National Insurance Company vs Smt. Sarla And Ors.
2007 Latest Caselaw 2285 Del

JUDGMENT

Kailash Gambhir, J.

1. By way of this appeal, the appellant insurance company has assailed the findings of the Tribunal merely on the ground that the respondent No. 6, insured owner of the vehicle had converted the chassis number which was meant for the truck into a bus without informing the insurance company.

2. The contention of the counsel for the appellant is that a new chassis was issued at the representation of the insured and the premium as payable for truck was charged and accordingly, the insurance policy was issued for a truck and not for a bus. Counsel contends that at no point of time the owner insured got any rectification done in the policy for changing it from truck to bus after paying the extra premium. Counsel for the appellant, therefore has sought to urge that since the policy issued by the appellant was not for bus, therefore, the insurance company has no liability whatsoever to indemnify the third party. In the alternative, counsel for the appellant also submits that the appellant is entitled for recovery rights against the owner of the vehicle. In support of his argument counsel for the appellant has drawn my attention to the original policy in which in the relevant column concerning description of the vehicle the same is clearly filled by giving the description of the vehicle as 'truck'. The chassis and the engine numbers were same at the time of taking the policy. Counsel also contends that there is no dispute raised as regards the said premium paid by the insured, which was meant for a truck and not for a bus. The policy also shows that no extra premium for the passenger's risk had been paid. Counsel thus contends that in such circumstances no liability can be fastened on the appellant insurance company on account of the involvement of the bus in the said accident.

3. Per contra Mr. Dinesh Goyal, counsel for respondent No. 6 contends that there is no infirmity in the impugned award. The counsel for respondent No. 6 contends that at the time of taking the cover note, it was duly stated that the owner insured has been taking the cover note meant for the bus and not for the truck. Counsel further contends that whatever amount was demanded from the insured towards premium, the same was paid by the insured and it cannot be said that the said premium paid by the insured was meant for a truck and not for a bus. Counsel also contends that the original policy was never received by the insured, therefore, there was no occasion for the insured respondent to request for any rectification of the vehicle from truck to the bus.

4. In support of his argument counsel for the respondent has invited my attention to the cross-examination of R3W-1, Mr. Prem Chand, Development Officer of the insurance company. In the examination-in-chief the said witness stated that the body of the vehicle could be converted into a bus or a truck. In the cross-examination the said witness had admitted that he had not brought any document to show that the insurance policy had been dispatched to the owner of the vehicle. It had also been admitted by the said witness that no notice was sent to the registered owner of the vehicle to produce the registration certificate of the vehicle. Not only this, even no notice under Order 12 Rule 8 was sent by the insurance company so as to call the original policy from the insured as same is manifest from the cross-examination of the said witness.

5. It is no doubt true that the insurance policy meant for a truck could not have been converted into a bus at the whims and fancies of the insured itself and for such a conversion, necessary rectification ought to have been done by the insured. This question, however would arise only when it is established that the owner of the vehicle got the insurance only in respect of the truck and not of the bus. The proposal form which was exhibited as Ex.R3W1/1 was filled in by the said Development Officer, R3W1, who at no place mentioned that the said proposal form was meant for taking the insurance policy for a truck. Surprisingly, there is no such column in the proposal form in which such information could be given. Proposal of the cover note, Ex.R3W1/3, also does not carry any such detail except the chassis number which was duly mentioned in the said note. Similarly, in the receipt Ex.R3W1/2, nothing of this sort has been mentioned. If the insurance company has accepted the premium for a truck then at least in the cover note as well as in the receipt and in the proposal form this should have been clearly mentioned that the insurance cover is being given for the said chassis meant for a truck. The said witness of the insurance company has categorically stated that the said very chassis can be converted into a truck or even into a bus. It is, therefore, apparent that the necessary information of the chassis has to be furnished right at the initial stage and if the same has not been furnished by the insured then the fault lies on the appellant insurance company more than the insured. The insured at the time of making payment towards premium cannot be supposed to know that he is making payment towards the insurance of a bus or a truck and it is because of this reason, the Tribunal in the impugned award has observed that from the entire record he failed to find any reason for respondent No. 2, insured to get the chassis first registered as a truck and then get it converted into a bus. No inspection of the vehicle was carried out at the time of issuing of cover note and even at the later stage when the policy was alleged to have been sent by the appellant insurance company. The appellant has thus failed to place or prove anything on record to show that the respondent had got insured the truck and not the bus. In the absence of any evidence placed by the appellant, the arguments now advanced by the counsel for the appellant cannot be appreciated.

6. I also do not find any merit in the submission of counsel for the appellant that recovery rights be given to the appellant against the respondent. Once the appellant has failed to substantiate its plea in this regard before the Tribunal, no recovery rights can be granted at this stage.

7. I, therefore, do not find any merit in the present appeal.

8. Appeal stands dismissed accordingly.