Bombay High Court
National Insurance Co. Ltd., ... vs Mrs. Zahida Begum Abdul Wahab And ... on 17 March, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.566 OF 2014
FIRST APPEAL NO.567 OF 2014
FIRST APPEAL NO.568 OF 2014
FIRST APPEAL NO.569 OF 2014
FIRST APPEAL NO.570 OF 2014
FIRST APPEAL NO.571 OF 2014
FIRST APPEAL NO.572 OF 2014
ig FIRST APPEAL NO.573 OF 2014
AND
FIRST APPEAL NO.574 OF 2014
FIRST APPEAL NO.566 OF 2014
National Insurance Co. Ltd.,
Branch at Dharampeth,
Laxmi Bhawan Square,
Nagpur, through its
Divisional Manager,
National Insurance Co. Ltd.,
Samra Complex, Jaistambh Chowk,
Amravati, Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Sumbul Fatema w/o Abdul Matin,
Aged 53 years, Occ: House-hold.
2] Abdul Matin s/o Abdul Shahid,
Aged 53 years, Occ: Labour.
Both R/o Near Masjid Ward,
Pandharkawada, Tq. Kelapur,
Dist. Yavatmal.
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3] Ravindrakumar s/o Mansukh Thakur,
Aged 36 years, Occ: Driver,
R/o Kamptee Colony, Kanhan,
Tq. & Dist. Nagpur.
4] S. Harbans Singh Shingara Singh Multani,
Age Major, Occ: Owner,
R/o Near Shanti Timber,
Flat No.415, Balaji Complex,
Kamptee Road, Nagpur. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri C.A. Anthony, Advocate for Appellant.
Shri P.R. Agrawal, Advocate for Respondent Nos.1 & 2.
----------------------------------------------------------------------------------------------------
ig FIRST APPEAL NO.567 OF 2014
National Insurance Co. Ltd.,
Branch at Dharampeth,
Laxmi Bhawan Square,
Nagpur, through its
Divisional Manager,
National Insurance Co. Ltd.,
Samra Complex, Jaistambh Chowk,
Amravati, Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Sayyed Abdul Latif s/o Mahemood Miya,
Aged 68 years, Occ: Pensioner.
2] Shaista Praveen d/o Sayeed Abdul Latif,
Aged 58 years, Occ: House-hold
Both R/o Dr. Ambedkar Ward,
Pandharkawada, Tq. Kelapur,
Dist. Yavatmal.
3] Ravindrakumar s/o Mansukh Thakur,
Aged 36 years, Occ: Driver,
R/o Kamptee Colony, Kanhan,
Tq. & Dist. Nagpur.
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4] S. Harbans Singh Shingara Singh Multani,
Age Major, Occ: Owner,
R/o Near Shanti Timber,
Flat No.415, Balaji Complex,
Kamptee Road, Nagpur. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri C.A. Anthony, Advocate for Appellant.
Shri P.R. Agrawal, Advocate for Respondent No.1.
----------------------------------------------------------------------------------------------------
FIRST APPEAL NO.568 OF 2014
National Insurance Co. Ltd.,
Branch at Dharampeth,
Laxmi Bhawan Square,
Nagpur, through its
Divisional Manager,
National Insurance Co. Ltd.,
Samra Complex, Jaistambh Chowk,
Amravati, Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Mrs. Zahida Begum Abdul Wahab,
Aged 53 years, Occ: House-hold.
2] Abdul Wahab Abdul Faiyaz.
Aged 58 years, Occ: Business.
Both R/o Mominabad Colony,
Pandharkawada, Tq. Kelapur,
Dist. Yavatmal.
3] Ravindrakumar s/o Mansukh Thakur,
Aged 36 years, Occ: Driver,
R/o Kamptee Colony, Kanhan,
Tq. & Dist. Nagpur.
4] S. Harbans Singh Shingara Singh Multani,
Age Major, Occ: Owner,
R/o Near Shanti Timber,
Flat No.415, Balaji Complex,
Kamptee Road, Nagpur. ....... RESPONDENTS
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----------------------------------------------------------------------------------------------------
Shri C.A. Anthony, Advocate for Appellant.
Shri P.R. Agrawal, Advocate for Respondent Nos.1 & 2.
