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2013 DIGILAW 2650 (BOM)

New India Assurance Co. Ltd. v. Gunji Chakramma

2013-12-21

B.R.GAVAI

body2013
Judgment 1. The appellant has approached this Court being aggrieved by the judgment and order dated 6.6.2009 passed by the learned Motor Accident Claims Tribunal, Panaji thereby holding that the respondent nos. 1, 2 and 3 herein (Original claimants) were entitled to receive the total compensation of Rs.7,56,760/- and directing the respondent nos.1, 3 and 4 in the claim petition to pay the said amount jointly and severally to the claimants alongwith interest of 9% per annum from the date of filing of the petition till the date of entire payment. 2. Parties shall be hereinafter referred to as they appears in the claim petition. 3. The facts which are giving rise to the present appeal are as under:- On 15.4.1994 at around 11.15 hours the deceased was riding scooter No. GDK-923 and was traveling from Santa Cruz towards Panaji and at that time two youngsters respondent no.2 being the rider, came from opposite direction on Yamaha motorcycle No. GDK-661, owned by the respondent no.4 and insured with the respondent no. 3 in a rash and negligent manner and lost control and dashed against the scooter of the deceased, who was thrown away and suffered several injuries, major being head injury. On 17.4.1994 deceased succumbed to injuries who was undergoing treatment at GMC. Accordingly, the claim petition came to be filed against respondent nos. 1 to 4 in the claim petition, contending therein that deceased was 36 years old at the time of accident and was working as a chargeman, Department of Electrical Engineering, Government Polytechnic, Panaji Goa and last drawn salary by him is Rs.4450/- on 31.3.1994. It was further stated in the petition that claimant no.1 was unemployed though she may be entitled to secure a Government job as per her status of educational qualification and the claimant no. 2 was mentally quasi retarded and not fully grown to her mental development and as such was a liability. It was stated that the claimant no.1 would be entitled to draw family pension of about Rs.1,000/-. It was further stated that the deceased did not have any savings and on the contrary was having loans to the tune of Rs.50,000/- which liability had now shifted upon the claimants. 4. The respondent nos. 1 and 2 in their Written statements stated that the respondent no. It was further stated that the deceased did not have any savings and on the contrary was having loans to the tune of Rs.50,000/- which liability had now shifted upon the claimants. 4. The respondent nos. 1 and 2 in their Written statements stated that the respondent no. 2 was neither the owner nor rider of the vehicle at the relevant time and hence was not a necessary party. He has further stated that they were employed with the respondent no. 4 who was engaged in the business as cable operator and had gone to Merces for installing dish antenna and after completing the work were returning back. He has further stated that the respondent no.1 was riding the motorcycle on his left side of the road slowly and on the right of the road there was paddy spread for drying, covering more than half of the road and the deceased came towards the respondent no.1 with the scooter to the right side in order to avoid paddy. He has further stated that respondent no.1 tried to stop the motorcycle by applying brakes and the claimants came on the wrong side and dashed the motorcycle on the road along with his scooter. It was thus claimed by the respondent nos. 1 and 2, that the respondent no. 1 was neither rash nor negligent. 5. The respondent no. 3 (who is an appellant herein) filed written statement alleging that the policy of insurance bearing No. 3111150100298 was issued in favour of the respondent no. 4, covering the Yamaha motorcycle No. GDK-661 and that the said policy was valid from 3.15p.m of 15.4.1994 to midnight of 14.4.1995 and thus at the time of the alleged accident i.e. at 11.15a.m on 15.4.1995, the respondent no. 3 was not on risk. It was submitted by the respondent no. 3 that said vehicle was insured with the respondent no. 3 after the alleged accident. The respondent no. 3 therefore denied the liability to pay any compensation and generally denied the allegations made by the claimants. 6. The respondent no. 4 in his Written Statement adopted the written statement filed by the respondent nos 1 and 2 and further alleged that the said motorcycle was insured with the respondent no. 3 for the period from 15.4.1994 to 14.4.1995. 7. 