Judgment : 1. The appeal has been filed by the insurance company challenging the liability to pay the compensation on the ground that on the date of accident, the vehicle involved in the accident, i.e.,TN-23-Z-3800, was not insured with that of the appellant. 2. One Periyapaiyan, aged 55 years, an agriculturist, earning a sum of Rs.3,000/-per month, died in an accident that took place on 19.09.2001 (early morning at 2 O'clock), which was caused by the vehicle bearing Reg.No.TN-23-Z-3800. In respect of the same, Kalasapakkam police registered a case in Crime No.359 of 2001 under Section 304 (A) IPC and the driver of the vehicle has admitted the offence, i.e., causing death by rash and negligent driving and has paid fine (Ex.A-4, judgment copy). 3. The legal representatives of the deceased filed the claim petition for compensation claiming a sum of Rs.1,50,000/-. 3.1. The claim was contested by the insurance company on the ground that the liability of the insurance company is subject to the compliance of the terms and conditions of the policy and also with reference to valid driving licence, registration certificate, permit and insurance coverage. 3.2. The Tribunal, on consideration of materials placed before it, awarded a sum of Rs.1,45,000/- as compensation and directed both the insurer and the insured to pay the compensation. 4. Contending that when there is no insurance coverage, the liability imposed on the insurance company is unsustainable, the insurance company has filed this appeal. 5. The issue to be considered is whether the vehicle involved in the accident, i.e., TN-23-Z-3800, was covered by the policy of insurance and if so, whether the insurance company is liable to pay the compensation. 6. It is the duty of the claimant to show that the vehicle, i.e., TN-23-Z-3800, was covered by the policy of insurance issued by the New India Assurance Co., the appellant and that there was a subsisting policy on the date of accident. Only then, the appellant will be liable to pay compensation on behalf of the insured to the claimant. 7. So far as the claimant is concerned, the documents filed on the side of the claimant are, the certified copy of the F.I.R., Motor Vehicle Inspector's report, post-mortem report and the certified copy of the judgment of the criminal Court. Excepting these four documents, no other document has been filed. Policy of insurance is not produced. 7.1. 7. So far as the claimant is concerned, the documents filed on the side of the claimant are, the certified copy of the F.I.R., Motor Vehicle Inspector's report, post-mortem report and the certified copy of the judgment of the criminal Court. Excepting these four documents, no other document has been filed. Policy of insurance is not produced. 7.1. Perusal of the Motor Vehicle Inspector's report reveals that in the column relating to date of expiry of the insurance certificate and the name and address of the company, what is mentioned is "insurance certificate not produced". Therefore, the documents produced on the side of the claimant did not prove that the vehicle in question had been insured with the appellant herein. 7.2. The claimant has only mentioned the policy number, that too, in the cause title. Whether that policy number pertains to the policy issued by the appellant is also not proved. The claimant has neither issued notice to owner asking him to produce the policy nor summoned him as a witness to prove the existence of the policy of insurance. 7.3. The policy number as mentioned in the cause title in the claim petition is Policy No.1/2001/02436. The learned counsel for the insurance company has produced the policy pertaining to the policy no.711800/31/01/02436. This policy relates not to the offending vehicle, but to vehicle bearing Reg.No.TN-23-D-7536 and the vehicle is TVS50 XL. Therefore, it has been proved by the insurance company that the policy that is mentioned in the claim petition does not relate to the offending vehicle. Therefore, what remains to be seen is whether there is any other evidence available to show that the vehicle in question is not covered by the policy of insurance as contending by the appellant. 8. The insurance company has examined R.W.1, Thiru.Ashok Kumar, an officer from the insurance company, to speak about the fact that the vehicle in question was not covered by the policy of insurance on the date of accident. Through R.W.1, the investigation report has also been filed as Ex.R-1. In the investigation report, the officer has specifically mentioned that there was no policy of insurance covering the period from 20.09.2001 to 19.09.2002. Admittedly, the date of accident is 19.09.2001. Probably, immediately after the accident, the owner might have chosen to take the policy for the period covering 20.09.2001 to 19.09.2002. In the investigation report, the officer has specifically mentioned that there was no policy of insurance covering the period from 20.09.2001 to 19.09.2002. Admittedly, the date of accident is 19.09.2001. Probably, immediately after the accident, the owner might have chosen to take the policy for the period covering 20.09.2001 to 19.09.2002. The investigating officer has also visited the branch office at Ranipet, to find out and verify whether there had been any coverage of insurance, prior to 20.09.2001 and he has specifically mentioned that the offending vehicle is not covered with the New India Assurance Company branch office at Ranipet, at the time of accident, i.e., on 19.09.2001. 