----------------------------------------------------------------------------------------------------
FIRST APPEAL NO.569 OF 2014
National Insurance Co. Ltd.,
Branch at Dharampeth,
Laxmi Bhawan Square,
Nagpur, through its
Divisional Manager,
National Insurance Co. Ltd.,
Samra Complex, Jaistambh Chowk,
Amravati, Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Kazi Shoeb Salaloddin s/o Kazi
Nawaboddin, Aged 26 years,
Occ: Education, R/o Mominabad Colony,
Pandharkawada, Tq. Kelapur,
Dist. Yavatmal.
2] Ravindrakumar s/o Mansukh Thakur,
Aged 36 years, Occ: Driver,
R/o Kamptee Colony, Kanhan,
Tq. & Dist. Nagpur.
3] S. Harbans Singh Shingara Singh Multani,
Age Major, Occ: Owner,
R/o Near Shanti Timber,
Flat No.415, Balaji Complex,
Kamptee Road, Nagpur. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri C.A. Anthony, Advocate for Appellant.
Shri P.R. Agrawal, Advocate for Respondent No.1.
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FIRST APPEAL NO.570 OF 2014
National Insurance Co. Ltd.,
Branch at Dharampeth,
Laxmi Bhawan Square,
Nagpur, through its
Divisional Manager,
National Insurance Co. Ltd.,
Samra Complex, Jaistambh Chowk,
Amravati, Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Mrs. Kalimunissa Abdul Hafeez Siddique,
Aged 50 years, Occ: House-hold work.
2] Abdul Hafeez Siddique s/o Abdul Gani
Siddique, Aged 58 years,
Occ: S.T. Driver,
Both R/o Mominabad Colony,
Pandharkawada, Tq. Kelapur,
Dist. Yavatmal.
3] Ravindrakumar s/o Mansukh Thakur,
Aged 36 years, Occ: Driver,
R/o Kamptee Colony, Kanhan,
Tq. & Dist. Nagpur.
4] S. Harbans Singh Shingara Singh Multani,
Age Major, Occ: Owner,
R/o Near Shanti Timber,
Flat No.415, Balaji Complex,
Kamptee Road, Nagpur. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri C.A. Anthony, Advocate for Appellant.
Shri P.R. Agrawal, Advocate for Respondent Nos.1 & 2.
----------------------------------------------------------------------------------------------------
FIRST APPEAL NO.571 OF 2014
National Insurance Co. Ltd.,
Branch at Dharampeth,
Laxmi Bhawan Square,
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Nagpur, through its
Divisional Manager,
National Insurance Co. Ltd.,
Samra Complex, Jaistambh Chowk,
Amravati, Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Aslamkhan s/o Hamidkhan Pathan,
Aged 30 years, Occ: Business,
R/o Ambedkar Ward,
Pandharkawada, Tq. Kelapur,
Dist. Yavatmal.
2] Ravindrakumar s/o Mansukh Thakur,
Aged 36 years, Occ: Driver,
R/o Kamptee Colony, Kanhan,
Tq. & Dist. Nagpur.
3] S. Harbans Singh Shingara Singh Multani,
Age Major, Occ: Owner,
R/o Near Shanti Timber,
Flat No.415, Balaji Complex,
Kamptee Road, Nagpur. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri C.A. Anthony, Advocate for Appellant.
Shri P.R. Agrawal, Advocate for Respondent No.1.
----------------------------------------------------------------------------------------------------
FIRST APPEAL NO.572 OF 2014
National Insurance Co. Ltd.,
Branch at Dharampeth,
Laxmi Bhawan Square,
Nagpur, through its
Divisional Manager,
National Insurance Co. Ltd.,
Samra Complex, Jaistambh Chowk,
Amravati, Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Mrs. Jubeda Begum w/o Kazi Gajanfurali Khan,
Aged 53 years, Occ: Household.
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2] Kazi Gajanfur s/o Ali Khan,
Aged 58 years, Occ: Labour.
Both R/o Near Masjid Ward,
Pandharkawada, Tq. Kelapur,
Dist. Yavatmal.
3] Ravindrakumar s/o Mansukh Thakur,
Aged 36 years, Occ: Driver,
R/o Kamptee Colony, Kanhan,
Tq. & Dist. Nagpur.
