JUDGMENT : Common Prayer: These Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the common award dated 17.02.2017, made in M.C.O.P. Nos.511, 510 & 509 of 2011, on the file of the II Additional District Court, (Motor Accident Claims Tribunal), Salem. (In C.M.A.No.2339/2019). 1. The matter is heard through "Video Conferencing". These appeals have been filed to set aside the common award dated 17.02.2017, made in M.C.O.P. Nos.511, 510 & 509 of 2011, on the file of the II Additional District Court, (Motor Accident Claims Tribunal), Salem. 2. All the appeals arise out of the same accident and common award. Hence, they are disposed of by this common judgment. 3. The appellant in all the appeals is the 2nd respondent-Insurance Company in M.C.O.P. Nos.511, 510 & 509 of 2011, on the file of the II Additional District Court, (Motor Accident Claims Tribunal), Salem. The 1st respondent in C.M.A.Nos.2339 and 2342 of 2019 filed M.C.O.P.Nos.511 & 510 of 2011, claiming a sum of Rs.5,00,000/- and Rs.5,00,000/- respectively as compensation for the injuries sustained by them in the accident that took place on 15.10.2010. The respondents 1 to 4 in C.M.A.No.2344 of 2019 filed M.C.O.P.No.509 of 2011, claiming a sum of Rs.15,00,000/- as compensation for the death of one Arun, who died in the accident that took place on 15.10.2010. 4. The parties are referred to as per their rank in M.C.O.P.No.509 of 2011, for the sake of convenience. 5. According to the claimants, on the date of accident, when the deceased Arun was riding Motorcycle bearing Registration No.TN-65-B- 4700 along with his wife and daughter who are the claimants 1 and 2 as pillion riders near Devangar Colony, Mettupatti Thathanur, in front of M.R. Petrol Bunk, the driver of a Scorpio Car bearing Registration No.TN-23-AC-3099 belonging to the 1st respondent, drove the same in a rash and negligent manner and hit against the Motorcycle driven by the deceased and caused the accident. In the accident, the deceased sustained fatal injuries. The accident occurred due to rash and negligent driving by driver of the Scorpio Car belonging to the 1st respondent and hence, filed M.C.O.P.No.509 of 2011 against the respondents who are the owner and insurer of the offending vehicle respectively. In the accident, the deceased sustained fatal injuries. The accident occurred due to rash and negligent driving by driver of the Scorpio Car belonging to the 1st respondent and hence, filed M.C.O.P.No.509 of 2011 against the respondents who are the owner and insurer of the offending vehicle respectively. In the same accident, the claimants 1 and 2 also sustained severe injuries and hence, they separately filed claim petition in M.C.O.P.Nos.510 and 511 of 2011 respectively against the respondents as owner and insurer of the offending vehicle respectively. 6. The 1st respondent remained exparte before the Tribunal. 7. The 2nd respondent-Insurance Company filed separate counter statements in all the claim petitions and denied all the averments made in the claim petitions. The claimants have stated that the said Scorpio Car was insured with the 2nd respondent under cover note No.0981061 for the period from 09.10.2010 to 08.10.2011, whereas the cover note book bearing No.LUB 0060607 containing the said cover note No.0981061 was lost and a complaint was given to that effect before the Vellore North Crime Police Station on 22.10.2009 itself, for which CSR No.490/2009 was also issued. The Police after investigation, issued a certificate on 16.09.2011, stating that all efforts taken to trace the cover note book went in vain. Therefore, it is clear that the said cover note was lost almost one year before the alleged accident that took place on 15.10.2010. The alleged cover Note No.0981061 was not issued by the 2nd respondent to the Scorpio Car bearing Registration No.TN-23-AC-3099 for the period from 09.10.2010 to 08.10.2011 and the cover note mentioned in the petitions is not a genuine document. The 2nd respondent has not received any premium for the Scorpio Car and no policy was issued by the 2nd respondent. In any event, the accident occurred when the deceased rode the Motorcycle violating traffic rules by suddenly turning to his right to reach the petrol bunk and dashed against the Scorpio Car. Hence, the accident occurred only due to rash and negligent riding of Motorcycle by the deceased. Therefore, this respondent is not liable to pay any compensation and prayed for dismissal of all the claim petitions as against the 2nd respondent. 8. Hence, the accident occurred only due to rash and negligent riding of Motorcycle by the deceased. Therefore, this respondent is not liable to pay any compensation and prayed for dismissal of all the claim petitions as against the 2nd respondent. 