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2012 DIGILAW 701 (AP)

Oriental Insurance Co. Ltd. v. Duggi Ramanamma

2012-08-07

R.KANTHA RAO

body2012
JUDGMENT : This appeal is filed by the Oriental Insurance Company Limited challenging the order dated 11.09.2002 passed by the Motor Accident Claims Tribunal-cum-II Additional District Judge, Nellore in O.P.No.120 of 1997. 2. I have heard Sri Kota Subba Rao, learned counsel appearing for the appellant and Sri A.V.S.Satishbabu, learned counsel appearing for the respondent No.1/claimant. 3. The first respondent/claimant filed a claim case under Section 166 of the Motor Vehicles Act seeking compensation of Rs.1,25,000/-on account of the death of his father in a motor vehicle accident occurred on 13.04.1996 at Vaddipalem, Arundhatiyawada, Nellore District due to involvement of Suvega Moped bearing No. ATN 4202. 4. The learned Tribunal below after making enquiry into the claim, awarded compensation of Rs.1,12,000/-together with interest @ 9% per annum from the date of petition till the date of realisation, holding that the second respondent/owner of the said vehicle and the appellant/insurance company are jointly and severally liable to pay compensation to the first respondent/claimant. 5. The appellant/insurance company filed the present appeal challenging the finding of the Tribunal that the offending vehicle was insured with the appellant/insurance company on the date of accident and thus, it is liable to pay compensation to the claimants. 6. There is no dispute about the involvement of the Suvega Moped bearing No.ATN 4202 in the accident. In its counter filed before the Tribunal, the appellant/insurance company specifically contended that the offending vehicle was not at all insured with the appellant/insurance company. 7. In support of its contention, the appellant/insurance company examined RWs.1 to 4. RW.1 is the Senior Assistant in the Appellant/insurance company, he deposed before the Tribunal that when they contacted Regional Office, Hyderabad to find out whether the cover note No.70070 furnished by the claimant in the O.P. was in fact issued by their company, the Regional Office clarified that during the year 1996 their company had not issued any policy with five digits, but issued policy with six digits. Through RW.1, the insurance company filed a letter dated 13.11.1998-Ex.B.1 addressed by the Regional Office, Hyderabad to the Branch Office at Ongole, wherein it is mentioned that on verification of records they found that they have not supplied any cover note with five digits during the year 1996 and they have been supplied the cover notes with six digits only to their offices. The claimant in this case only mentioned the cover note No.70070 which was said to have been issued by Bhagyanagar Branch Office, Ongole. The Regional Office has clearly mentioned in Ex.B.1 letter that they have not issued the cover note No.70070. 8. The evidence of RWs.2 to 4 reveals that RW2 sold away Luna moped bearing No.ATN 4202 to one Sivarama Krishnaiah of Nellore, who in turn sold away the same to Kotaiah. RW.2 stated that at the time of selling away the offending vehicle, he handed over all the papers to Shivarama Krishnaiah. RW.3-K.Subrahmanyam stated in his evidence before the Tribunal that he purchased a second hand moped from a mechanic at Nellore by name Surender for Rs.1,000/-. The first respondent took his moped, went to Vaddipalem on some work and there he caused the accident. According to this witness, Surendra assured him that he would handover the transfer application forms sometime later since the original owner was some third party. As per this witness, it seems that before he received the papers relating to the offending vehicle, the accident took place. RW.4-Mannem Kotaiah stated in his evidence that Venkateshwarlu, the second respondent sold the moped to one Shivramakrishnaiah of Sidhout in Kadapa District and thereafter in the year 1995 he sold away the said moped to a mechanic by name Surendra, who had a mechanic shop near Survepallikaluva, Nellore for an amount of Rs.1300/-. From Surendra according to this witness, one Surbahmanyam of the same locality purchased the vehicle in or about the month of August, 1995. This witness states that 15 days later one Sankaraiah took the moped and caused accident. 9. It is crucial to notice that none of these witnesses including the second respondent, who at some point of time purchased the vehicle did not furnish the policy particulars. They did not produce any papers relating to the offending vehicle. From the evidence of RWs.2 to 4 it seems that the vehicle had changed several hands and ultimately was involved in the accident. The registration of the vehicle was not transferred to the purchasers at any point of time. The way in which the transfer of vehicle took place clearly reveals that nobody insisted upon the proper transfer of the vehicle and handing over of the papers concerning the vehicle. The registration of the vehicle was not transferred to the purchasers at any point of time. The way in which the transfer of vehicle took place clearly reveals that nobody insisted upon the proper transfer of the vehicle and handing over of the papers concerning the vehicle. Under these circumstances, it is most likely that while the vehicle was in the process of being sold to several persons, nobody cared to insure the vehicle or at least to find out whether the vehicle had already been insured with any particular insurance company. The contention of the learned counsel for the appellant-insurance company that the Suvega Moped bearing No. ATN 4202 was not insured at any point of time and the cover note No.70070 was not issued by any branch of their company was not accepted by the learned Tribunal and the tribunal held that the insurance company is liable to pay compensation to the claimants on the ground that it did not produce the relevant records pertaining to the period in question as evidence on its behalf. 10. The question therefore, arises for consideration in the present appeal is: whether the Tribunal is right in holding that the insurance company is liable to pay compensation to the claimants. 