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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.216 OF 2017
Future Generali India Insurance Company,
6th Floor, Tower-3, India Bulls Finance Center,
Senapati Bapat Marg, Elephinstonje Road,
Mumbai 400 013 .. APPELLANT
// VERSUS //
1 Smt. Maltabai wd/o Hiralal Mane,
Aged about 27 years, Occ. Household,
2 Smt. Radhabai Sampat Mane,
Aged about 62 years, Occ. Household
3 Sivprem Hiralal Mane,
Aged about 8 years, Occ. Education
4 Devkrushn Hiralal Mane,
Aged about 6 years, Occ. Education
5 Somnath Hiralal Mane,
Aged about 4 years, Occ. Education
Respodnent Nos. 3 to 5 being minors
represented through their natural
guardian mother Smt. Maltabai
All respondent nos. 1 to 5
r/o. Dattanagar, Darwha, Dist. Yavatmal
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6 Rajesh Dilip Pawar,
Aged about 31 years,
Occ. Tractor Driver,
7 Mangesh Dilip Pawar,
Aged about 31 years,
Occ. Tractor Owner,
Respondent Nos. 6 & 7
r/o. Swashin, Tq. Manglurpir,
Dist. Washim ..RESPONDENTS
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Shri. H.N.Verma, Advocate for Appellant.
Shri. A.S.Deshpande, Advocate for Respondent Nos 1 to 5.
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CORAM : S.B.SHUKRE, J.
DATE : 11.07.2017.
ORAL JUDGMENT :
Heard.
2. Admit.
3. This appeal challenges the legality and correctness of the order dated 8.9.2016, passed on an application filed under Section 140 of the Motor Vehicle Act, 1983. According to the learned counsel for the appellant, the application ought not to have been allowed because there is not in existence any insurance policy in respect of the tractor involved in the accident. He submits that ::: Uploaded on - 14/07/2017 ::: Downloaded on - 16/07/2017 00:07:21 ::: 3 the cover note filed on record by the claimants was bogus.
4. Learned counsel Shri Deshpande, for the claimants submit that this is something which has to be decided on merits of the case and not at the time of consideration of an application filed under Section 140 of the Motor Vehicles Act. The merits of the matter need not be gone into, and therefore, he supports the impugned order.
5. While it is true that merits of the matter should not be gone into at the time of deciding an application under Section 140 of the Motor Vehicles Act, still, the Court has to embark upon an inquiry the result of which would prima facie satisfy the Court that the claim made under this provision of law, is allowable against the respondents i.e. the owner and the Insurer. If, there is no prima facie material available on record showing that the vehicle involved in the accident was insured with the Insurer, no liability even under Section 140 of the Motor Vehicles Act, could be fastened upon the Insurer. ::: Uploaded on - 14/07/2017 ::: Downloaded on - 16/07/2017 00:07:21 ::: 4
6. In the instant case, the claimants have filed on record a cover note, prima facie showing that at the time of accident, the tractor was insured with this appellant. In the written statement, however, this assertion was vehemently denied by the appellant / Insurance Company contending that the Cover Note filed was fake and bogus. However, this contention was rejected by the Trial Court on the ground that the written statement cum reply filed by the appellant was not supported by affidavit. Such reason of rejection can not be seen to be illegal or perverse. Reason being that when a fact asserted by one party on oath is denied, it must be denied by following the procedure prescribed under the law, which requires specific denial on oath, which has not been done in the instant case. Therefore, I do not think that there is any substance in the present appeal but at the same time, the issue regarding the genuineness of the insurance policy having been raised, it needs to be decided appropriately on merits of the case and till that time, it is necessary that interests of the appellant are also protected and therefore, an ::: Uploaded on - 14/07/2017 ::: Downloaded on - 16/07/2017 00:07:21 ::: 5 appropriate order in that regard would have to be passed.
7. In the circumstances, the appeal stands dismissed. However, it is directed that the amount deposited in this Court by the appellant in terms of the impugned order shall be transferred to the Tribunal at Darwha, Dist. Yavatmal and it shall be invested in a fixed deposit account in any nationalized bank as per Rules, till final disposal of the application under Section 166 of the Motor Vehicle Act and till that time, it shall not be permitted to be withdrawn by the claimants.
8. No costs.
9. The Tribunal shall make an endavour to dispose of finally the application under Section 166 of Motor Vehicles Act, in accordance with law, preferably within one year from the date of this order.
JUDGE belkhede ::: Uploaded on - 14/07/2017 ::: Downloaded on - 16/07/2017 00:07:21 :::