8. Before the Tribunal, the 3rd claimant examined himself as P.W.1, 1st claimant was examined as P.W.2, one Seenivasan was examined as P.W.3, Sub-Inspector of Police, Karipatty Police Station, was examined as P.W.4, one Puthuvainathan was examined as P.W.5 and 26 documents were marked as Exs.P1 to P26. The 2nd respondent examined 1st respondent as R.W.1 and one Subramanian as R.W.2 and marked 3 documents as Exs.R1 to R3. Three documents were marked as Exs.X1 to X3. 9. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by driver of the Scorpio Car belonging to the 1st respondent and directed the respondents to jointly and severally pay a sum of Rs.1,88,000/-, Rs.2,07,500/- and Rs.10,64,000/- as compensation to the claimant(s) in all the claim petitions respectively. 10. To set aside the said common award dated 17.02.2017, made in M.C.O.P. Nos.511, 510 & 509 of 2011, the 2nd respondent-Insurance Company has come out with the present appeals. 11. The learned counsel appearing for the 2nd respondent-Insurance Company contended that on the date of accident, the offending vehicle viz., Scorpio Car was not insured with the 2nd respondent. The alleged cover note No.0981061 forming part of a cover note book bearing No.LUB 0060607 relied on by claimants was lost on 22.10.2009 and the 2nd respondent lodged complaint on the same day. The Police issued CSR receipt No.490/2009. The Police after investigation, issued certificate on 16.09.2011 stating that the lost cover note book was “not traceable”. P.W.4 – Sub-Inspector of Police deposed that complaint was lodged by the 2nd respondent-Insurance Company and certificate was issued. The Tribunal erroneously rejected the evidence of P.W.4 without giving any reason. The 1st respondent, owner of the vehicle remained exparte before the Tribunal and he did not file any counter statement, denying the averments in the counter filed by the 2nd respondent. The Tribunal erroneously rejected the evidence of P.W.4 without giving any reason. The 1st respondent, owner of the vehicle remained exparte before the Tribunal and he did not file any counter statement, denying the averments in the counter filed by the 2nd respondent. In the above circumstances, the Tribunal erred in accepting the evidence of R.W.1, owner of Scorpio Car that he produced original insurance policy, premium receipt and the cover note to the Police authorities, when P.W.4, Natraj, Sub-Inspector of Police had categorically stated that such documents are not available in the C.D. file marked as Ex.X1. The Tribunal failed to consider the fact that Motor Vehicle Inspector's report produced through P.W.5 for both the vehicles viz., Scorpio Car as well as the Motorcycle driven by the deceased are not genuine. The Motor Vehicle Inspector's report for the Motorcycle was computer generated and that for the Scorpio Car was hand written. The Tribunal has erroneously drawn adverse inference on the 2nd respondent, as the 2nd respondent failed to take action against the officers who issued cover note. The Tribunal failed to see that the 1st respondent, for first time as R.W.1, has stated that he only handed over the policy and cover note to the Police without any evidence, that he has paid premium and produced policy, followed by the cover note. The Tribunal ought to have accepted the evidence of R.W.2 and dismissed all the claim petitions as 2nd respondent-Insurance Company is not liable to pay compensation. 12. The learned counsel appearing for the 2nd respondent-Insurance Company relied on the following judgments in support of their case: (i) 2018 2 TNMAC 215 [Shriram General Insurance Co. Ltd.,Vs. R.Maheswari and others]: “9. It is evident from the materials placed on record especially the Cover Note bearing S. Nos. 402261 to 202270 (Ex.R-1) which includes S.No. 402264 that the same had been issued in respect of the vehicle bearing Registration No. TN-04-K-0483 in favour of Saveetha Engineering College, Saveetha Nagar, Thandalam, Sriperumbudur which was neither in the name of the Fourth Respondent nor in respect of the vehicle bearing Registration No. PY-01-J-2264 that was involved in the accident in which the said Ravichandran had died and for which the First to Third Respondents were claiming compensation as his legal heirs. The only basis on which the First to Third Respondents had sought to fasten the liability on the Appellant was on the basis of the photocopy of the Cover Note bearing S.No. 402264 (Ex.P-3) obtained from the police, who had investigated that accident, but conspicuously the First to Third Respondents had not taken any efforts for examination of the police in that regard or to place evidence to the effect that the Appellant had received premium for insuring the vehicle belonging to the Fourth Respondent that was involved in the accident. 