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Himachal Pradesh High Court · body

2018 DIGILAW 2313 (HP)

ICICI Lombard General Insurance Company Ltd. v. Mitto Devi

2018-12-31

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The learned Motor Accident Claims Tribunal-II, Sirmaur, District at Nahan, H.P., initially. on 1.06.2009, upon, making a verdict, vis-a-vis, MAC Petition No. 15-N/2 of 2006, determined compensation amount, borne in a sum of Rs.10,28,448/-, along with interest at the rate of 7.5.% per annum from the date of filing of the petition till its realization, and, fastened the apposite indemnificatory liability, upon, M/s Shanti Flats & Fondations Pvt. Ltd., respondent No.7 herein. The verdict initially rendered on 1.6.2009, upon, afore MAC petition, stood, challenged by the afore respondent, by the latter constituting, an appeal before this Court, appeal whereof assigned FAO No.413 of 2009, and, thereon this Court, without disturbing the findings, upon, issues No.1, 3, 4, 5 and 6, proceeded to make an order of remand, vis-a-vis, the learned Tribunal, for, its rendering findings afresh, upon issues No.2 and 7, (i) issues whereof appertain, to the quantum of compensation, whereto, the claimants being entitled, and, qua the apt indemnificatory liability, being fastenable, upon, the insurer or the owner of the offending vehicle. The learned tribunal on receiving the matter, on remand to it, rendered a fresh decision on 31.12.2016, upon, the afore issues, and, proceeded to reaffirm the findings earlier rendered upon issue No.2, whereas, it recorded disaffirmative findings, upon, issue No.7, and, reversed the earlier conclusion qua the respondent No.7 herein being amenable for fastening, of, the apposite indemnificatory liability, and, rather the apposite indemnificatory liability stood fastened, upon, the insurer of the offending vehicle. 2. The Insurer of the offending vehicle, is aggrieved therefrom, hence, has proceeded to cast, a challenge thereto, by its, instituting the instant FAO before this Court. 3. Since, the counsel appearing for the insurer, does not strive to cast any onslaught, vis-a-vis, the quantum of compensation assessed by the learned tribunal, in the initial verdict recorded on 1.6.2009, (i) hence, the quantum of compensation, as, determined thereunder, is, concluded to acquire conclusivity, and, finality. 4. However, the learned counsel appearing for the insurer ha with immense strength contended vigorously before this Court (i) that the findings returned, upon, the issue appertaining to the apposite indemnificatory liability being fastenable, upon, the insurer, hence warranting theirs being reversed by this Court. 4. However, the learned counsel appearing for the insurer ha with immense strength contended vigorously before this Court (i) that the findings returned, upon, the issue appertaining to the apposite indemnificatory liability being fastenable, upon, the insurer, hence warranting theirs being reversed by this Court. His, afore submission, is, rested, upon, a purported fallacy, committed by the learned tribunal, in, assigning probative strength to Ex.RW1/D, (ii) despite the afore exhibit, merely being a photo copy, (iii) and, rather it making a mere display of an apt acknowledgement being made by the insurer, vis-a-vis, premium, as, borne in a sum of Rs.4,234/-, being received from the owner, of, the offending vehicle. (iv) The afore exhibit not hence either constituting, a certificate of insurance nor it being construable to be a cover note, whereas, the apt Rule 143, of, the Central Motor Vehicles Rules 1989, rule whereof stands extracted hereinafter, peremptorily requiring issuance, of, the afore certificate of insurance or cover note, both whereof are enjoined to be authenticated, by the authorized official, of, the insurer, (v) and, upon, the afore rule being read in conjunction, with Section 147 of the Motor Vehicles Act, especially sub section (1) thereof, provisions whereof also stand extracted hereinafter, (vi) and, with a dire necessity, of, strict statutory compliance therewith hence standing embodied therein, vis-a-vis, requirement, of, an insurance policy, vis-a-vis, the offending vehicle, (vii) thereupon, also the owner of the offending vehicle was enjoined, to, for ensuring, any valid burdening, of, the apposite indemnificatory liability, upon, the insurer, hence tender the policy of insurance, (viii) whereas, his omitting to do so, thereupon, the afore exhibit embodied in Ex.RW1/D, is, inconsequential, nor is a worthy piece of evidence, for, fastening the apposite indemnificatory liability, upon, the insurer. Provisions of Rule 143 of the Central Motor Vehicles Rules, 1989, read as under:- “143. Issue of certificate of insurance.-Every certificate of insurance or cover note issued by an insurer in compliance with the provisions of this Chapter shall be duly authenticated by such person as may be authorised by the insurer. The relevant provisions of Section 147 of the Motor Vehicles Act, read as under:- “147 Requirements of policies and limits of liability. Issue of certificate of insurance.