4] S. Harbans Singh Shingara Singh Multani,
Age Major, Occ: Owner,
R/o Near Shanti Timber,
Flat No.415, Balaji Complex,
Kamptee Road, Nagpur. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri C.A. Anthony, Advocate for Appellants.
Shri P.R. Agrawal, Advocate for Respondent Nos.1 & 2.
----------------------------------------------------------------------------------------------------
FIRST APPEAL NO.573 OF 2014
National Insurance Co. Ltd.,
Branch at Dharampeth,
Laxmi Bhawan Square,
Nagpur, through its
Divisional Manager,
National Insurance Co. Ltd.,
Samra Complex, Jaistambh Chowk,
Amravati, Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Mrs. Nusarat Parveen w/o Kasamali,
Aged 53 years, Occ: Household work.
2] Kasamali s/o Gulam Rasul (dead).
Both R/o Maulana Azad Ward,
Pandharkawada, Tq. Kelapur,
Dist. Yavatmal.
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3] Ravindrakumar s/o Mansukh Thakur,
Aged 36 years, Occ: Driver,
R/o Kamptee Colony, Kanhan,
Tq. & Dist. Nagpur.
4] S. Harbans Singh Shingara Singh Multani,
Age Major, Occ: Owner,
R/o Near Shanti Timber,
Flat No.415, Balaji Complex,
Kamptee Road, Nagpur. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri C.A. Anthony, Advocate for Appellants.
Shri P.R. Agrawal, Advocate for Respondent No.1.
----------------------------------------------------------------------------------------------------
ig FIRST APPEAL NO.574 OF 2014
National Insurance Co. Ltd.,
Branch at Dharampeth,
Laxmi Bhawan Square,
Nagpur, through its
Divisional Manager,
National Insurance Co. Ltd.,
Samra Complex, Jaistambh Chowk,
Amravati, Tq. & Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Mrs. Fahemeeda Paraveen Shabbir Khan,
Aged 50 years, Occ: House-hold.
2] Shabbir Khan Daulat Khan,
Age 63 years, Occ: Labour work.
Both R/o Mominabad Colony,
Pandharkawada, Tq. Kelapur,
Dist. Yavatmal.
3] Ravindrakumar s/o Mansukh Thakur,
Aged 36 years, Occ: Driver,
R/o Kamptee Colony, Kanhan,
Tq. & Dist. Nagpur.
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4] S. Harbans Singh Shingara Singh Multani,
Age Major, Occ: Owner,
R/o Near Shanti Timber,
Flat No.415, Balaji Complex,
Kamptee Road, Nagpur. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri C.A. Anthony, Advocate for Appellants.
Shri P.R. Agrawal, Advocate for Respondent Nos.1 & 2.
----------------------------------------------------------------------------------------------------
CORAM: R.K. DESHPANDE, J.
th MARCH, 2016.
DATE: 17
COMMON JUDGMENT
1] In an accident of collision on 22.05.2006 between the two
vehicles, one Maroti van bearing registration No.MH-30 B-7739, and the
other truck bearing registration No.MH-31 AP-6046, seven persons, who
were the occupants in the Maroti van died, whereas two persons therein
suffered an injury. Total nine separate Claim Petitions bearing
Nos.51 of 2006, 44 of 2006, 46 of 2006, 12 of 2007, 43 of 2006,
14 of 2007, 49 of 2006, 34 of 2006 and 48 of 2006, were filed in the
Motor Accident Claims Tribunal at Kelapur under Section 166 of the
Motor Vehicles Act.
2] All these claim petitions have been allowed by separate
judgment and order dated 02.01.2014, and the owner of the offending
vehicle i.e. truck, the driver, and the appellant - National Insurance
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Company Limited are held jointly and severally liable to pay the amount
of compensation awarded separately in each of the cases along with
interest at the rate of 7.5% per annum from the date of filing of the
claim petition till its realization. The Insurance Company has preferred
all these appeals before this Court.
3] The Tribunal has recorded the finding that the driver of the
truck was rash and negligent in driving the vehicle which dashed the
Maroti van. The finding is recorded that the said truck was insured with
the appellant - Insurance Company. The policy of insurance was valid
and effective on the date of occurrence of the accident i.e. 22.05.2006,
and hence, the Insurance Company is liable to indemnify the owner in
respect of the risk.