10. Further, the Claims Tribunal ought to have drawn the necessary inference against the Fourth Respondent for failure to reply to the notices dated 19.10.2003 and 29.10.2003 (Ex.P-3 to P-5) and produce the original copy of the Cover Note if she really had custody of the same. In any event, if the Fourth Respondent was interested to claim indemnity from the Appellant, it was incumbent upon her to have appeared before the Claims Tribunal and produced the original of the Cover Note said to have been issued by the Appellant and also lead evidence for having paid the premium for the same. 11. Be that as it may, the Claims Tribunal could not have disbelieved the contention of the Appellant that it had not issued the Cover Note bearing S.No. 402264 for the vehicle bearing Registration No. PY- 01-J-2264 in the name of the Fourth Respondent merely for the reason that the Appellant had not initiated criminal prosecution against the Fourth Respondent. It has to be pointed out here that it was the responsibility of the investigating officer of the police to have compared the photocopy of the Cover Note with its original before handing over the copy to the First to Third Respondents and when there is lack of evidence in this regard, the Appellant ought not to have been fastened with liability. On the other hand, it is actually the duty of the police, after thorough investigation, to have prosecuted the Fourth Respondent for not having insured the vehicle and for having produced false evidence.” (ii) 2012 (1) TNMAC 377 (SC) [S.M.Sharmila Vs. National Insurance Co. Ltd., and others]: “13. Whether the vehicle in question was insured at the time of accident i.e. on 3rd April, 1998 is a question of fact. National Insurance Co. Ltd., and others]: “13. Whether the vehicle in question was insured at the time of accident i.e. on 3rd April, 1998 is a question of fact. After appreciating the evidence, the High Court came to the conclusion that the vehicle in question was not insured on 3rd April, 1998 and the vehicle in question had been insured for a period commencing from 3rd March, 1997 to 2nd March, 1998. The High Court has recorded sound reasons for coming to the said conclusion after carefully appreciating the evidence adduced before the Commissioner. Postage book of the Insurance Company shows that the insurance policy was dispatched on 25th March, 1997. This clearly denotes that the policy was taken prior to 25th March, 1997 and, therefore, the High Court rightly believed the version of the Insurance Company. This fact rules out the possibility of the vehicle being insured on 3rd April, 1998 as submitted on behalf of the respondent workmen and the appellant. Moreover, the cover note relied upon by the respondent workmen was not found to be genuine by the High Court. We are, therefore, in agreement with the view expressed by the High Court.” (iii) 2016 (2) TNMAC 433 (Delhi) [New India Assurance Company and others Vs. R.K.Arora and others]: “14. The grievance of the insurance company is that it has been held liable even though it had proved, to the satisfaction of the tribunal, that the insurance cover note submitted with the claim petition by the claimant was a forged and fabricated document. The submission of the claimant, on the other hand, is that he had received the copy of the cover note in question from the investigating police as part of the documents relating to the chargesheet submitted on conclusion of the corresponding criminal case registered and investigated by the said agency and, therefore, he cannot be held answerable and that against the backdrop the tribunal has taken an appropriate view. 15. On close scrutiny, this court finds that the approach of the tribunal was wholly erroneous. By irrefutable evidence presented during inquiry, it had been proved that the cover note (Ex.RW3/B) was a forged and fabricated document. 15. On close scrutiny, this court finds that the approach of the tribunal was wholly erroneous. By irrefutable evidence presented during inquiry, it had been proved that the cover note (Ex.RW3/B) was a forged and fabricated document. It was shown on the basis of cogent evidence led that the insurance policy to which the said cover note purports to relate had actually been issued in the name of a third person in respect of a different vehicle. The responsibility to prove that the cover note of insurance is genuine and valid, obtained against premium duly paid, was that of the owner of the vehicle. The said party/respondent clearly avoided joining the issue, or the inquiry before the tribunal, and instead opted to suffer the proceedings ex-parte. It is pertinent to note that the said party, inspite of service even in the proceedings on the appeal before this court, has chosen not to appear. The same is the position of the driver in the appeal before this court. ....................... 18. It does appear that the disciplinary action against Mr. P.S. Bisht, Assistant of the insurance company under whose purported signatures the cover note in question appears to have come into existence was rather slow. During the inquiry before the tribunal, the insurance company proved some material indicating that the said employee had been proceeded against under disciplinary rules. Till the time the proceedings before the tribunal were concluded, the disciplinary inquiry was inchoate. Pursuant to the directions of this court, however, the insurance company has brought on record document dated 13.10.2006 indicating that the disciplinary action stood concluded in due course and Mr. P.S. Bisht having been found guilty of misconduct, penalty of removal from service was imposed against him.” (iv) 2007 (2) TNMAC 188 [Oriental Insurance Co. Ltd., Thiruvarur vs. Karthikesan and others] : “3. As regards the insurance coverage, the award of the Tribunal is silent. The Tribunal has wrongly observed under Point No.2 that the appellant is the insurer of the vehicle of the second respondent. But it has not discussed about the features with regard to the insurance policy in its award. When it is definitely denied by the appellant insurance company that there was no insurance polity, it is incumbent upon the claimant to prove that the insurance policy was in force. In this case, those details are miserably absent. But it has not discussed about the features with regard to the insurance policy in its award. When it is definitely denied by the appellant insurance company that there was no insurance polity, it is incumbent upon the claimant to prove that the insurance policy was in force. In this case, those details are miserably absent. That being the case, it is in charitable to fasten the liability on the appellant insurance company. 4. Learned counsel for the appellant cited an unreported decision delivered by a Division Bench of this Court in C.M.A.No.1389 of 1993 dated 28.02.1994, where Their Lordships have held that when the claimant has failed to establish that the insurance policy was in force at the time of accident, no liability could be fixed upon the insurance company and the owner of the vehicle should be held liable. Considering the circumstances of this case, it is to be held that the compensation as fixed by the Tribunal has to be paid by the owner of the tractor viz., the second respondent herein.” 13. Heard the learned counsel appearing for the 2nd respondent- Insurance Company as well as the claimants and perused the materials available on record. 14. From the materials on record, it is seen that the claimants have filed claim petitions, claiming compensation against the respondents 1 and 2 who are the owner and insurer of the offending vehicle. In support of their case, the claimants examined themselves as P.W.1 to P.W.3, examined Sub-Inspector of Police as P.W.4, one Puthuvainathan as P.W.5 and marked Exs.P1 to P26. According to the claimants, Ex.P9 is a cover note issued by the 2nd respondent for the offending vehicle for the period from 09.10.2010 till 08.10.2011. According to the 2nd respondent- Insurance Company, the offending vehicle was not insured with them at the time of accident and cover note book No.LUB 0060607 containing cover note No.0981061 was lost on 22.10.2009, for which complaint was given to the Police on the same day itself and Police had issued CSR No.490 of 2009. Subsequently, the Police after investigation, issued Ex.R3 – certificate stating that the cover note book is not-traceable. To substantiate this, the 2nd respondent-Insurance Company examined owner of the vehicle/1st respondent as R.W.1 and examined one Subramanian as R.W.2. 15. Subsequently, the Police after investigation, issued Ex.R3 – certificate stating that the cover note book is not-traceable. To substantiate this, the 2nd respondent-Insurance Company examined owner of the vehicle/1st respondent as R.W.1 and examined one Subramanian as R.W.2. 15. From the materials on record, it is seen that the 1st respondent as R.W.1, has deposed that he had handed over the cover note receipt for the premium policy to the Police. In view of the same, he was treated as hostile witness and was cross examined by counsel for the 2nd respondent. The Tribunal verifying Ex.P9 – cover note, found that it was signed by one Amutha, authorised signatory, an Official of the 2nd respondent and one D. Yogesh, Agent/service provider. 16. From the materials on record, it is seen that the 2nd respondent has not examined the said Amutha and D. Yogesh. It is not the case of the 2nd respondent that signature found in the cover note is not the signature of their official and Amutha is not their employee or D. Yogesh is not their authorised agent. The claim petitions were filed in February, 2011, stating that offending vehicle was insured with the 2nd respondent. During trial, the claimants filed cover note. The owner of the vehicle, 1st respondent, as R.W.1, has deposed that he handed over the cover note, premium receipt and original insurance policy to the Police. Inspite of claim of claimants based on cover note and evidence of 1st respondent, the 2nd respondent has not given any complaint to the Police against the claimants as well as against the 1st respondent. The 2nd respondent ought to have brought to the notice of the Police about the cover note produced by the claimants before the Tribunal and ought to have taken steps for investigation by the Police with regard to genuineness of cover note. The 2nd respondent has not produced copy of the complaint given to the Police and did not examine the person who gave complaint to the Police. There is nothing on record to show that any action was taken against the said Amutha or D.Yogesh, agent/service provider of the 2nd respondent. 17. The 2nd respondent has not produced copy of the complaint given to the Police and did not examine the person who gave complaint to the Police. There is nothing on record to show that any action was taken against the said Amutha or D.Yogesh, agent/service provider of the 2nd respondent. 17. The learned counsel appearing for the 2nd respondent referring to the evidence of P.W.4, R.W.1 and R.W.2, has contended that R.W.1 has deposed that he had handed over the original policy, premium receipt and cover note to the Police, but P.W.4, Sub-Inspector of Police has deposed that policy is not available in their file. P.W.4 also deposed that no complaint was given to him. From the materials on record, it is seen that the 2nd respondent-Insurance Company came to know about the claim of the claimants that vehicle belonging to the 1st respondent was insured with them and relied on Ex.P9. The 2nd respondent has not brought to the notice of the Police about the claim of claimants based on Ex.P9, the alleged lost cover note and has not taken any steps for investigation of this matter to find out as to how the claimants have produced the lost cover note. It is pertinent to note that officer incharge of the branch at the time the cover note was lost had resigned from service of the 2nd respondent. R.W.2 official incharge of the Branch admitted that they have not taken any action against the official whose signature was found in the cover note. Further, it is not the case of 2nd respondent-Insurance Company that the cover note duly signed by the official was lost. They have not denied that D. Yogesh is their Agent and not given any complaint against the said D. Yogesh, after coming to know that cover note, Ex.P9 was issued by him. Considering all the above materials in its entirety, it is clear that the 2nd respondent has not proved that book containing cover note, Ex.P9 relied on by the claimants and 1st respondent for claiming compensation from the 2nd respondent-Insurance Company was lost. 18. Considering all the above materials in its entirety, it is clear that the 2nd respondent has not proved that book containing cover note, Ex.P9 relied on by the claimants and 1st respondent for claiming compensation from the 2nd respondent-Insurance Company was lost. 18. In all the judgments relied on by the learned counsel appearing for the 2nd respondent-Insurance Company, it has been held that the claimants have to prove that the insurance policy was in force at the time of accident and owner of the vehicle also must prove that vehicle was insured at the time of accident. In the present case, the claimants examined 3rd claimant as P.W.1 and 1st claimant as P.W.2 and deposed that the vehicle was insured with the 2nd respondent at the time of accident and produced cover note which was marked as Ex.P9. The owner of the vehicle/1st respondent was examined by the 2nd respondent as R.W.1, who deposed that he handed over the original policy, premium receipt and cover note to the Police. He was treated as hostile witness and counsel for the 2nd respondent cross-examined owner of the vehicle as R.W.1, but nothing advantageous to the 2nd respondent was elicited from R.W.1. The claimants examined P.W.4, Sub-Inspector of Police, who was not an Investigating Officer. He has deposed that policy is not available in their file. At the same time, he denied the suggestion put by the counsel for the 2nd respondent that at the time of accident, offending vehicle was not insured with the 2nd respondent. The 2nd respondent has not taken any steps to recall P.W.4 and summon the Investigating Officer to prove that evidence of R.W.1 is false. From para 18 of the judgment reported in 2016 (2) TNMAC 433 (Delhi) (referred to above), relied on by the learned counsel appearing for the 2nd respondent, it is seen that the Insurance Company has taken disciplinary proceedings against their employee, P.S. Bisht, Assistant of the Insurance Company. In the present case, no disciplinary proceeding was initiated against their official Amutha who was shown as authorised signatory and whose signature was found in the cover note as signatory. 