6. The respondent no. 4 in his Written Statement adopted the written statement filed by the respondent nos 1 and 2 and further alleged that the said motorcycle was insured with the respondent no. 3 for the period from 15.4.1994 to 14.4.1995. 7. The learned Tribunal framed following issues and answered them as under:- ISSUES FINDINGS 1 Whether the claimants prove that the accident took place on account of the rash and negligent driving of Yamaha motorcycle bearing No. GDK-661 by respondent no.1? In the affirmative 2 Whether the claimants prove that the said accident caused the death of husband of the claimant no.1? In the affirmative 3 Whether the claimants prove that they are entitled to recover compensation of Rs.10,00,000/-? Partly in the affirmative. 4 Whether the respondents no. 1 and 2 prove that the claimant was driving his motorcycle fast and dashed his motorcycle and fell on the road with scooter? In the negative. 5 Whether the respondent no. 3 proves that the vehicle was not insured at the time of the accident. In the negative. 8. Learned Tribunal thereafter passed aforesaid award. Being aggrieved by the said award, the respondent no.3 has approached this Court. 9. The appellant/original respondent no. 3 has basically challenged the findings of the learned Tribunal only on issue no. 5 i.e. as to whether the respondent no. 3 proves that the vehicle was not insured at the time of the accident? As such, the arguments advanced before me were restricted by the learned counsel only with regard to the finding on the said issue. 10. The learned counsel appearing on behalf of the appellant submitted that the learned Tribunal has grossly erred in holding that the vehicle owned by the original respondent no.4 was insured with the appellant. Learned counsel for the appellant submitted that the learned Tribunal on the basis of the evidence that was led, ought to have come to the conclusion that vehicle in question was not insured with the appellant. Learned counsel submitted that from the evidence led on behalf of the parties, learned Tribunal ought to have come to the conclusion that the respondent no. 4 had purchased the policy at 3.15p.m after the accident had taken place. Learned counsel further submitted that the learned Tribunal ought to have taken into consideration that respondent no. Learned counsel submitted that from the evidence led on behalf of the parties, learned Tribunal ought to have come to the conclusion that the respondent no. 4 had purchased the policy at 3.15p.m after the accident had taken place. Learned counsel further submitted that the learned Tribunal ought to have taken into consideration that respondent no. 4 has not stepped into the witness box but on his behalf his wife has entered into the witness box. Learned counsel therefore submitted that the learned Tribunal ought to have drawn adverse inference against the respondent no. 4 and held that policy was not valid policy. 11. Learned Counsel for the claimants as well as other respondents submitted that the findings recorded by learned Tribunal in that regard is on the basis of proper appreciation of the evidence and warrants no interference. 12. In view of the rival submission, following point arises for consideration:- POINT FOR DETERMINATION ANSWER As to whether the learned Tribunal was justified in holding that the respondent no.3 had failed to prove that the vehicle was not insured at the time of incident? No 13. The appellant has examined RW4 Miss M. M. Borkar, who had joined as Senior Manager Regional Office-3 of respondent no. 3 on 9.4.2006, Smt. Alzira Noronha as RW4, the then Administrative Officer attached to Panaji Branch and one Mr. Ibrahim Beig as RW6 whereas respondent no. 4 has examined RW3 Mrs. Julia Monteiro his wife as his constituted power of attorney holder. 14. RW4 Ms. M. M. Borkar has stated in her affidavit in evidence that third party policy No. 3111150100298 in favour of John F. D'Silva, respondent no. 4 covering the motorcycle No. GDK-661 for the period from 3.15p.m on 15.4.1994 to midnight of 14.4.1995 was issued by her and the company was not liable to indemnify any of the respondents and was not liable to pay any compensation to the claimants as the company was not on risk at the time of the alleged accident which occurred on 11.15a.m on 15.4.1994. RW4 had produced true copy of the insurance policy as Exh. 68 wherein effective date of commencement of the insurance is mentioned as 3.15p.m on 15.4.1994 to midnight on 14.4.1995. 15. RW3 Mrs. Julia Benecia Monteiro, who is the wife of respondent no. 4(insured)has deposed as constituted power of attorney of respondent no. 4. She has stated that motorcycle no. RW4 had produced true copy of the insurance policy as Exh. 68 wherein effective date of commencement of the insurance is mentioned as 3.15p.m on 15.4.1994 to midnight on 14.4.1995. 