Royal Sundaram Alliance ... vs Smt. Tai Wd/O Krushnaji Patil And ...
2017 Latest Caselaw 7180 Bom

                                              1




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                       NAGPUR BENCH : NAGPUR



First Appeal  No.  457 of 2017 

Appellant              :          Royal Sundaram Alliance Insurance Co.

                                  Ltd., Nagpur Branch, Shankar Nagar, In 

                                  front of Sanman Laws, Cement Road, 

                                  Nagpur, through the Manager

                                  versus

Respondents            :          1)   Smt Tai wd/o Krushnaji Patil, aged 

about 50 years, Occ: Household

2) Ravindra s/o Krushnaji Patil, aged about

26 years, Occ: nil

3) Rita d/o Krushnaji Patil, aged about 24

years, Occ: Student

4) Mahendra s/o Krushnaji Patil, aged about

21 years, Occ: Student

All residents of Plot No. 104, I.U. D. P. Colony,

District Nagpur

5) Narendra s/o Laxman Wankhede, aged

Major, Occ: Business, resident of Annabhau

Sathe Nagar, Katol, Dist. Nagpur

6) The Manager, HDFC Ergo General

Insurance Company Limited, Shriram Tower,

Next to NIT, Sadar, Nagpur

Shri D. N. Kukday, Advocate for appellant

Shri Asghar Hussain, Advocate for respondents no. 1 to 4

Shri H. N. Verma, Advocate for respondent no. 6

Respondent no. 5 served

Coram : S. B. Shukre, J

Dated : 14th September 2017

Oral Judgment

1. This appeal questions the legality and correctness of the

Award passed in Claim Petition No. 441 of 2010 by the Member, Motor

Accident Claims Tribunal, Nagpur. By this award, compensation of Rs.

18,97,762/- inclusive of no fault liability compensation together with

compensation @ 7.5% per annum from the date of petition till the date of

recovery has been granted to the dependents of Krushna Patil who had

died at the age of 54 years in a vehicular accident which occurred on

4.12.2009 at about 10.30 am near Renuka Milk Dairy, Katol. At that

time, deceased Krushna was walking towards Bus Stand, Katol and was

suddenly hit by an auto-rickshaw bearing registration No. MH-40/1581.

In this accident, deceased Krushna had sustained various injuries to

which he later on succumbed at the Government Medical College &

Hospital, Nagpur on 29.12.2009.

2. Respondents no. 1 to 4 being dependents upon the deceased,

filed claim petition under Section 166 of the Motor Vehicles Act to get the

loss suffered by them indemnified from the owner of the vehicle and

insurer. Respondent no. 5 was the owner of the offending vehicle and

initially when the claim petition was filed, respondents no. 1 to 4,

thinking that respondent no. 6 was the insurer of the offending vehicle,

joined only respondent no. 6. But, when Manager of respondent no. 6

Satish Ahuja was examined as a witness, it came to the light that the

insurance policy issued by respondent no. 6 was valid from 22.2.2010 to

21.2.2011 and whereas the accident had occurred on 4.12.2009 on

which the present appellant had covered the risk by issuing the insurance

policy. Therefore, an application was made before the Tribunal for

joining the appellant as party-respondent which was allowed and then the

appellant was permitted to contest the claim petition.

3. The appellant also filed Written Statement and contested the

claim petition. But, the appellant in its Written Statement admitted the

insurance policy which the witness Satish claimed to have been issued by

this appellant for insuring respondent no. 5, the owner of the offending

vehicle against the risk which involved in driving the offending vehicle.

4. Upon considering the evidence available on record, the

Tribunal found that the accident in this case occurred due to rash and

negligent driving of the offending vehicle by its driver and further found

that the offending vehicle being owned by respondent no. 5 and insured

with the appellant, both of them were jointly and severally liable to pay

the compensation determined by it. The impugned Award was

accordingly passed by the Tribunal.

5. Not being satisfied with the Award passed by the Tribunal,

the appellant is before this Court in the present appeal.

6. I have heard Shri D. N. Kukday, learned counsel for the

appellant; Shri Asghar Hussain, learned counsel for respondents no. 1 to

4 and Shri H. N. Verma, learned counsel for respondent no. 6. None

appears for respondent no. 6 though duly served. I have gone through

record of the case. Now, the following point arises for my determination:

Whether the appellant proves that at the relevant time

the offending vehicle was not insured with it as

insurance policy (Article A) was fake and not

genuine ?