11. From the award passed by the learned Tribunal below, the view taken by it seems to be that since the claimant furnished cover note No.70070, the burden lies on the insurance company to prove that the said cover note was not issued by it and the insurance company having failed to produce the connected records showing that the said cover note was not issued by it, its contention has to be rejected as it failed to discharge its burden. Here it is relevant to notice that in support of its contention the appellant/insurance company examined four witnesses and marked Ex.B.1 and B.2. Ex.B.1 is the letter sent by its Regional Office, Hyderabad. The evidence of RW.1 and the contents of Ex.B.1 letter clearly indicate that during the relevant period the Oriental Insurance Company did not supply the cover notes with five digits, but only supplied with six digits. The claimant gave only cover note No.70070, but did not file any document showing the policy particulars of the offending vehicle. The evidence of RW.1 and the contents of Ex.B.1 letter clearly indicate that during the relevant period the Oriental Insurance Company did not supply the cover notes with five digits, but only supplied with six digits. The claimant gave only cover note No.70070, but did not file any document showing the policy particulars of the offending vehicle. Further, as already said RWs.3 and 4 were unable to give the policy particulars of the vehicle though they spoke about the sale transactions in respect of the offending vehicle. 12. Section 151 of the Motor Vehicles Act mandates that the owner of the vehicle against whom a claim is made in respect of any liability referred to in clause (b) of Sub Section (1) of Section 147 shall furnish the particulars of the insurance when demanded. In the instant case, the second respondent/owner of the vehicle was examined by the insurance company as RW.2. In his evidence he admitted to be the owner of the vehicle, but stated that he sold away the vehicle to one Shivaramakrishnaiah. He did not furnish any policy particulars of the vehicle and merely stated that he handed over the insurance policy, R.C. book and connected papers to Shivaramakrishniah to whom he sold away the vehicle. As already said that RWs.3 and 4 also did not furnish the insurance particulars of the vehicle. Thus, the appellant/insurance company tried to elicit the insurance particulars of the offending vehicle through RWs.2 and 3, but they did not disclose the particulars of the vehicle. The initial burden whether a particular vehicle was involved in the accident lies on the claimant. The claimant has to furnish the necessary information which enables the insurance company to find out whether a particular vehicle was insured with it or not. In the instant case, the claimant only mentioned the cover note number in the claim petition and did not furnish any more particulars. On verification, the insurance company says that they found that their company did not issue any cover note in five digit number during the relevant period and it issued only the cover notes with six digit number at all its offices during that particular year. 13. Under these circumstances, can it be held that it is for the insurer to positively establish that the vehicle involved in the accident was not insured with it on the date of accident. 13. Under these circumstances, can it be held that it is for the insurer to positively establish that the vehicle involved in the accident was not insured with it on the date of accident. In support of his contention that the learned Tribunal is right in holding that the insurance company by not producing the relevant records failed to discharge its burden, the learned counsel appearing for the first respondent/claimant relied on URMILLA PANDEY AND OTHERS v KHALIL AHMAD AND OTHERS ( (1994) 4 SCC 207 ). In the said case before the Supreme Court the claimant placed cover note of the year 1969 which was almost 25 years old one saying that the car involved in the accident was insured with the insurance company. The insurance company disowned the cover note, but stated before the Court that the insurance cover note is connected and the relevant documents are not traceable. The Supreme Court took the view that though the cover note placed before the Court is 25 years after the accident, may not by itself be sufficient to make the insurance company liable to pay the award money, but in view of contemporaneous evidence on record showing that the cover note was genuine, held that the insurance company could be made liable to pay the entire amount of compensation with interest to the claimants. 14. I would like to state that the situation in the present case is altogether different. In the instant case, no documents concerning the policy particulars of the offending vehicle were filed by the claimants. The cover note was not filed, but only the cover note number is mentioned in the claim petition. Even in the aforesaid decision, the Supreme Court observed that although the cover note placed before the Court after 25 years may not by itself be sufficient to make the insurance company liable to pay the compensation. But held the insurance company liable to pay compensation after recording a finding that the contemporaneous evidence on record revealed that the cover note was genuine. In the instant case, no document showing the policy particulars is filed by the claimant. He only furnished the cover note number in the claim petition. 15. But held the insurance company liable to pay compensation after recording a finding that the contemporaneous evidence on record revealed that the cover note was genuine. In the instant case, no document showing the policy particulars is filed by the claimant. He only furnished the cover note number in the claim petition. 15. Under these circumstances, I am of the considered view that the insurance company is not obliged to positively establish that the vehicle involved in the accident was not insured with it at material time. In fact, in the instant case, the insurance company adduced evidence showing that the cover note with five digit number was not issued during the relevant period by their company. Further it could be able to demonstrate that though the vehicle changed several hands, the persons concerned with the sale transactions examined by it as RWs.2 to 4 also did not furnish the policy particulars. The learned Tribunal therefore, according to me, is not right in holding that the insurance company is liable to pay compensation to the claimants since it failed to produce the relevant records to positively establish that the offending vehicle was not insured with it at relevant point of time. The learned Tribunal in my view failed to notice the fact that the claimant failed to discharge his initial burden and had fallen into error in holding that the burden shifted to the insurance company and it failed to discharge the same. 16. For the foregoing reasons, the finding of the learned Tribunal that the insurance company is liable to pay compensation to the claimant/first respondent is set aside. The appeal filed by the insurance company succeeds and the same is allowed. There shall be no order as to costs.