15. RW3 Mrs. Julia Benecia Monteiro, who is the wife of respondent no. 4(insured)has deposed as constituted power of attorney of respondent no. 4. She has stated that motorcycle no. GDK-661 of Yamaha make is owned by Mr. John D'Silva and same was insured with respondent no. 3 at the time of accident and policy no. 3111150100298 was valid from 15.4.1994 to 14.4.1995. She she has produced original insurance policy at Exh. 64. 16. Learned Tribunal found that there were marked differences on the copy of the policy, produced by the appellant at Exh. 68 and the original at Exh. 64 produced by witness of respondent no. 4. It was found that policy at Exh. 68 the name of the motorcycle was wrongly spelled out in handwriting as “Yahmaha” whereas in policy at Exh. 64 there was white ink in column no. 3 upon which the name is typed as “Yamaha”. The Learned Tribunal further found that in policy at Exh. 68, in the column meant for the year of manufacture, number “7” out of the year “1987” has been erased and that the same erasion has been admitted by RW3. It was further found that in the policy at Exh. 64, there was white ink above the last number in column no. 4 and the year typed as 1987, number “7” being typed above the line of 198. It was further found that policy at Exh. 68 in the column meant for effective date of commencement of insurance for the purpose of the Act, the dates, months and years are typed as 15.4.94 and 14.4.95, but the timing from 3.15 p.m is handwritten In the policy at Exh. 64 there was white ink in the space meant for timing of the commencement of insurance policy. In the policy at Exh. 68 only the initials of the duly constituted attorney of the company appears at the foot but in the policy at Exh. 64, the full signature of the duly constituted attorney of the company appears. Learned Tribunal found that RW4 Senior Manager of Insurance company could not explain as to why the word “Yahmaha” has been handwritten in Exh. 68 but original policy at Exh. 64, the full signature of the duly constituted attorney of the company appears. Learned Tribunal found that RW4 Senior Manager of Insurance company could not explain as to why the word “Yahmaha” has been handwritten in Exh. 68 but original policy at Exh. 64 the same word as “Yamaha” has been typed. Learned Tribunal further found that it was for the respondent no. 3 to prove as to how manipulation at Exh. 64 were done by producing original carbon copy of the policy at Exh. 64. 17. RW5 Smt. Alzira Noronha, who was the Administrative Officer at the relevant time of the insurance companyidentified her signature at point A on Exh. 64. She stated that the time of policy as written at Exh. 64 has been erased and tempered with. She stated that there were no erasures on the said policy when she had issued the same and signed the same. PW5 being shown Exh. 68 stated that the same is xerox copy of the original. However, the actual office copy was neither produced by RW4 nor through RW5. This witness further stated that nothing was handwritten in the original copy of the policy though according to her the details of the policy were type written but in the xerox copy which was at Exh. 68 identification of the vehicle and timing were handwritten. RW5 stated that same were in handwriting of Mr. Ibrahim Beig and said Ibrahim Beig was not authorised to make any change in the policy. In her cross examination RW5 stated that office copy at Exh. 68 is in the vigilance cell of the Insurance Company. She further admitted that if the office wants the carbon copy, the office could have requested vigilance cell to send it back. Learned Tribunal therefore found that though it was possible for the appellant to get the original carbon copy, respondent no. 3 had produced xerox copy of the office copy which is found to be tempered with. Learned Tribunal further found that though on an application made by the claimants at Exh. 73 for a direction to respondent no. 3 to produce on record carbon copy of the insurance policy, the Court by order dated 26.6.2007 had directed the insurance company to produce carbon copy of the insurance policy, respondent no. 3 has failed to produce the same. 73 for a direction to respondent no. 3 to produce on record carbon copy of the insurance policy, the Court by order dated 26.6.2007 had directed the insurance company to produce carbon copy of the insurance policy, respondent no. 3 has failed to produce the same. Learned Tribunal therefore relying upon the judgment of the GopalKrishnaji Ketkar Vs. Mohamed Haji Latif: ( AIR 1968 S.C. 1413 ) in which it was held that an adverse inference is required to