Bombay High Court
The Oriental Insurance Co. Ltd. ... vs Mr. Nilesh Harish Jaiswani & 2 Ors on 29 May, 2017
Bench: B.P. Dharmadhikari
fa982.08.J.odt 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.982 OF 2008
The Oriental Insurance Co. Ltd.,
Rayat Haweli, Old Cotton Market,
Akola, through its the Divisional Manager
(D.O.No.2), Palm Road, Civil Lines,
Nagpur. ....... APPELLANT
...V E R S U S...
1] Mr. Nilesh s/o Shri Harish Jaiswani,
Aged Major, Occ: Student,
R/o Sindhi Colony, Akot, Dist. Akola.
(Minor at the time of filing claim but
became major by now. Hence impleaded
as such).
2] Mr. Sk. Ismail Sk. Karamat Musa,
Aged 39 years, Occ: Business,
R/o Chapsala, Dist. Amravati.
3] Mr. Ab. Rafiq Ab. Khalil Musa,
Age: Adult, Occ: Business,
R/o Anjangaon Surji (Athawadi
Bazar) Dist. Amravati. ....... RESPONDENTS
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None for Appellant.
Shri A.J. Thakkar, Advocate for Respondent No.1.
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CORAM: B.P. DHARMADHIKARI, J.
DATE: 29 th
MAY, 2017.
ORAL JUDGMENT
1] Matter was called out for hearing on 26.05.2017.
fa982.08.J.odt 2/4
Advocate Thakkar representing respondent No.1 was only present.
Nobody appeared for appellant or other respondents.
2] Today situation is not different.
3] Advocate Thakkar submits that cover note clearly
show that offending truck was insured with appellant - Insurance
Company. Burden to show that it was not so insured is upon the
appellant, which has not been discharged. He has read out
discussion in paragraphs 17, 18 and 19 of the judgment delivered
by Motor Accident Claims Tribunal, Akot in Motor Accident Claim
Petition No.5 of 2005 and relevant evidence.
4] The fact that vehicle was insured with appellant -
Insurance Company is asserted in his written statement by non-
applicant No.1-driver in paragraph 8. Non-applicant No.2 owner
has also affirmed it in paragraph 8 of his separate reply.
5] In its reply respondent No.3-Insurance Company
(present appellant) has in paragraph 5 stated that it tried to
obtain the details about the insurance and its Khamgaon Branch
has on 12.09.2002 replied that subject cover note was not
fa982.08.J.odt 3/4
pertaining to Khamgaon Branch. Perusal of evidence of Sunil
Purshottam Bharadwaj, Regional Office, Oriental Insurance
Company reveals that in cross-examination his attention was
drawn to information supplied by R.T.O. As per that information
(Exh.82) offending vehicle was insured by appellant for period
from 09.04.1993 to 08.04.1994. His cross-examination shows that
he could not prove correspondence between various offices of
appellant - Insurance Company at Amravati, Washim and
Khamgaon. His examination in chief itself shows that he was not
certain whether truck was insured with his employer insurance
company or not.
6] As per cover note and information with R.T.O.
offending truck was insured on the date of accident i.e. on
26.12.1993 with appellant - Insurance Company. Appellant -
Insurance Company has tried to take advantage of the fact that
insurance documents were not being produced by either the
claimant or then the owner. When name of appellant appeared as
insuring company in R.T.O record, burden definitely shifted to
appellant to bring on record necessary material. The respondent
could have rebutted contents of Exh.82 by pointing out non-use of
alleged cover note number between said period or by producing
fa982.08.J.odt 4/4
other record to show that no such business was transacted by it on
a particular date. It could have asserted that records with it do not
show that offending truck was insured with it.
7] The M.A.C.T. has looked into all the relevant
materials. Hence, its conclusion cannot be said to be perverse.
8] I, therefore, find that the approach of the M.A.C.T. is
just and proper. No case is made out for warranting interference.
Accordingly, the appeal is dismissed. Rule discharged. No costs.
JUDGE
NSN