4] The Tribunal has held that the claimants have produced on
record the policy of the truck at Exhibit 44 issued on 20.04.2006 valid
for the period from 28.04.2006 to 27.04.2007. It is held that the
appellant - Insurance Company has failed to establish its defence that
the policy at Exhibit 44 produced on record was fake, and that no
premium was paid on 20.04.2006 for issuance of policy. The Insurance
Company placed on record the policy in respect of the offending vehicle
i.e. the truck in question at Exhibit 60, which was issued on 28.04.2005,
to urge that the policy was valid for the period from 28.04.2005 to
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27.04.2006. The Tribunal has held that though the Insurance Company
maintained the register of premium paid by the insured, the
appellant - Insurance Company has failed to produce the same on record
to indicate that on 20.04.2006 no premium was paid in respect of the
offending vehicle to renew the policy for the period from 28.04.2006 to
27.04.2007.
5] Shri Anthony, the learned counsel appearing for the
appellant - Insurance Company in all these matters has invited my
attention to the stand taken in the written statement by the Insurance
Company, in the amended paragraph 14 to the effect that the offending
vehicle was not insured with the Insurance Company on the date of
accident, but it was insured for the earlier period under the Policy
No.280405/31/05/6300000505, which was valid from 28.04.2005 to
27.04.2006. He has also invited my attention to the oral evidence of one
Mangesh Ramchandra Karanjkar, the Divisional Manager working in the
Dharampeth Branch of the Company at Nagpur, who has produced
during the course of evidence, the policy at Exhibit 60 in respect of the
offending vehicle, valid for the period from 28.04.2005 to 27.04.2006.
This witness has stated in his examination and cross-examination that
the insurance policy at Exhibit 44 was not issued by the office, and the
policy appears to be fake one. The learned counsel has also urged that
the burden of proof to establish that the policy was issued in response to
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the premium paid was upon the owner of the offending vehicle, and not
upon the Insurance Company. He has relied upon the decision of this
Court in case of Bajaj Allianz General Insurance Co. Ltd., Nagpur vs.
Pushpa @ Bebi Bholanath Zade and others reported in 2014(6) Mh.L.J.
577.
6] The points for determination in the present case are as
under:
i] Whether the Tribunal has committed an error in holding
that the appellant - Insurance Company is jointly and
severally liable to pay the compensation awarded by it in all
the cases?
ii] Whether the appellant - Insurance Company is liable to be
discharged from its liability to make the payment of
compensation?
7] The undisputed factual position available on record is stated
below:
The accident in question occurred on 22.05.2006 involving
two vehicles; one being the Maroti van bearing registration No.MH-30
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B-7739 and another being the truck bearing registration No.MH-31
AP-6046. The petitions were filed on or about 16.06.2006 along with
which, the policy of the offending vehicle said to have been secured from
the police authorities along with the Form-AA at Exhibit 40 was placed
on record. Perusal of Exhibit 40 shows that it is dated 05.06.2006 and
contains policy number and the period of its validity as 28.04.2006 to
27.04.2007, duly signed by the Police Inspector of Police Station, Wani.
8]
The written statement was filed by the Insurance Company
on 13.04.2007 in which it was not the defence raised that the policy
produced by the claimants was fake or that no premium was paid for
renewal of policy from 28.04.2006 to 27.04.2007. On 17.04.2009 an
application for amendment of written statement was filed by the
appellant - Insurance Company raising the defence in paragraph 14-B as
under:
14-B. It is submitted that the said vehicle bearing
No.MH-31 /AP-6046 involved involved in the accident was not
insured with this N.A.No.3 on the date of accident but it was
insured earlier under Policy No.280405/31/05/6300000505
which is valid from 28/4/05 to 27/4/2006 and the same was
expired prior to the accident date but the applicant misled this
Hon'ble Tribunal by making false allegations in order to show
that the said vehicle was insured on the date of accident when
it was not so insured on the date of accident. The earlier
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Insurance Policy has already been expired on 22/5/2006 i.e.
prior to the date of accident. Hence in no case this N.A.No.3 is
liable for any sor of compensation and the N.A.No.3 is entitled
to be discharged from this case forthwith.
