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2014 DIGILAW 423 (JHR)

New India Assurance Co. Ltd. v. Saida Khatoon

2014-03-25

DHRUB NARAYAN UPADHYAY

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JUDGMENT : Dhrub Narayan Upadhyay, J. 1. This appeal has been filed against the judgment and award dated 3rd December, 2003 passed by the learned 1st Additional District Judge-cum-Motor Accident Claims Tribunal, Jamshedpur, in connection with Compensation Case No. 15 of 1993 whereby the Insurance Company has been directed to satisfy the awarded amount with interest. Facts of the case, in brief, is that on 27th November, 1992 an accident took place near Sakchi, Gurdwara Gate at Kali Mati Road, P.S. Sakchi (Sighbhum). It is disclosed in the Fardbeyan that truck bearing registration No. BRT-4792 being driven rashly and negligently caused dash to the deceased Mian Noor Hussain who was returning to his residence on his Moped bearing registration No. BPX-5704 from Makdumpur. The Tribunal after adjudication directed the Insurance Company to pay Rs. 1,25,000 with interest @ 7% per annum from the date of filing of the application till the date of final payment to the claimants and, hence, this appeal. 2. It is contended on behalf of the appellant that the accident took place on 27th November, 1992 at about 12.30 p.m. The owner of the vehicle who was opposite party No. 1 in the Court below very cleverly approached the office of the appellant at about 3.30 p.m. and got the offending vehicle insured for three months. The owner of the offending vehicle had committed fraud knowing full well that the vehicle belonging to him had caused accident resulting in death of a person and he had hurriedly rushed to the appellant and obtained the said insurance policy. Affidavit sworn by the owner of the offending vehicle has been marked Ext. E and the letter written by him has been marked as Ext. D. These two documents clearly indicate as to how and in what circumstances the owner of the vehicle had obtained policy in order to pass on the responsibility on the shoulder of the appellant. Since there was no contract between the insurer and the insured at the time of the occurrence i.e., at 12.30 p.m. on 27th November, 1992, the insurer of the offending vehicle has wrongly been fastened with the liability. The learned Tribunal has erred in not taking into consideration Exts. D and E which are the documents written by the owner of the vehicle. The learned Tribunal has erred in not taking into consideration Exts. D and E which are the documents written by the owner of the vehicle. In the circumstances aforesaid, the owner of the vehicle ought to have been directed to pay compensation amount and, therefore, the impugned judgment to this extent is liable to be set aside. 3. None appears on behalf of the owner of the vehicle, whereas Counsel for the claimants is present and submits that till date, they have not received single coin and they could not be debarred from getting the fruits of the judgment, if the litigation continues between the insurer and the insured. 4. Heard the Counsel for the parties. 5. It appears that the documents and deposition of the witnesses which were kept with file C have been destroyed by order of learned Principal District Judge, Jamshedpur, and this fact has been communicated to this Court vide his Letter No. 777/G dated 3rd February, 2014. 6. Since the documents are not available on record, learned Counsel for the appellant in order to assist this Court has placed before this Court copies of those documents from his file. Admittedly, owner of the offending vehicle did not appear to admit his contentions made in Exts. D and E and, therefore, the contents appearing therein cannot be taken into consideration. The appellant has not taken steps to procure attendance of the vehicle owner as witness and, therefore, Exts. D and E are excluded from consideration. 7. Now, coming to the insurance policy marked as Ext. C, the insurance policy exhibited in this case is indicative of the fact that the policy was valid from 27th November, 1992 to 26th January, 1993. The accident took place on 27th November, 1992 and on that very date, the policy was effective. The only question which the appellant has raised in this appeal is that the policy was obtained by concealing the factum of occurrence. Since the owner of the vehicle has not appeared for his deposition in Court and the insurance policy did not indicate the time as to from which hour it was effective, I have no option but to admit the finding of the Tribunal that the policy was effective on 27th November, 1992 i.e. on the date on which the accident took place and the contract between the insurer and the insured was effective. Hence, the learned Tribunal has rightly held the Insurance Company liable to pay the compensation amount. The issues raised by the parties in their pleadings have been dealt with by the Tribunal and I do not find any illegality or incorrectness in the impugned judgment. For the reasons aforesaid, the appeal being devoid of merit stands dismissed and the judgment and the award passed by the Tribunal is hereby upheld. 8. The appellant Insurance Company is directed to satisfy the amount of compensation awarded by the Tribunal with interest within sixty days from the date of this order. The statutory amount of rupees twenty-five thousand deposited by the appellant at the time of filing the appeal is directed to be paid to the claimants on their proper identification and that amount shall be deducted from the total amount of compensation payable to the claimants.