Delhi High Court
United India Insurance Company ... vs Ek Bahadur & Anr. on 24 May, 2016
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th May, 2016
+ MAC.APP. 858/2014
UNITED INDIA INSURANCE COMPANY LTD ..... Appellant
Through: Mr. L.K. Tyagi, Adv.
versus
EK BAHADUR & ANR. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. First respondent (claimant) suffered injuries in a motor vehicular
accident that occurred at about 12.30 a.m. on 10.02.2010 in the area of Rani
Chowk, bus stand Okhla Tank when, as a pedestrian, he was hit by a
motorcycle bearing No. DL 9SM 9585 (the motorcycle) which was owned
and driven by the second respondent herein. He (claimant) instituted an
accident claim case (Suit No.328/2011/2010) on 05.03.2010 seeking
compensation for injuries suffered under Sections 166 and 140 of motor
Vehicles Act, 1988 (MV Act) impleading, besides the second respondent
(owner-cum-driver), the appellant insurance company (insurer) on the plea
that the accident had occurred due to negligent driving of the motorcycle
and that the vehicle was covered against third party risk by an insurance
policy issued by the appellant.
2. The tribunal held inquiry and on the basis of evidence returned a
finding, by judgment dated 18.07.2014, upholding the case of the claimant
about the injuries being suffered due to negligent driving of the motorcycle.
It awarded compensation in the sum of ` 1,44,108/- with interest in favour
of the claimant.
3. While contesting the claim case before the tribunal, the insurance
company took the plea that the motorcycle was not covered by any
insurance policy on the date of accident (10.02.2010). It proved a copy of
the insurance policy (Ex.R2W1/X) which indicates the insurance cover to
have commenced from 11.03.2010 and to be valid upto 10.03.2011. The
second respondent, on the other hand, took the plea that he had paid the
premium and had been issued the cover note on 10.02.2010, and, therefore,
the insurance company was liable to indemnify. He examined himself (as
R2W1), inter alia, to prove document (Ex.R2W1/DX) on the strength of his
own affidavit (Ex.R2W1/1) describing the said document as cover note. The
insurance company, per contra, by evidence of its witness Lalit Kumar
(R1W1), Assistant Manager deposing on the basis of his affidavit
(Ex.R1W1/A) described the said document (Ex.R1W1/DX) as a mere
proposal, that too a fabricated document. It also relied on cash receipt
(Ex.R2W1/1) to claim that the premium against the insurance policy
(Ex.R2W1/X) had actually been tendered and paid on 09.03.2010. During
his cross-examination, the second respondent (owner-cum-driver) admitted
that he was unable to produce any cash receipt whereby the premium may
have been paid by him. He did not produce any document (other than
Ex.R1W1/DX) to prove the existence of insurance policy in respect of the
offending vehicle for the period in question.
4. The tribunal rejected the plea of the insurance company and held it
liable to indemnify, inter alia, observing that the conspiracy between the
second respondent (owner) and agent/officials of the insurance company
could not be ruled out and, therefore, the insurance company was at liberty
to initiate criminal investigation/prosecution and in case the registered
owner of the vehicle was found guilty of forgery and fabrication, it could
recover the awarded compensation from him.
5. By the appeal at hand, the insurance company argues that it was the
burden of the owner of the offending vehicle (second respondent) to prove
that a valid insurance policy existed. It is the submission that since no such
proof was adduced, the view taken by the tribunal cannot be sustained.
6. Inspite of notice, the second respondent has failed to put in any
contest to the appeal.
7. Having heard arguments on behalf of the appellant and having gone
through the tribunal's record, this Court finds the view taken by the tribunal
to be wholly erroneous. The document (Ex.R1W1/DX) is wrongly
described by the second respondent as cover note. It was definitely not a
cover note. It was merely a proposal form which was "subject to
acceptance" and declared on the top that it could not even be treated as "a
proof of insurance" and hence was "not enforceable at law".
8. It is questionable as to how the tribunal could read the above-
mentioned as a cover note so as to give the benefit to second respondent.
The insurance policy and the cash receipt produced in support of the
evidence by the insurance company clearly show that its liability to
indemnify commenced only w.e.f 11.03. 2010. In absence of any evidence
whatsoever showing existence of an insurance policy covering the period in
question, liability could not have been fastened on the appellant company.
9. In the result, the appeal is allowed. The direction to the appellant
company to pay compensation is set aside. The claimant (first respondent)
who also did not appear in appeal inspite of notice is at liberty to take out
appropriate proceedings before the tribunal to recover the compensation
from the second respondent (owner-cum-driver).
10. The amount of ` 50,000/- deposited by the appellant company in
terms of order dated 19.09.2014 and the statutory deposit, if made, shall be
refunded.
11. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 24, 2016
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