7. Learned counsel for the appellant submits that on the face of

it, the insurance policy vide Article A can be said to be not genuine as

there are several clauses therein which are manifest on the face of the

policy and which make the policy as not genuine. He submits that the

policy number contains only fifteen digits including the code and as per

the evidence of witness Sandip Jadhav, all the policies issued by the

appellant contain sixteen digits including the code in the policy number.

He further submits that mode of payment is not mentioned in Article A

and evidence of Sandip Jadhav would show that the mode of payment is

always described in the policy. He also submits that the fact about the

insurance policy not being genuine was discovered at a later stage when

the claim proceedings were pending and immediately a complaint with

Police Station, Katol was lodged. He further submits that the insurance

policy (Article 'A') shows that it was valid for the period from 22.2.2009

to 21.2.2010. But, the acknowledgment of receipt of premium which

appears on the policy document is purported to be of 25 th February 2010

and thus, learned counsel for the appellant submits that the insurance

policy (Article A) would have to be found as not genuine and it would

also have to be said that the appellant not being the insurer of the

offending vehicle at the relevant time, is not liable to pay any

compensation to the claimants.

8. Learned counsel for the respondents no. 1 to 4 submits that

the insurance policy has been admitted in Written Statement and if

during the pendency of petition, it was learnt by the appellant that the

insurance policy was not genuine, the Written Statement could have been

amended, but was not amended. He also submits that prima facie

findings regarding the insurance policy issued by the appellant for the

offending vehicle were recorded by the Tribunal while deciding

application under Section 140 of the Motor Vehicles Act and these

findings were never challenged by the appellant before the appellate

court. Thus, he submits that now it does not lie in the mouth of the

appellant to say that the insurance policy is fake.

9. Learned counsel for respondent no. 6 submits that as

respondent no. 6 has not played any role in the instant matter,

appropriate order be passed.

10. Sofar as the arguments relating to the insurance policy

(Article A) being fake on the face of it are concerned, I must say that this

Court cannot embark upon any enquiry to ascertain as to whether this

policy is genuine or not for the simple reason that in the Written

Statement, the appellant admitted this insurance policy. It is true that the

claimants on their own never made any submission regarding the issuance

of insurance policy either by the appellant or for that matter, by any other

agency. But, when the claimants learnt through the evidence of Satish

Ahuja that in the instant case, the insurance policy was issued by the

appellant and it covered the risk of owner as a third party coming from

the use of the offending vehicle, an application for impleadment of the

appellant was moved by the claimant. It was granted by the Tribunal.

This is how the appellant came on the scene. The appellant also filed

Written statement in which the appellant admitted issuance of insurance

policy. Then, when the appellant came to know about having issued the

policy by it, through the evidence of PW 1 Sandip Ahuja and PW 2 Manish

Sharma, the appellant tried to prove that it was not the policy issued by it

and it was a fake insurance policy. However, this evidence adduced by

the appellant cannot be admitted and read in appreciation of contention

of the appellant regarding fake policy for the reason that there is no

pleading in the Written Statement to the effect that this policy is not

genuine and is a fake policy. At a later stage also, no attempt was made

to amend the Written Statement. Therefore, I find no reason to interfere

with the opinion formed by the Tribunal that Article A is the policy issued

by the appellant on the basis of which the appellant could be held to be

liable for indemnifying the loss suffered by the dependents in the instant

case. Point is answered accordingly.

11. However, having regard to the contention of the appellant

which the appellant may not have succeeded in proving in the instant

case perhaps because of lack of proper advice or lack of proper

coordination between the concerned officials, I am of the opinion that the

liberty would have to be granted to the appellant to initiate appropriate

proceedings against the owner/respondent no. 5 for prosecuting the

remedy available to it under the law including the one for recovery of the

amount of compensation which the appellant is required to pay to

respondents no. 1 to 4 in these proceedings.

12. In the result, I find that there is no merit in the appeal.

Appeal stands dismissed with no orders as to costs. However, liberty is

granted in favour of the appellant to proceed against respondent no. 5 by

prosecuting appropriate remedy including the one for recovery of the

amount of compensation being paid by to respondents no. 1 to 4.

13. CAF No. 3061 of 2017 : The appeal has been dismissed.

Therefore, this application is also disposed of and it is directed that the

amount deposited in this Court be released to the claimants in terms of

the direction given in the Award by the Tribunal. Disposed of.

S. B. SHUKRE, J

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