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2010 DIGILAW 4619 (MAD)

New India Assurance Co. Ltd v. S. Sivapathi

2010-10-20

S.MANIKUMAR

body2010
Judgment :- 1. In an accident which occurred on 19.01.2001, one Mr. G. Subramani died. His legal representatives claimed compensation of Rs.10,00,000/-. The Appellant-Insurance Company, disputed that the vehicle bearing Regn. No.TSG 6996 was not insured with them, at the time of accident. The 1st Respondent, the owner of the vehicle has remained ex parte, before the Tribunal. 2. Wife of the decreased examined herself as P.W.1 and P.W.2 is the eye-witness. Ex.P1 dated 19.01.2001, certified copy of the FIR, Ex.P2 dated 20.01.2001, certified copy of M.V.I. Report, Ex.P3, certified copy of the Post-mortem Certificate and Ex.P4, certified copy of judgment in STC No.1400/2001 of learned Judicial Magistrate No.1, Cuddalore were marked on the side of the Claimants/Respondents 1-7. No oral or documentary evidence was let in on behalf of the Appellant. The Tribunal framed two issues. (1) Whether the accident has occurred due to rash and negligent act of the car driver? (2) Whether the Petitioners are entitled to compensation. If so, whet amount? 3. Though, the Appellant-Insurance Company has disputed that the vehicle was not insured at the time of accident no specific issue has been framed by the Tribunal regarding the liability of the Insurance Company to pay compensation. On evaluation of pleadings and evidences, the Tribunal held that the Driver of the vehicle owned by the 8th Respondent in this Appeal as responsible for the accident and consequently, held the Appellant Insurance Company as liable to pay compensation. Being aggrieved by the liability fastened on the Appellant-Insurance Company, without there being any adjudication as to whether the Company is liable to pay compensation, in the absence of Insurance particulars furnished by the Claimants/Respondents 1-7, the Company has preferred this Appeal. 4. Inviting the attention of this Court to Cloumn No.16 of the Claim Petition made by the Respondents, learned Counsel for the Appellant submitted that no details of the Insurance Policy of the offending vehicle bearing Reg. 4. Inviting the attention of this Court to Cloumn No.16 of the Claim Petition made by the Respondents, learned Counsel for the Appellant submitted that no details of the Insurance Policy of the offending vehicle bearing Reg. No.TSG 6996 were furnished by the Claimants and when the Insurance Company, in their Counter Affidavit, at Paragraph No.4, has specifically denied that the vehicle alleged to have been involved in the accident was not insured with them, at the time of accident, the Tribunal has grossly erred in mulcting the liability on the Insurance Company, on the sole ground that a Petition under Section 170 of Motor Vehicles Act, 1988, had been filed seeking permission from the Tribunal to contest the case on all available grounds that are open to the owner of the vehicle as per the statute. 5. He further submitted that unless the Claimants/Respondents furnish the relevant particulars atleast the number and date of Insurance Policy and the other particulars of the Insurer, it would be very difficult to verify as to whether the offending vehicle was insured with any other branches in the State. 6. According to the learned Counsel, at the time of accident, there was no such machinery or technological support systems to ascertain the details from all the branches in the State of Tamil Nadu and at best, they can verify only from the branch in the jurisdiction where the accident has occurred. He further submitted that in the case on hand, after due verification, with the branch at Cuddalore, it was ascertained that the offending vehicle was not insured with their Company and therefore, they have discharged the burden and duty cast on them. 7. Placing reliance on a Division Bench judgment of this Court in United India Insurance Company Limited, Chennai v. R. Venkatesan and another, 2003 (1) LW 31 , learned Counsel for the Appellant-Insurance Company submitted that when the details of Policy, expiry date and address of the Insurance Company are given in the Application, it would facilitate the Insurance Company to verify as to whether the offending vehicle was insured or not. In the absence of any such details, it would not be possible for a Company to verify from all Branches. In the absence of any such details, it would not be possible for a Company to verify from all Branches. In the above said circumstances, he submitted that the Tribunal has grossly erred in mulcting the liability on the Appellant-Insurance Company, on the sole ground that an Application under Section 170 of Motor Vehicles Act, had been filed. 8. Per contra, learned Counsel appearing for the Claimants/Respondents 1-7 submitted that though the Claimants/Respondents 1-7, have not furnished full particulars in the Claim Petition regarding the date of Policy, date of commencement, etc., but however, at Column No.16, they have categorically stated that the vehicle was insured with the Appellant-Insurance Company and in such circumstances, the Appellant Insurance Company could have ascertained the details of the Insurance of the offending vehicle with other branches, if not insured in Cuddalore branch. He also submitted that the Appellant-Insurance Company could have called for the details from the owner of the vehicle by taking appropriate steps and in the absence of the above, they have failed to discharge the burden cast on them and in such circumstances, the finding of the Tribunal fixing the liability on the Appellant, Insurance Company cannot be said to be manifestly illegal. 9. Referring to the objects of the Motor Vehicles Act and the ignorance of most of the Claimants/Respondents, the accident victims in furnishing the details required in the Claim Petitions, he submitted that the Claimants/Respondents 1-7, have lost their sole breadwinner in the family and therefore, the award may not be disturbed at this juncture. 10. Heard the learned Counsel for the parties and perused the materials available on record. 11. Admittedly, the owner of the offending vehicle had remained ex parte before the Tribunal. At column No.16 of the Application filed under Section 166(1) of the Motor Vehicles Act, regarding the details of the name and address of the Insurer of the vehicle, the Claimants/Respondents 1-7 have stated as follows: “The New Indian Assurance Co. Ltd., ArcotWoodlands Building, No.1, Bharathi Road, Cuddalore-1. Policy No.(Not Known to the Petitioner)” 12. According to the Claimants/Respondents 1-7, the vehicle was insured with the Appellant-Insurance Company. Whereas, at paragraph No.4 of the Counter Affidavit of the Insurance Company, the same has been specifically denied stating that the vehicle in question was not insured with them, at the time of the accident. Policy No.(Not Known to the Petitioner)” 12. According to the Claimants/Respondents 1-7, the vehicle was insured with the Appellant-Insurance Company. Whereas, at paragraph No.4 of the Counter Affidavit of the Insurance Company, the same has been specifically denied stating that the vehicle in question was not insured with them, at the time of the accident. Therefore, as rightly contended by the learned Counsel for the Appellant-Insurance Company, the Tribunal ought to have framed a specific issue as to whether the offending vehicle was insured with the Appellant-Insurance Company at the time of accident and consequently whether they are liable to pay compensation or not. 13. As per the statutory provisions, the Insurance Company is entitled to raise all the defences that are permitted under Motor vehicles Act, 1988, regarding the negligence and quantum in an Application under Section 166 of the Motor Vehicles Act, claiming compensation. Apart from the plea, that the vehicle was not insured at the time of the accident, it is also open to the Company to raise other defences such as the driver of the offending vehicle did not posses a valid driving licence, the vehicle did not have permit at the time of accident. Merely, because the Appellant-Insurance Company has filed an Application under Section 170 of the Motor Vehicles Act, 1988, to contest the case on all available grounds, it cannot be construed to be an admission on the part of the Company that the vehicle was insured at the time of the accident, when there was a specific denial to that effect. 14. In United India Insurance Company Limited, Chennai v. R. Venkatesan and another, 2003 (1) LW 31 , the Claimants therein, in Column Nos.9 and 16 of the Application have furnished the name and address of the Police Station under whose jurisdiction the accident took place and besides, they also furnished the name and address of the Insurer, Policy Number and the date of the commencement of the Policy. However, the Insurance Company therein, denied that the vehicle did not possess a valid insurance in the name of the owner, at the time of the alleged accident. However, the Insurance Company therein, denied that the vehicle did not possess a valid insurance in the name of the owner, at the time of the alleged accident. To that effect, they also examined an Assistant of the Insurance Company as R.W.1 and after considering, the oral testimony of R.W.1, wherein he had admitted that the Company did not make any search and verify their records as to whether the Policy mentioned in the Claim Petition was issued by them or not, the Division Bench held that the Claimants therein should discharge their burden by furnishing available particulars and that the Insurance Company could have taken more efforts or interest to ascertain the information furnished in the Claim Petition. 15. In that context, the Division Bench held that if the details of the Policy, the commencement and expiry date, particulars of the Insurance Company are given, then it would not be difficult for the Insurance Company to make a search in their office and produce necessary evidence to the effect that on that particular date, no policy was issued to the vehicle in question. The Division Bench also observed that in case, the particulars furnished by the Claimants are not sufficient, the Company could have ascertained further particulars from the Investigating Officer. Going through the details of the particulars furnished by the Claimant therein, the Division Bench held that it cannot be said that the Claimant had failed to furnish the required details and consequently failed to discharge the burden. So saying, the Division Bench confirmed the order of the Tribunal mulcting the liability on the Insurance Company to pay compensation. 16. On the facts of the above case and having regard to the mandatory conditions stipulated under the Motor Vehicles Act, 1988 and the Tamil Nadu Motor Vehicles Accident Claims Tribunal Rules, 1989, the Division Bench enumerated certain guidelines in the adjudication of Claim Petitions. Clause 5 and 6 of the guidelines may be relevant for the purpose of this case and they are produced hereunder: “Clause v: The Claimants are duty bound to furnish correct registration number of the vehicle, full insurance particulars as furnished by the Police Officer/Investigation Officer. Clause 5 and 6 of the guidelines may be relevant for the purpose of this case and they are produced hereunder: “Clause v: The Claimants are duty bound to furnish correct registration number of the vehicle, full insurance particulars as furnished by the Police Officer/Investigation Officer. If details are wanting at the time of filing of the Claim Petition, it is the duty of the Claimants to ascertain all those particulars either from the Police Officer/Investigation Officer or from the Motor Vehicle Inspector of the Transport Department or from the Tribunal having jurisdiction and mention those particulars in the Claim Petition. Clause vi: If the Insurance Company feels that the particulars furnished in the Claim Petition are not correct or not sufficient, it shall ascertain the necessary details from the Police Officer/Investigation Officer concerned or from the office of the Motor Vehicle Inspector, and prove its case by positive evidence.” 17. In the case on hand, admittedly, the Claimants/Respondents 1-7 have not furnished any particulars of the Insurance Policy and it is bereft of details. As rightly contended by the learned Counsel for the Appellant Insurance Company, it is the duty of the Claimants to furnish correct registration number of the vehicle, full Insurance particulars as furnished by the by the Police Officer/Investigation Officer. Though it is contended by the learned Counsel for the Claimants/Respondents 1-7 that they were ignorant of the details required to be furnished in the Application, no steps have been taken by them to verify the Insurance particulars and when the Insurance Company after due search in their office at Cuddalore has positively denied that the offending vehicle was not insured with them at the relevant point, they should have taken steps to get the particulars to prove that the vehicle was insured with the Appellant-Company. As rightly contended by the learned Counsel for the Appellant-Insurance Company, at that relevant time, it may not be possible for the Insurance Company to ascertain from all the branches in the State of Tamil Nadu to verify as to whether the vehicle was insured with their branch or not. If some particulars had been furnished in the Claim Petition, the Insurance Company could have made efforts to ascertain the necessary particulars from the Police Officer/Investigation officer concerned or from the office of the Motor Vehicles Inspector. If some particulars had been furnished in the Claim Petition, the Insurance Company could have made efforts to ascertain the necessary particulars from the Police Officer/Investigation officer concerned or from the office of the Motor Vehicles Inspector. In the case on hand, as rightly contended by the learned Counsel for the Appellant Insurance Company, it is bereft of details and therefore, to expect the Appellant-Insurance Company to ascertain the details, is not proper. 16. On the facts of this case, this Court is of the considered view that merely because the Appellant-Insurance Company had taken out an Application under Section 170 of the Motor Vehicles Act, 1986, to contest the Claim Petition and raise all the defences that are open to them under the statute and when the owner of the vehicle had remained ex parte, it cannot be construed that it is the burden of the Insurance Company to prove the negative, i.e., that the vehicle was not insured with them at the time of accident. The Claimants have failed to establish that there was valid Insurance Policy, on the date of accident and in such circumstances, the Insurance Company is not statutorily liable to pay compensation to the victims. In view of the above, the liability fastened on the Appellant-Insurance Company, to pay the compensation is set aside. 19. During the course of arguments, it is brought to the notice of this Court that the entire amount awarded by the Tribunal with accrued interest had already been deposited to the credit of M.C.O.P.No.189 of 2001 on the file Motor Accidents Claims Tribunal and Additional District Judge cum Chief Judicial Magistrate, Cuddalore and that pursuant to orders of this Court in C.M.P. No.2042 of 2004 dated 05.12.2005, 50% of the amount had been permitted to be withdrawn by the Claimants/Respondents 1-7. He also submitted that the Claimants/Respondents 1-7 have been permitted to withdraw the accrued interest periodically. 20. Having regard to the fact that the Claimants/Respondents 1-7 have lost the sole breadwinner in the family and the passage of time, since 2001, this Court in the interest of justice, deems it fit not to make any reversal of the interim order. He also submitted that the Claimants/Respondents 1-7 have been permitted to withdraw the accrued interest periodically. 20. Having regard to the fact that the Claimants/Respondents 1-7 have lost the sole breadwinner in the family and the passage of time, since 2001, this Court in the interest of justice, deems it fit not to make any reversal of the interim order. However, in view of setting aside of the judgment and decree made in M.C.O.P.No.189 of 2001 dated 21.02.2003, the Appellant-Insurance Company is permitted to make necessary Application for withdrawing the balance amount with accrued interest lying in the Bank deposit. If any such Application is made, the same shall be considered and appropriate orders be passed thereon. It is also open to the Appellant-Insurance Company to seek for recovery of the amount already paid, from the owner of the offending vehicle. 21. With the above direction, the Civil Miscellaneous Appeal is allowed. No costs.