-Every certificate of insurance or cover note issued by an insurer in compliance with the provisions of this Chapter shall be duly authenticated by such person as may be authorised by the insurer. The relevant provisions of Section 147 of the Motor Vehicles Act, read as under:- “147 Requirements of policies and limits of liability. —(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—(i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;\ (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:....” 5. Nonetheless, the afore contention, reared before this Court, by the learned counsel appearing for the insurer rather, is, for the reasons to be assigned hereinafter, hence amenable, for being discountenanced, (a) RW-6, an official of the insurer, upon, stepping into the witness box, though, in his deposition borne in is examination-in-chief, denied the factum of issuance of Ex.RW1/D, yet, his afore denial is ridden with an entrenched inveracity, (b) given his admitting the factum, of, the premium amount, as, disclosed therein to stand borne in a sum of Rs.4,234/-, rather being received by the insurer, (c) and, his explicating its receipt, by the insurer, vis-a-vis, it being the premium defrayable, vis-a-vis, the policy appertaining, to, non motor machinery, and, policy whereof, is, embodied in Ex.RW6/A. However, even the afore testification embodied in the examination-in-chief of RW-6, is, belied by the latter, in his cross-examination, rather making an admission qua the premium payable, vis-a-vis, Ex.RW6/A, hence standing already received by the insurer, (d) Ex.RW1/D making a clear echoing qua the premium acknowledged to be received there through hence by the insurer, rather, appertaining to the offending vehicle. 6. 6. Be that as it may, the necessity of strict compliance with the afore extracted provisions, as, borne in Section 147 of the Motor Vehicles Act, and, with Rule 143, of, the Central Motor Vehicles Rules, also stood encumbered, upon, the insurer, (a) emphatically when this Court, for reasons aforestated rather has concluded qua Ex.RW1/D, appertaining to the offending vehicle. However, the insurer hence omitted to mete compliance therewith, despite, RW-4, in his testification rendered on oath, and, his in his deposition, comprised, in his examination-in-chief, making an articulation qua his, through Ex.RW4/F to Ex.RW4/H, making entreaties, upon, the insurer, of, the offending vehicle, for the latter hence meteing the afore requisite statutory compliance. Even through, the afore exhibits, rather stand admitted by RW-4, in his deposition, comprised in his cross-examination, hence to be transmitted to the insurer, and, also despite the afore exhibit being photo copies, (i) yet, the afore purported infirmities hence gripping the afore exhibits, are inconsequential, for making, any unflinching conclusion qua the insurer, not, receiving the afore communications from, RW-4, (ii) necessarily when a close circumspect reading of the cross-examination, of RW-4, fails to make any emergences, qua, any apposite suggestion being put thereat, to, RW-4, appertaining to the afore exhibits rather never coming to be received by the insurer. The effect of the afore lack of disclosures, in, the cross-examination of RW-4, rather fosters an inference qua respondent No.4, not derelicting in making the requisite entreaties upon the insurer, for, the latter hence meteing compliance with the afore provisions, (iii) rather the insurer on the afore invented or pretextual grounds, failing to mete the requisite compliance therewith. Corollary thereof being qua the afore espousal reared before this Court, by the counsel for the insurer remaining unrested, upon, evidence existing on record, and, obviously his contention, warrants, its, outright rejection. 7. Corollary thereof being qua the afore espousal reared before this Court, by the counsel for the insurer remaining unrested, upon, evidence existing on record, and, obviously his contention, warrants, its, outright rejection. 7. Furthermore, all the afore arguments addressed before this Court by the learned counsel, for the insurer, and, purported evidence in consonance therewith, as, depended upon by him, is, apparently beyond pleadings relevant thereto, and, constituted in the reply furnished by the insurer, to the apposite claim petition, (i) wherein, rather, hence, all the afore contentions, were enjoined to be pleaded both with precision, and, with the utmost meticulousness, (ii) whereas, the insurer rather raising a cursory contention, qua, for want of supply, of, particulars of the insurance policy, (iii) thereupon, the owner, of, the offending vehicle holding no insurable interest, vis-a-vis, the offending vehicle, (iv) thereupon, the afore vague, and, nebulous contention(s) reared by the insurer in its reply, to the claim petition, obviously rather fails to encapsulate, the entire expanse of the afore evidence, (v) thereupon, the evidence alluded to, and, depended upon, by the learned counsel for the insurer, for, hence, its purported valid exculpation, of, its indemnificatory liability hence remained unbedrocked, upon, the apt pleadings, and, warrants rejection. 8. For the foregoing reasons, there is no merit, in the instant appeal, and, it is dismissed accordingly. The award impugned before this Court is affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith.