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2023 DIGILAW 218 (JK)

National Insurance Company v. Gautam Mahajan

2023-05-31

PUNEET GUPTA

body2023
JUDGEMENT (Through Virtual Mode Srinagar) 1. The learned Motor Accidents Claims Tribunal, Jammu vide dated 18.02.1994 passed an award in favour of the claimants to the tune of Rs. 5,43,000/- along with interest @ 7.5% per annum from the date of filing of claim petition till the amount is liquidated. 2. The appellant herein, respondent company, was saddled with the liability to pay the compensation to the claimants. The appellant- Insurance Company has filed the present appeal wherein the only grievance raised by the appellant is that as on the date of the accident which took place on 11.11.1993, the vehicle in question was not registered with the Insurance Company. Infact the Insurance Policy was effective from 12.11.1993 to 11.11.1994 and not when the accident took place on 11.11.1993. The argument of the learned counsel for the appellant is that the Tribunal has failed to note that neither the Insurance Policy was in vogue nor any cover note was issued by the Insurance Company in respect of the vehicle involved in the accident. The Tribunal has relied upon the certificate in which it is stated that the insurance of the vehicle is with effect from 02.11.1993 to 01.11.1994. Infact the insurance was effective from 12.11.1993 to 11.11.1994. The letter upon which the Tribunal held the insurance liable to pay compensation awarded in favour of the petitioner cannot be treated as Insurance Policy. 3. The respondents-claimants are represented through counsel. The rest of the respondents have not appeared despite being served in the appeal. 4. Learned counsel appearing for the respondents-claimants has argued that there is no flaw in the award passed by the Tribunal. The award has been passed after considering all aspects of the case including one which is being agitated through the present appeal. The company had received the amount before the accident took place and therefore was liable to compensate claimants in the case. 5. The Tribunal while fastening the liability upon the appellant herein has considered the statement of Janak Ram witness from the respondent- Company who has admitted in his statement that he had insured the vehicle and the premium was also received in the capacity of Development Officer. The copy of the receipt is not available with the Insurance Company. The Tribunal has drawn adverse inference against the Insurance Company as the company failed to produce the record of Insurance Policy. The copy of the receipt is not available with the Insurance Company. The Tribunal has drawn adverse inference against the Insurance Company as the company failed to produce the record of Insurance Policy. The Tribunal has noted that the Insurance Company has received the premium of Rs. 3596/-. The statement of the said witness also reveals that the witness has particularly mentioned that the Insurance Policy is issued on the basis of cover note. This court may mention herein that the Tribunal though has noted that the statement of S.K. Wali, Administrative Officer, has also been recorded as a witness for the respondents yet has not analyzed the statement of the said witness. It is important to note that the said S.K. Wali, witness for the Insurance Company, has recorded in his statement before the Tribunal that the premium with regard to the Vehicle No. JKU-6457 has been deposited on 12.11.1993 and the vehicle was insured w.e.f. 12.11.1993 to 11.11.1994. The witness has also produced daily collector register and the premium of Rs. 3596/- has been deposited in serial no. 969518 and the premium was received in cash. The vehicle was insured in the name of Sukhdev Sharma. The witness also produced premium register and as per the register the premium was paid on 12.11.1993 and premium to the tune of Rs. 3596/- was received. The witness has also deposed that EXPW-JR which is stated to have been otherwise issued by the other witness Janak Ram is only a calculation sheet. EXPW-JR is a document of which Janak Ram is the author and on which the premium amount of Rs. 3596/- has been calculated. The photocopy of Insurance on the file also reveals that the Insurance Policy was in vogue from 12.11.1993 to 11.11.1994. The Tribunal has erred in holding that the vehicle was insured with the Insurance Company as on date of accident which took place on 11.11.1993. Had it been proved that the premium was infact received prior to the issuance of the Insurance Policy and the date mentioned therein the matter could have been different and the court might have considered the date of receiving of premium as valid date when the vehicle can be said to have been insured with the Company. Had it been proved that the premium was infact received prior to the issuance of the Insurance Policy and the date mentioned therein the matter could have been different and the court might have considered the date of receiving of premium as valid date when the vehicle can be said to have been insured with the Company. The insurer could be absolved of his liability though cover note or policy was not issued on that date as he had done what was required to be done by him but that is not the case herein. The statement of the Insurance witness, namely, S.K. Wali and the record produced by him makes out that the insurance with respect to the vehicle was infact paid on 12.11.1993 and not prior to that. The document dated 02.11.1993 authored by RW-Janak Ram cannot even remotely said to be the date of receiving of premium Rs.3596/- and at the most can be the information that the premium due is Rs.3596/- and nothing more. It cannot be considered either a cover note or the Insurance Policy even remotely. The reliance by the Tribunal upon the document which is letter head of the Company can be said to be mere information of the premium that is due in case the vehicle is to be insured by the insurer and not cover note or in any case insurance policy. The vehicle was not insured on the date of accident is evident from the record. 6. The finding of the Tribunal whereby the appellant had been held liable to pay the compensation awarded by it is required to be set aside and is accordingly set aside. The registered owner of the vehicle is Sukhdev Sharma which is evident from the reply to the claim petition filed before the Tribunal. Though it is claimed by Sukhdev Sharma that the vehicle was sold by him to one Raj Kumar and the vehicle was again resold to one Bal Krishan the liability to compensate the claimants shall be of Sukhdev Sharma who was registered owner of the vehicle on the date of accident. It is trite proposition of law that the registered owner of the vehicle is only liable to compensate the claimant if otherwise entitled to compensation irrespective of the fact that the registered owner claims to have sold the vehicle to someone else already when accident took place. It is trite proposition of law that the registered owner of the vehicle is only liable to compensate the claimant if otherwise entitled to compensation irrespective of the fact that the registered owner claims to have sold the vehicle to someone else already when accident took place. The said Sukhdev Sharma is liable to compensate the claimants qua the award passed by the Tribunal and not the Insurance Company-appellant herein. 7. The appeal is, accordingly, allowed and the award of the Tribunal to the extent of the liability that is fastened upon the appellant-Insurance Company is set aside and registered owner namely Sukhdev Sharma is liable to pay the compensation to the claimants. The amount, if any, deposited by the Insurance Company or disbursed to the claimants during the pendency of the appeal the same shall be payable to the appellant-Insurance Company. The claimants shall deposit the amount with the Registry, in case, any amount has been received by them during the pendency of the appeal. 8. The appeal is, accordingly, disposed of. The record of the Tribunal be sent back.