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2012 DIGILAW 425 (PAT)

New India Assurance Company v. Md. Khalil Nai

2012-03-12

SHAILESH KUMAR SINHA

body2012
JUDGMENT 1. The appeal is directed against the order dated 10th of November 2009 passed by the IInd Additional District Judge-cum-Motor Vehicle Accident Claim Tribunal, Rohtas at Sasaram (hereinafter referred to as the “Tribunal”) in Motor Vehicle Case No. 57 of 2002 whereby a compensation of Rs. 1,34,5000/- was allowed with interest at the rate of 6 percent per annum from the date of the filing of the claim application till the date of payment. The appellant Insurance aggrieved by the aforesaid order preferred this appeal taking a stand that the learned Court below even though taking notice of the fact that the insurance cover note vide exhibit – B bears overwriting on the last number “7” of the cover note, allowed the compensation taking into consideration the aforesaid insurance policy. 2. The fact of accident causing death of the minor deceased by the offending truck bearing registration no. UP 65- H/4931 on 19th of February 2002 at the place known as Kargahpur, Sasaram Pukki Road near K. Oil Pump at Kargahar, P.S. Kargahar District Rohtas is not in dispute. The claimants being parents of the deceased filed the case for compensation. In support of the claim, besides the oral evidence of the claimants, as APW -1 and APW -2, father and mother of deceased one Md. Islam claiming to be the eye witness was examined as APW -3, certified copy of the FIR ( Exb-1), certified copy of charge sheet (Exb-2), postmortem report (Exb-3), road permit of the vehicle (Exb- 4), fitness certificate (Exb-5), owner book (Exb-6) and Insurance Paper (Exb-7) were brought on the record on behalf of the claimants. The appellant insurance company filed written statement stating mainly that vehicle in question was not insured with the appellant insurance company, driver had not valid license and also overwriting in cover note (Exb-B). As regard the insurance cover note, the report received from the Varanasi vide Exhibit - A was filed to show that the vehicle in question was not insured and cover note bearing No. 713557, there is over writing on the last no. “7”of the cover note. Accordingly, the claim was opposed. 3. As regard the insurance cover note, the report received from the Varanasi vide Exhibit - A was filed to show that the vehicle in question was not insured and cover note bearing No. 713557, there is over writing on the last no. “7”of the cover note. Accordingly, the claim was opposed. 3. Learned Tribunal upon considering the oral as well as documentary evidence on the record allowed the claim since the facts except that the insurance cover note was issued or not as per Exhibit – B, the rest of the facts with respect to the accident and the death of the son of the claimant were not in dispute. As regards the allegation of the appellant Insurance Company, the cover note bearing some overwriting, the Tribunal was of the view that the matter with regard to cover note as to whether it was issued or not or the same was forged, fabricated and fake is a matter to be contested by the insurance company with the owner and driver of the vehicle. However, on perusal of the documents, the Tribunal found that the vehicle was insured with the appellant New India Insurance Company at the time of accident and held the insurance company liable to pay the compensation and accordingly allowed the compensation. 4. Mr. Sanjay Singh, learned counsel for the appellant New India Insurance company submits that as the Tribunal had taken notice that there is some overwriting on the last number of the cover note (Exb- B) and as such, the Tribunal ought not to have accepted the cover note for the purpose of allowing the compensation in face of the stand of the insurance that the same was forged, fabricated and fake document. 5. Learned counsel for the claimant submits that the matter whether the document is forged, fabricated or fake cannot be decided in a summary proceeding on a petition under section 166 of the Motor Vehicle Act. It was submitted that Tribunal while allowing the compensation however, observed that the Insurance company may take the legal action against the owner and the driver of the vehicle. 6. Considering the submission of the parties and on perusal of the documents brought on record by the parties, it would appear that the Tribunal considering the documents, as referred to the above as also the oral evidence, has allowed the compensation. 7. 6. Considering the submission of the parties and on perusal of the documents brought on record by the parties, it would appear that the Tribunal considering the documents, as referred to the above as also the oral evidence, has allowed the compensation. 7. In my opinion, the Tribunal in a summary proceeding could not have decided the plea raised by the Insurance company to hold the Insurance Cover Note as is forged, fabricated and fake and has rightly observed that the Insurance Company may take legal action, if any, against the owner and driver of the vehicle. 8. In the result, in view of the reasons and discussions made above, I do not find any merit in this case, the same is accordingly dismissed. 9. The statutory amount deposited in this appeal on behalf of the Insurance Company may be remitted back to the court below for its eventual payment to the claimants. 10. The lower court record be sent down without delay.