On 14.10.2011 the claimant in Claim Petition No.34 of 2006 examined
herself and she was cross-examined on 16.11.2011. The policy produced
by the claimant was marked as Exhibit 44 subject to the objection that it
was not issued by the office. Thereafter, the appellant - Insurance
Company examined the sole witness on 22.03.2013, and in his evidence
for the first time, the policy at Exhibit 60 dated 28.04.2005 was
produced indicating that the said policy was in force during 28.04.2005
to 27.04.2006.
9] It is not the finding recorded by the Tribunal that the
insurance policy at Exhibit 44 produced by the appellant was fake.
On the contrary, the finding is that though, the witness Mangesh
Karanjkar, the Divisional Manager examined by the Insurance Company
stated in his oral evidence that after deposit of the premium, the receipt
is issued to the insured, and the office is holding duplicate receipt book,
and is also maintaining the policy issuance register, such documents
were not produced on record by the Insurance Company. Though, the
owner of the vehicle was party respondent in all the claim petitions, and
the notices were issued to him, he was proceeded ex-parte, and he
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neither filed the written statement nor examined any witnesses or
cross-examined the witness examined by the claimant or by the
Insurance Company.
10] As per the decision of this Court in Bajaj Allianz General
Insurance Co's case relied upon by Shri Anthony, no doubt the burden of
proof to establish that the policy was issued on 20.04.2006 in response
to the premium so paid, was upon the owner of the offending vehicle,
but since it was the defence raised by the Insurance Company, it ought to
have called and examined the owner of the vehicle as a witness.
Otherwise the Insurance Company fails in its defence. No doubt that in
the decision relied upon by Shri Anthony, the Insurance Company was
exonerated/discharged, but it was on a specific finding that the policy of
insurance produced on record was found to be fake. In the present case,
as stated earlier, the Tribunal has not recorded any such finding in
respect of the policy at Exhibit 44.
11] The contention before this Court that the policy at
Exhibit 44 was fake, cannot be accepted for numerous reasons including
that there is no cross-examination of the claimant, who produced the
policy at Exhibit 44 and there was no question put to the witness asking
for the source from which the policy is produced. From the record, it
seems that the claimants were supplied the said policy by the police
fa566.14 + .J.odt 16/17
authorities along with the information, which was furnished in Form-AA
at Exhibit 40. The factum of existence of policy is established upon its
production. The claim petition was filed on 16.06.2006 along with policy
at Exhibit 44. In the written statement filed on 13.04.2007, no dispute
was raised about the existence of such policy or its fakeness. The defence
that policy at Exhibit 44 is fake was raised for the first time on
17.04.2009 i.e. after three years and the policy at Exhibit 60 was
produced on 22.03.2013.
12] Perusal of the policy at Exhibit 44 shows that it was
produced in the proceedings in which the driver of the truck was
prosecuted, and it bears an impression of an endorsement in the
prosecution case, about it being verified from the original and found to
be true and correct. Merely because, the appellant - Insurance Company
has produced the policy for the earlier period, no inference can be drawn
that the policy produced for the subsequent period becomes fake.
The claimants had neither paid premium nor had insured the offending
vehicle, and hence they are not supposed to produce the receipt of
payment of premium. The payment of premium for policy appears to be
made on 20.04.2016. Significantly it is not the specific stand even in the
amended written statement that no premium was paid on 20.04.2016 in
respect of renewal of policy of the offending vehicle and the Tribunal has
recorded the finding that the Insurance Company has failed to produce
fa566.14 + .J.odt 17/17
register of entries 20.04.2016 in respect of receipt of premium.
13] So far as, the offending vehicle i.e. truck in the present case
is concerned, all the deceased persons, and the persons who were injured
in the accident in question are third parties, and the Insurance Company
cannot avoid its liability of making payment to the claimants.
The question is not about the payment of compensation to the claimants,
but the question is of indemnifying the owner of the offending vehicle in
respect of compensation, which the Insurance Company is now required
to pay to the claimants. In the absence of finding that the policy
produced at Exhibit 44 was fake, no fault can be found with finding
recorded by the Tribunal holding the appellant - Insurance Company
jointly and severally liable to make the payment of compensation along
with the owner and the driver of the vehicle.
14] In the result, all these appeals are dismissed with no order
as to costs.
15] It is informed that the Insurance Company has deposited the
entire amount in all these appeals, which the claimants are permitted to
withdraw along with the interest accrued thereon till this date.
JUDGE
NSN
