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2017 DIGILAW 141 (UTT)

New India Assurance Company Ltd. v. Manorama Devi

2017-02-28

SERVESH KUMAR GUPTA

body2017
JUDGMENT : Servesh Kumar Gupta, J. By means of this appeal the Insurance Company has challenged the judgment and order dated 18.7.2009 rendered by Labour Compensation Commissioner/ District Collector, Rudraprayag, awarding the compensation to the tune of Rs. 4,07,700/- to Smt. Manorama Devi (the widow of the deceased Shri Rakesh Bhatt). 2. The facts as emerging out from the whole gamut of pleadings of the parties are that vehicle no. UP86/9173 or 9175 (whatever) was on its journey from Dehradun to West Bengal. Then, on 22.02.2007 around 12:30 (PM/AM whatever) suddenly a technical fault developed in the whole mechanism of such vehicle resulting its dashing from roadside tree and as an overall result that it was fiercefully ablazed ruining not only whole cosmetic goods where with the truck was loaded but the entire truck itself caught the fire. In such fire, even its driver Shri Harish Kandari and cleaner/conductor Shri Rakesh Bhatt, aged about 32 years were burnt alive and thus lost their lives, much less the saving of any transport/relevant papers of such vehicle which surely might have remained in the cabin of the driver. 3. This accident occurred while the truck was travelling in the vicinity of Kamla Nagar/Puri, police station Sitapur, Uttar Pradesh. So, someone lodged the FIR at the police station on 22.02.2007 itself. Autopsy of Shri Rakesh Bhatt was also conducted on 23.02.2017 in the District Hospital there. Body was procured by some relative and cremation was done at Haridwar. After cremation, the information was extended to the relevant police station on 25.02.2007, which is exhibit 3 in the appeal file. Widow (Smt. Manorama Devi), infant daughter (Km. Radhika) and the mother (Smt. Alkeshwari Devi) presented the petition before the Labour Compensation Commissioner on 08.4.2008. The Insurance Company (appellant herein) was the opposite party no. 1 while Smt. Anita Kandari (wife of Shri Harish Kandari) was the opposite party no. 2. It is pertinent to mention that since Harish Kandari has already lost his life in such accident, so, in his absence, his wife Smt. Anita Kandari was impleaded as the necessary party. She never appeared before the Court below, much less filed any written statement. After rendering opportunities to both the parties to lead the evidence, the impugned judgment was passed by the District Collector. 4. She never appeared before the Court below, much less filed any written statement. After rendering opportunities to both the parties to lead the evidence, the impugned judgment was passed by the District Collector. 4. The New India Insurance Company has challenged such judgment stressfully on the ground that Court below has committed an apparent error by fastening the liability on the Insurance Company despite want of any Insurance policy because it was the burden of the petitioner to produce such insurance policy/cover note in order to atleast prima facie show that vehicle in question was insured with the appellant. True, the burden to prove the fact lies primarily on the party who avers such fact, but at the same time, this Court cannot be in oblivion of the fact that in such matters the standard of proofs are not of that degree as envisaged under the provisions of Evidence Act r/w Civil Procedure Code. 5. In such unfortunate incident, the Court cannot be expected to leg behind from culling out the truth after churning/marshalling the facts and discerning the preponderance of possibilities. It is difficult to look over the pleadings as have been submitted by the Insurance Company and if carefully have a look on the written statement then it can be noticed that the para no.8, after getting it typed, has been added with two more sentences by handscripts of some ministerial staff. First half sentence denies the insurance of the questioned vehicle in a round about way and in the second sentence which is more suffixing in nature it has been said that the fact of insurance is not accepted in want of Knowledge. Further, this hand script has not been signed by the responsible officer Smt. Mukta Sharma, who has verified the whole written statement appending the verification clause in the last. Therefore, in the peculiar facts and circumstances of the case when everything including the paper, human lives, whole truck and goods in it were reduced to ashes in the accident, then it was not possible for the helpless widow Smt. Manorama Devi, leading a remote hill rustic life, to run from pillar to post and collect all these papers. 6. Therefore, in the peculiar facts and circumstances of the case when everything including the paper, human lives, whole truck and goods in it were reduced to ashes in the accident, then it was not possible for the helpless widow Smt. Manorama Devi, leading a remote hill rustic life, to run from pillar to post and collect all these papers. 6. The existence of the insurance cover note under the policy issued by the appellant can be discerned not only from the pleadings as indicated above but also from the fact that insurance company appointed its own surveyor Mr. B.B. Sharma, who investigated the matter elaborately after going on the spot and found that the factum of accident verbatim true, as have been highlighted above. He has also ratified the names/ages, details of the dependants of the deceased Shri Rakesh Bhatt, his cremation and all other facts as have been enumerated hereinabove. Therefore, the second thought of the appellant that vehicle no.9173 was a tempo and not a truck cannot deprive the claimants from the beneficial provisions of the Act because even the insurance surveyor has disclosed the number of vehicle UP-86-9173 accepting to be a truck and so is reproduced in the pleadings as submitted by the appellant. 7. Learned counsel of the insurance company has argued that application for review was moved under Section 114 Order 47 of the Civil Procedure Code, before the Collectorate concern, but it was rejected summarily. 8. In my view, it was rightly rejected and I find no infirmity in the impugned judgment. The appeal has no force. It is hereby dismissed. 9. The amount (along with interest earned, if any) shall be released to Smt. Manorama Devi, but atleast Rs. 50,000/- shall be released to Smt. Alkeshwari Devi (mother of the deceased Shri Rakesh Bhatt) if she is found alive. In case she is not alive then the whole amount shall be released in favour of Smt. Manorama Devi without asking any surety or security from her. 10. LCR immediately be sent back to the Court below for making compliance of the order.