National Insurance Co Ltd vs Chutu Bala Sutradhar Andanr
2021 Latest Caselaw 348 Gua

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GAHC010017062014




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : MACApp./255/2014

            NATIONAL INSURANCE CO LTD
            A GOVT. OF INDIA UNDERTAKING CO. HAVING ITS REGISTERED OFFICE
            AT NO. 3 MIDDLETON STREET, KOLKATA AND ONE OF THE REGIONAL
            OFFICE SITUATED AT G.S. ROAD, BHANGAGARH, GUWAHATI 781005



            VERSUS

            CHUTU BALA SUTRADHAR andANR
            W/O LT. PRANESWAR SUTRADHAR, R/O VILL. LALUGAON, BHATIPARA,
            P.O. KALIAGAON, P.S. BIJNI, DIST. BONGAIGAON, ASSAM. RESPONDENT
            NO. 1 IS REPRESENTING HER MINOR CHILDREN AND HER MOHTER IN
            LAW AND FATHER IN LAW IN THIS APPEAL AS WAS IND THE CLAIM
            PETITION

            2:SUKHBIR SINGH

             S/O JASWANT SINGH
             R/O DENAGAPURI LONI ROAD
             DELHI RAR 93
             TEMPORARY ADDRESS BELTOLA
             GUWAHATI OWNER OF THE VEHICL

Advocate for the Petitioner   : MR.B K PURKAYASTHA

Advocate for the Respondent :
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                                  BEFORE
                 HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                           ORDER

03-02-2021 This is an appeal preferred under Section 173 of the Motor Vehicles Act,1988 against the Judgment and Award dated 22.11.2000 passed by the learned Motor Accident Claims Tribunal, Bongaigaon (herein after MACT) in M.A.C. Case No. 170/1994.

Initially a Writ Petition WP(C) No. 3336/2001 was filed against the said Judgment before this Court which was disposed of vide an order dated 15.05.2014, whereby it was held that an appeal can be preferred under the Motor Vehicles Act, 1988 against an award questioning the quantum.

Accordingly, the present appeal has been preferred. I have heard Shri A.J. Saikia, learned counsel for the Insurance-appellant. Though notices were ultimately issued by paper publication, none has appeared for the claimants or the owner of the vehicle in question.

Though a short point is involved in the appeal, a brief narration of the facts of the case would be convenient.

The present claim arises from a motor accident occurring on 31.01.1994 at about 9 PM involving vehicle with Registration No. DL-1G/3222 in the Bongaigaon district causing death to one Praneswar Sutradhar.

Accordingly, the claim petition was filed making the owner as well as the present appellant/opposite parties. Along with the claim, a copy of the seizure list was filed to show that the vehicle in question was duly insured with the Insurance Company and such Insurance was valid upto 13.08.1994. The accident having occurred during the validity of the policy, the liability was to be indemnified by the Insurance Company.

The Insurance Company contested the claim and the principal ground of defence was that, at the time of the accident, there was no valid Insurance Policy and in the absence of such a contract, the liability of the Insurance Page No.# 3/5

Company will not arise at all.

It was also argued that the Insurance Policy was not exhibited and the only assumption regarding the valid Insurance Policy is a seizure list.

The Insurance Company had also adduced evidence and amongst the documents proved was the last valid Insurance cover which was from 14.06.1991 to 13.06.1992 and the policy was exhibited as Ext.- E.

The learned Tribunal vide the impugned Judgment and Award had decided the aforesaid issue which was Issue No. 4 in favour of the claimant by holding the Insurance Company liable.

Shri Saikia, the learned counsel for the Insurance Company submits that the approach of the learned Tribunal is wholly erroneous inasmuch as the claimants had failed to discharge their primary burden to show that the vehicle in question was under a valid Insurance cover. At the same time, the learned Tribunal erred in failing to consider the projected case of the Insurance Company including Ext.-E which was the Insurance Paper to show that the validity of the Insurance had expired on 13.06.1992.

As stated above, none of the respondents have come before this Court to contest the present appeal in spite of notice being duly published in the newspaper.

Shri Saikia, the learned counsel for the appellant further submits that in the meantime, an amount of Rs.2,72,460.00/- (Rupees Two Lakh Seventy Two Thousand Four Hundred Sixty) had already been paid by the Insurance Company to the claimant out of the awarded amount of Rs.3,47,460.00/- (Rupees Three Lakh Forty Seven Thousand Four Hundred Sixty).

To appreciate the contention of the appellant, it would be necessary to go through the discussion of the learned Tribunal so far as Issue No. 4 is concerned.

The learned Tribunal came to a finding that the Insurance Company did not produce the relevant document of the offending vehicle relating to the contract of Insurance and on the other hand, the claimant had mentioned the policy number and the validity period in the claim petition. The learned Tribunal Page No.# 4/5

also came to a conclusion that an adverse presumption can be drawn against the Insurance Company for not producing the relevant document for the period in question.

At this stage, it would be necessary to examine the materials before the Tribunal on this issue.

The claimants, in support of their claim that the vehicle in question was duly insured had relied upon one of the seizure list dated 04.02.1993 in Serial No. 4 of the said Seizure List, the following has been stated :-

4. Insurance certificate of Truck No.DL.-IG.3222 Certificate No.354501/6312517/E03/294/MGF/92 @Bhandari House (3 rd floor) 4/24- As at Ali Road New Delhi-110002. Valid up to 13.08.1994.Phone- 3269985.

Apart from the aforesaid document, no other material, whatsoever has been produced by the claimant.

On the other hand, the categorical case of the Insurance Company is that, at the time of the accident, there was no valid Insurance cover, and in support of the said contention, the Insurance Company has not only adduced evidence but has also produced the earlier policy in question which shows that the Insurance Cover was from 14.06.1991 till 13.06.1992.

Apart from that, communications made by the Insurance Company clarifying that there was no Insurance cover at the time of the accident were also exhibited.

Juxtapositioned both the materials from the side of the claimant and the Insurance Company, it is seen that the claimant had failed to discharge the initial burden of proof and apart from the statement in the seizure list, no document, whatsoever, was placed before the Tribunal.

This Court is also perplexed by the observation made by the learned Tribunal regarding drawing of adverse position for not producing the documents relating to the time of the accident. It is failed to be understood as to how an observation of drawing adverse presumption can be made for non- production of a document which does not exist. The entire concept of proof by Page No.# 5/5

a person who claims something seems to have been reversed by the learned Tribunal thereby causing immense miscarriage of justice.

In view of the above, while not interfering in the quantum of the award, it is held that, in the absence of any contract of indemnification, the appellant- Insurance Company cannot be saddled with any liability and the liability attached to the award has to be borne by the owner of the vehicle.

In that view of the matter, the instant appeal stands allowed in the manner indicated above giving liberty to the Insurance Company to take steps for recovery of the amount paid in the meantime in accordance with law.

It is clarified that since the amount in question has not been interfered with, the same would have to be borne by the owner of the vehicle and the claimant would be at liberty to take all steps for recovery of the amount from the owner.

Since the appeal has been disposed of in favour of the appellant-Insurance Company, Registry is directed to refund the amount of Rs. 25,000/- (Rupees Twenty Five Thousand) which was deposited at the time of filing of the present appeal.

LCR be sent back forthwith.

JUDGE

Comparing Assistant