9. Whether the evidence of the insurance company is acceptable and whether the Tribunal is justified in rejecting the evidence of R.W.1 is the issue to be considered. 9.1. The Tribunal rejected the evidence of R.W.1 on the ground that the policy number given in the claim petition has not been enquired into by the investigating officer. This defect has been now cured by the production of the policy itself and the implication of the policy has been discussed supra. It is relevant to quote the decision reported in 1990 ACC CJ 278 (Del.), Oriental Fire and General Insurance Co. vs. Prem Prakash, whereunder it has been held that in the absence of appropriate steps being taken by the claimant to get the policy on record, there is no justification to reject the evidence of the investigating officer. Relevant observation reads thus; "Had the claimant summoned the insurance policy from the owner and had the owner failed to produce the same there was justification for leading secondary evidence. In the present case, that apart, the secondary evidence led is of no evidentiary value and it does not in any way prove that at the time of the incident the offending vehicle was insured with the appellant company. There was, therefore, no earthly reason for the Tribunal to disregard the testimony of Shri S.K. Kapur, Divisional Manager of the appellant company, who has categorically stated that the offending vehicle was not insured with the company on the date of the incident." 10.1. The Tribunal has also mentioned that there is no whisper made about the non-availability of the policy in the counter filed by the insurance company. 10.2. The Tribunal has also mentioned that there is no whisper made about the non-availability of the policy in the counter filed by the insurance company. 10.2. No doubt, there is no denial in so many words that the vehicle in question is not covered by the policy. But, there is an indirect denial in view of the statement that the liability is subject to the coverage of insurance. Therefore, the non-exoneration of the insurance company on the ground that there was no specific denial in the counter also cannot be accepted. 11. Further, the owner of the vehicle, 5th respondent herein, has appeared before the Tribunal and has also filed a counter statement. The counter is vociferous about negligence and silent about the existence of policy. This omission is vital and significant and had the vehicle been really insured with the insurance company, he would have stated so in the counter. Therefore, the counter filed by the owner would clearly prove that the vehicle has not been insured with the insurance company. 12. In the absence of proof that the offending vehicle had been insured with the appellant and in the light of availability of evidence to show that the offending vehicle had not been insured with the appellant, the order passed by the Tribunal fixing the liability on the part of the insurance company is liable to be set aside. 13. Then the next question is who is liable to pay the compensation. Admittedly, the involvement of the vehicle in the accident is not under dispute. The rash and negligent driving also is not disputed, but specifically admitted fact. Therefore, it is the owner who alone is liable to pay the compensation. 14. In the result, the Civil Miscellaneous Appeal is allowed, modifying the judgment of the Tribunal dated 26.03.2003, passed in M.C.O.P.No.951 of 2001, by exonerating the appellant / insurance company from the liability to pay compensation and confirming the liability of the owner to pay the compensation to the claimants. The fifth respondent shall deposit the award amount of Rs.1,45,000/-along with interest at 9% p.a., from the date of petition till the date of deposit, within a period of two months from the date of receipt of copy of the judgment. On such deposit, the claimants would be entitled to withdraw the same. No costs. Consequently, connected C.M.P. is closed. The fifth respondent shall deposit the award amount of Rs.1,45,000/-along with interest at 9% p.a., from the date of petition till the date of deposit, within a period of two months from the date of receipt of copy of the judgment. On such deposit, the claimants would be entitled to withdraw the same. No costs. Consequently, connected C.M.P. is closed. It is represented that the insurance company has already deposited the entire amount of compensation and in view of the order exonerating the insurance company from the liability to pay compensation, the insurance company will be at liberty to withdraw the same after the expiry of the appeal time.