Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 184 (GAU)

NATIONAL INSURANCE CO LTD. v. BUDHESWAR HANDIQUE

2019-02-08

NANI TAGIA

body2019
JUDGMENT : NANI TAGIA, J. 1. Heard Ms. R. D. Mozumdar, learned counsel, appearing on behalf of the appellant. Also heard Mr. A. K. Gupta, learned counsel, appearing on behalf of the respondents. 2. This appeal has been preferred, challenging the legality and validity of the judgment & award, dated 04.01.2010, passed by the learned Member, MAC Tribunal, Dibrugarh, in MAC Case No. 54/2005, whereby an amount of Rs. 98,393/- along with an interest of 9 per cent per annum, was awarded to be paid as a compensation amount to the respondent No. 1. 3. The facts leading to the filing of the present appeal, is as follows: The respondent No. 1, as claimant, had filed a claim petition before the learned Tribunal at Dibrugarh, claiming a compensation amount of Rs. 6,17,593/- on various Heads, on account of the injury sustained by him, as a result of a road accident occurred on 06.03.2005 at Kumarnichiga, Dibrugarh, on NH 37, at around 7 AM. The respondent No. 1/claimant had stated in the claim petition that while he was coming from Dibrugarh University side towards Amlapatty, a vehicle bearing NL01A/885, which was a Truck Tailor, coming from the same direction, knocked him from behind as a result of which, he sustained injuries. The case proceeded ex-parte against the owner of the Truck and the name of the Driver was struck-off, from the list of opposite parties. The Insurance Company/Opposite Party No. 3 contested the case by filing a written statement on 16.08.2005. The said Insurance Company/Opposite Party No. 3 had also filed an additional written statement on 12.07.2007, whereby the Insurance Company/Opposite Party No. 3, inter alia, denied that the offending vehicle was insured with the Insurance Company/Opposite Party No. 3. Upon consideration of the pleadings of the parties, the learned Tribunal framed as many as 5 issues of which Issue No. 3 is the relevant, which is, as under: "3. Whether the vehicle has insurance with O.P. No. 3?" While deciding and considering the above-quoted issue, the learned Tribunal has held that in column 6 of the claim petition, the name and the address of the Insurance Company had been mentioned. Whether the vehicle has insurance with O.P. No. 3?" While deciding and considering the above-quoted issue, the learned Tribunal has held that in column 6 of the claim petition, the name and the address of the Insurance Company had been mentioned. In paragraphs No. 2 & 6 of the additional written statement filed by the Insurance Company/Opposite Party No. 3, the Insurance Company/Opposite Party No. 3 did not challenge the validity and Number of the Policy, and therefore, it held that the offending vehicle was insured with the said Insurance Company/Opposite Party No. 3. It was on the basis of the non-denial or challenge made by the Insurance Company with regard to the insurance policy Number referred to in Column No. 16 of the claim petition that the award, in question, was passed by the learned Tribunal. 4. Assailing the findings of the learned Tribunal, Dibrugarh, Ms. Mozumdar, learned counsel, representing the appellant, submits that as the offending vehicle was not insured with the Insurance Company/Opposite Party No. 3, therefore, there was no question of production of a copy of the insurance policy of the offending vehicle. She further submits that in the cross-examination of the claimant, the claimant had also stated that he had no knowledge about the insurance of the offending vehicle. In that view of the matter, the learned Tribunal at Dibrugarh, could not have come to the conclusion that the offending vehicle was insured with the Insurance Company/Opposite Party No. 3. 5. On the other hand, Mr. Gupta, learned counsel appearing on behalf of respondent No. 1, submits that in Form 54 which is a Motor Accident Report, submitted by the concerned Motor Vehicle Inspector(MVI), which has also been exhibited as Ext.-1, would go to show that the offending vehicle was insured with the Insurance Company/Opposite Party No. 3, which had a policy number also. Therefore, the learned Tribunal was correct in coming to the finding that the offending vehicle was insured with the Insurance Company/Opposite Party No. 3. 6. Rival submissions advanced by the learned counsels at the Bar, have received due consideration of this Court. 7. It is to be noted that, in this case, the owner and the Driver of the offending vehicle, did not appear before the learned Tribunal at Dibrugarh, despite service of notice. 6. Rival submissions advanced by the learned counsels at the Bar, have received due consideration of this Court. 7. It is to be noted that, in this case, the owner and the Driver of the offending vehicle, did not appear before the learned Tribunal at Dibrugarh, despite service of notice. If there was, in fact, a valid insurance policy then nothing prevented the owner from appearing before the learned Tribunal and producing the same in which event, he would have naturally been absolved of any liability for payment of compensation but the said respondent No. 2/owner of the offending vehicle, has failed to do so. The fact that there was no valid insurance policy covering the vehicle of respondent No. 2, is a negative fact and the Insurance Company/Opposite Party No. 3 cannot be asked to prove the negative fact, by giving evidence. 8. On the contrary, since the claimant has made a claim that the offending vehicle was insured with the Insurance Company/Opposite Party No. 3, the burden to prove the said fact was on the claimant which burden he had failed to discharge. 9. In the aforesaid circumstances, I am of the view that the learned Tribunal was not correct in holding that the offending vehicle was insured with the Insurance Company/Opposite Party No. 3, as such, no liability could have been fastened upon the said Insurance Company/Opposite Party No. 3 in the given facts and circumstances of the case. 10. In the result, the instant appeal stands allowed to the extent indicated above. 11. The direction of the learned Tribunal asking the Insurance Company/Opposite Party No. 3 to pay the compensation stands set aside. 12. It is, however, clarified that the liability would now be wholly upon the respondent No. 2 i.e. owner of the offending vehicle, and the respondent No. 1/claimant would be at liberty to proceed with the execution of the awarded amount against the said respondent No. 2/owner of the offending vehicle. 13. The impugned award passed by the learned Tribunal at Dibrugarh, Assam, stands modified to the extent indicated above. 14. With the above directions, the instant appeal stands disposed of. 15. Send down the connected LCRs forthwith.