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2017 DIGILAW 767 (MP)

Reliance General Insurance Co. Ltd. v. Yashodabai

2017-06-22

VIVEK AGARWAL

body2017
ORDER 1. Appellant/Insurance Company has filed this appeal being aggrieved by award dated 16th December, 2009 passed in Claim Case No.61/2009 by MACT, Gwalior, on the ground that truck No.MP07 G 4474 was not mentioned in the FIR and it was planted subsequently. 2. It is the contention of learned counsel for the appellant that since the vehicle as is insured with the Insurance Company was not involved in the accident, the award suffers from infirmity and deserves to be set aside. In this regard, evidence of Smt. Yashoda Bai and her cross-examination is important. Attention of this Court has been drawn to such cross-examination in which she has accepted that in her application she had admitted that she got information about the accident from Mohan Sharma. She denied the suggestion that false case has been lodged against the driver of the vehicle. Similarly attention has been drawn to the cross- examination of Mohan Sharma (PW2) to point out that Mohan Sharma being related to claimants gave false evidence and Claims Tribunal erred in relying on such false evidence. 3. Learned counsel for the respondents Shri B.K.Sharma on the other hand submits that Claims Tribunal has appreciated all these material on record and it has come on record that Mohan Sharma is not related to the claimants. They in fact belong to different region and community and the driver and owner of the truck also belong to different religion. It is submitted that driver and owner of the truck were not examined by the Insurance Company. in support of its contention that said vehicle was not actually involved in the accident. In fact, the papers of criminal case against the said vehicle reveal that said vehicle was given in Supurdgi to the concerned owner and that vehicle was involved in the accident. It is submitted that Insurance Company also did not examine the forensic expert who had examined the offending vehicle and in absence of any burden being discharged by the Insurance Company to show that vehicle was not involved in the accident, merely a bald pleading in the written statement will not justify the appeal in the hands of Insurance Company, specially when it has failed to examine any of the witnesses in support of its case. In view of the aforesaid, learned counsel for the claimants prays for dismissal of the appeal filed by the Insurance Company. 4. In view of the aforesaid, learned counsel for the claimants prays for dismissal of the appeal filed by the Insurance Company. 4. Learned counsel for the appellant has placed reliance on the judgment of this High Court in the case of The Oriental Insurance Co. Ltd. v. Mahila Kalawati and others, as reported in 2014 ACJ 2772, wherein it has been held that Insurance Company has every right to urge all grounds and claim petition is maintainable against owner and driver even without impleading insurer. In that case, the fact of the matter was that alleged vehicle involved in the accident was truck, whereas PW3 stated that accident was caused by jeep, therefore, it was held that there was discrepancy in the version of nature of the vehicle involved in the accident, as a result the High Court was pleased to set aside the award against the Insurance Company. Similarly, reliance has been placed on the judgment of Supreme Court in the case of National Insurance Co. Ltd. v. Meghji Naran Soratiya and others, as reported in 2009 ACJ 1441 , wherein the apex Court has been pleased to hold that if driver/owner fails to contest the claim, Tribunal may permit the insurance company to contest the same. It has been held that several false claims by claimants in collusion with owners/drivers/police/doctors are noted and if permission is not granted to the Insurance Company to contest, then it will result in success of false claims, therefore, the insurance company should not be prohibited from participating in the process of adjudication of liability and assessment of compensation. 5. As far as first judgment in the case of Oriental Insurance Co. Ltd. (supra), is concerned, in the present case, there is no ambiguity in regard to nature of the vehicle involved in the accident. In the FIR, it is mentioned by unknown vehicle. Nature of vehicle is not mentioned in the FIR. Therefore, there is no contradiction between the FIR, statements of Yashoda Bai (PW1) and Mohan Sharma (PW2) in regard to nature of the vehicle, and therefore, the law laid down in the case of Oriental Insurance Co. Ltd. (supra), will not apply to the facts and circumstances of the case. 6. As far as judgment in the case of National Insurance Co. Ltd. (supra), will not apply to the facts and circumstances of the case. 6. As far as judgment in the case of National Insurance Co. Ltd. (supra), is concerned, there is no dispute about the fact that Insurance Company being insurer and indemnifier has every right to contest the case, but for the lapse of insurance company in not adducing evidence to discharge its burden that vehicle involved was falsely implicated, it cannot be said that award made by the Claims Tribunal suffers from infirmity. It is admitted position as is seen from the record of the Claims Tribunal as well as admission of the appellant that no evidence was adduced on behalf of the appellant/Insurance Company. In fact, there is an application on record under Order 17 rule 1 CPC read with section 169 of the Motor Vehicles Act dated 16.12.2009 seeking adjournment on the ground that investigator of the insurance company is busy in other matters, but along with the written statement there is no report of the investigator enclosed to show that how he arrived at the finding that the truck in question was not involved in the accident. Therefore, in the present case, since insurance company has failed to discharge its burden of adducing any evidence for which they had an opportunity, it cannot be said that there is violation of any of the principles laid down in the case of National Insurance Co. Ltd. (supra). 7. In view of the aforesaid, since insurance company has failed to discharge its burden about non-involvement of offending vehicle, the appeal is liable to fail and fails and is accordingly dismissed. Parties to bear their own costs.