be drawn where a party in possession of best evidence withholds the same. 18. RW6 who was the record-clerk at the relevant time, has stated in his affidavit in evidence that respondent no. 4 had come to branch office of respondent no. 3 on 15.4.1994 at 3.00p.m and told him that he needs to insure his motorcycle No. GDK-661 for third party risks and RW6 told him to pay Rs.40/- for the same and accordingly the third party policy was issued on 15.4.1994 to midnight of 14.4.1995. He has further stated that on the same day in the evening said John D'silva came to his residence and told him that his said motorcycle was involved in the accident in the morning at 11.15 a.m at Santa Cruz and told him to erase the time 3.15 p.m stated in the office record of the said policy and also correctly write the name of the vehicle as Yamaha and year of the manufacture as 1987. He further stated that after about 4 days he erased the time from the office record of the policy by putting white ink over the time at 3.15.p.m. He stated that after some months company received a copy of the claim petition in respect of the accident to the said vehicle No. GDK-661 and fearing office trouble for him for erasing the time, he wrote the timing 3.15 again on the office copy of the policy in his own handwriting. 19. Learned Tribunal found that the evidence of PW6 was not trustworthy and he was examined by way of an afterthought to patch up the version given by RW5. Learned Tribunal further found that admittedly three copies of the insurance policy attached to which are copies of the proposal forms are made and one set is kept in branch office, second set is for regional office at Mumbai and the third set is for Divisional Office at Panaji. Learned Tribunal further found that admittedly three copies of the insurance policy attached to which are copies of the proposal forms are made and one set is kept in branch office, second set is for regional office at Mumbai and the third set is for Divisional Office at Panaji. Learned Tribunal therefore found that though third set which was at Regional Office at Mumbai could have been produced by the respondent no. 3, was not produced. Learned Tribunal found that it was admitted in the evidence of the appellant that along with insurance policy, the company also issues a certificate of policy but the same was not produced by the appellant. 20. Learned Tribunal further found that neither RW5 nor RW6 has produced any document on the alleged inquiry conducted against RW6 and alleged punishment given to him nor they have produced any document of voluntary retirement by RW6. Learned Tribunal found that though claimants had prayed for direction to respondent no. 3 to produce documents as stated by RW5 regarding action taken against respondent no. 6, the said prayer was rejected by Tribunal since the relevancy of the same was not spelt out in the application. Learned Tribunal however found that if it was case of the respondent no. 3 that any such action was taken against respondent no. 6, it was for the respondent no. 6 to produce such document. On the contrary it was found that RW6 did not have any document of suspension or punishment since he has retired. Learned Tribunal therefore found that there was reasonable doubt whether really RW6 was suspended or punished or whether had really retired voluntarily or whether in collusion with his master, he has given false evidence. Learned Tribunal therefore on the basis of the judgment of the Apex Court in the case of New India Assurance Company Ltd. Vs. Ram Dayal (1990) 2 S.C.C. 680 held that timing of the insurance commencement is deemed to be not mentioned in the insurance policy but the date is mentioned as from 15.4.1994 till midnight of 14.4.1995, learned Tribunal therefore found that since accident took place on 15.4.1994 at 11.15 p.m. it is bound to be presumed that insurance policy became effective, as such, the respondent no. 3 could not run away from his liability. 21. 3 could not run away from his liability. 21. It can thus be clearly seen that though it is the case of the appellant that policy was tempered with, inspite of an order passed by learned Tribunal to produce the carbon copy and inspite of giving ample opportunity in that regard, appellant had failed to produce the same. In that view of the matter, it cannot be said that adverse inference which has been drawn by learned Tribunal has not been correctly drawn. In that view of the matter, I find that learned Tribunal has rightly come to the conclusion that respondent no. 3 has failed to discharge the burden that policy was not valid. 22. In the result, the appeal is without any merits and as such it is dismissed.