Future Generali India Insurance ... vs Smt. Maltabai Wd/O Hiralal Mane ...
2017 Latest Caselaw 4351 Bom

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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

        -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                 Shri. H.N.Verma, Advocate for Appellant. 
         Shri. A.S.Deshpande, Advocate for Respondent Nos 1 to 5.
        -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

                                     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

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.

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

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