19. In para 15 of the very same judgment, it is seen that the owner of the vehicle remained exparte before the Tribunal as well as in the appeal. In the present case, owner was examined as R.W.1. 20. 19. In para 15 of the very same judgment, it is seen that the owner of the vehicle remained exparte before the Tribunal as well as in the appeal. In the present case, owner was examined as R.W.1. 20. In the judgments relied on by the learned counsel appearing for the 2nd respondent, the stand of the Insurance Company is that the policy produced by the claimant is forged and fabricated. In the present case, it is not the case of the 2nd respondent that cover note was forged and fabricated one. On the other hand, their case is that book containing cover note No.LUB 0060607 including cover note No.098011061, relied on by the claimants was lost. The 2nd respondent has not examined the official who gave the complaint even after coming to know of the cover note produced by the claimants. Even after coming to know of the cover note produced by the claimants before the Tribunal, the 2nd respondent has not approached the Police to take action against the claimants, owner of the vehicle and Amutha, authorised signatory and D.Yogesh, their Agent. Had the 2nd respondent given a complaint to the Police against D.Yogesh, their authorised Agent, the Police would have investigated the matter and found out as to how D.Yogesh and Amutha came to possession of the cover note relied on by the claimants as well as the 1st respondent, owner of the vehicle which according to the 2nd respondent was lost in Vellore. 21. Further, in a judgment of the Division Bench of this Court reported in 2018 (2) TNMAC 215 (referred to above), the Insurance Company has let in evidence to prove that cover note relied on by the claimants in that case was issued to another Bus bearing Registration No.TN-04-K-0483, in favour of Saveetha Engineering College, Saveetha Nagar, Thandalam, Sriperumbudur and not to the offending vehicle in that case. In that case also, the owner of the vehicle remained exparte. In view of the above materials, the judgments relied on is not applicable to the facts of the present case. It is clear that the 2nd respondent failed to prove that cover note produced by the claimants in the present case is lost and was not issued by the 2nd respondent. In view of the above materials, the judgments relied on is not applicable to the facts of the present case. It is clear that the 2nd respondent failed to prove that cover note produced by the claimants in the present case is lost and was not issued by the 2nd respondent. The Tribunal considering all the materials, held that the 2nd respondent failed to prove that the cover note produced by the claimants was not issued by them. There is no error in the finding of the Tribunal, warranting interference by this Court. 22. For the above reason, these Civil Miscellaneous Appeals are dismissed and the amounts awarded by the Tribunal at Rs.1,88,000/-, Rs.2,07,500/- and Rs.10,64,000/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit are confirmed. The respondents are jointly and severally directed to deposit the award amount along with interest and costs, within a period of eight weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. Nos.511, 510 & 509 of 2011. (i) On such deposit in M.C.O.P.No.511 of 2011, the award amount is directed to be deposited in any one of the Nationalized Bank, till the minor claimant attains majority. Brundadevi, mother of the minor claimant is permitted to withdraw the accrued interest, once in three months for the welfare of the minor claimant. (ii) On such deposit in M.C.O.P.No.510 of 2011, the claimant is permitted to withdraw the award amount, along with interest and costs, after adjusting the amount, if any already withdrawn, by filing necessary applications before the Tribunal. (iii) On such deposit in M.C.O.P.No.509 of 2011, the claimants 1, 3 and 4 are permitted to withdraw their share of the award amount, along with proportionate interest and costs, as per the ratio of apportionment fixed by the Tribunal, after adjusting the amount, if any, already withdrawn, by filing necessary applications before the Tribunal. The share of the minor 2nd claimant is directed to be deposited in any one of the Nationalized Bank, till the minor attains majority. The 1st claimant, mother of the minor 2nd claimant is permitted to withdraw the accrued interest, once in three months for the welfare of the minor 2nd claimant. Consequently, connected Miscellaneous Petitions are closed. No costs.