSE 3485, RW-1 – Assistant Manager of the second respondent/Insurance Company was examined before the Tribunal. In his evidence RW-1 has stated that Ex.P-4 receipt pertains to a Scooter and the policy was issued to the said scooter from Erode Branch office. RW-1 has categorically asserted that auto TSE 3485 was not insured with the second respondent/Insurance Company. 10. Only when the insurance particulars are given by the claimant, the Insurance Company could be called upon to produce the policy and the particulars thereon. Before saddling the Insurance Company with the liability, initial burden lies upon the claimant to show that the vehicle was insured with the particular Insurance Company. The claimant must produce and prove the insurance with the second respondent/Insurance Company. On the basis of mere statement made in the claim Petition about the insurance of the vehicle and without disclosing the particulars of the policy, Insurance Company cannot be faulted for non-production of the policy. .11. No doubt, the claimant has produced Ex.P-4 receipt. The second Respondent has examined RW-1 and tried to explain that Ex.P-4 receipt was not issued for policy in respect of auto TSE 3485. It is not as if the Insurer remained tightlipped taking the stand that it is for the owner of the vehicle to produce the policy before the Tribunal. The second respondent/Insurance Company made every endeavour in examining RW-1 – Assistant Manager to substantiate their plea that Ex.P-4 does not relate to auto TSE 3485. In the absence of correct particulars, the Insurance Company cannot be faulted. 12. Contending that apart from examining RW-1, Insurance Company cannot be expected to let any further evidence, the learned Counsel for the second respondent/Insurance Company placed reliance upon 2005 (1) TNMAC 203 [United India Insurance Co. Ltd. Madras v. Senthil Kumar and ors.]. In the said case, Contessa Car which was involved in the accident was insured only for the period from 30.10.1991 to 210. 1992. The date of accident was 010. 1991 i.e. nearly 25 days prior to the date of the policy. Ltd. Madras v. Senthil Kumar and ors.]. In the said case, Contessa Car which was involved in the accident was insured only for the period from 30.10.1991 to 210. 1992. The date of accident was 010. 1991 i.e. nearly 25 days prior to the date of the policy. In the said case, RW-1 – Administrative Officer of the Insurance Company has given clear evidence that Contessa car has been insured with them only for the period from 30.10.1991 to 210. 1992. Setting aside the award of the Tribunal insofar as fastening the liability upon the Insurance Company, the Division Bench has observed that apart from examining RW-1 and adducing oral and documentary evidence, Insurance Company cannot be expected to let in further evidence. The observation of the Division Bench is apposite to the present case. 13. Contending that if the agent who issued receipt had played fraud, the Insurance Company cannot avoid its liability, the learned Counsel for the Appellant placed reliance upon 2004 ACJ 1449 [National Insurance Co. Ltd., v. M.Nandan and anr.]. In the said case, after collecting the amount, agent of the Insurance Company forged the signatures of the authorised officer and issued policy and appropriated the premium amount. In such factual matrix of the case, Division Bench of this Court has held that inspite of act of fraud committed by the agent, the Insurance Company is liable to indemnify the insured and if at all the Insurance Company has any grievance, it can only be against its agent. The said decision is entirely on a different footing and has no relevance to the facts of the present case. .14. In the case on hand, in my considered view, the Tribunal has rightly held that the compensation amount is payable only by the owner of the auto and not by the Insurance Company. Since the claimant has not proved the insurance of the auto TSE 3485 with the second Respondent, the Tribunal has rightly declined to pass the award against the second respondent/Insurance Company. This appeal is devoid of substance and is bound to fail. 15. In the result, the Civil Miscellaneous Appeal is dismissed.