Gujarat High Court
The Oriental Insurance Company Ltd vs Gangaben Ishwarbhai Vasava on 12 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
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C/FA/488/2024 ORDER DATED: 12/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 488 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 488 of 2024
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THE ORIENTAL INSURANCE COMPANY LTD.
Versus
GANGABEN ISHWARBHAI VASAVA
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,2.1,2.2,2.3,3,3.1,3.2,4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/02/2024
COMMON ORAL ORDER
Order in First Appeal No.488 of 2024
1. The Oriental Insurance Company Limited as an appellant
has raised the appeal against the judgment dated 31.12.2022
passed by MACT (Aux.), Ankleshwar in MACP No.360 of 2013
(Old) No.134 of 2008, inter alia, on the ground that the
Tribunal has erred in concluding that the cover note of vehicle
no.CG-04-J-6811 at Ex.54 was issued by the appellant and that
cover note on the report alleged to have been issued by the
appellant is fabricated and that no such cover note was
received by the concerned office of the appellant and in
absence of insurance policy, no liability could be fastened upon
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the appellant.
2. Mr. Maulik Shelat, learned advocate for the appellant by
referring to the deposition of the claimant, the deposition of
Mr. Hemant Nayak witness of Insurance Company along with
the copy of cover note and copy of stock register and copy of
permit placing the same on record submitted that, the witness
was examined to prove that the cover note on record was not
issued by the insurance company in connection with the
vehicle involved. He further submitted that, evidence was not
appreciated in right perspective and therefore urged for
admitting the present appeal.
3. Perused the impugned judgment. The relevant cross-
examination of the officer of appellant who was arraigned as
appellant no.2 in MACP No.360 of 2013 is reflected in the
judgment. The witness Hemant Nayak was examined at Ex.27-
A who is a Divisional Manager posted at Bharuch.
4. The record suggests that in the earlier round of litigation,
where the present appellant had filed the First Appeal No.2682
of 2018 and the Court had remanded the matter to the
concerned Tribunal. After remand of the matter, witness
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Hemant Nayak - the Divisional Manager was examined. The
matter got remanded only on the limited ground of
ascertaining the fact relating to issuance of insurance policy.
The Tribunal after considering the evidence, has concluded
that the document produced by officer of opponent no.2
proves that the cover note book was issued to the
Development Officer Mr. A.S. Bhatti and the cover note
produced vide Ex.54 also names the Development Officer Mr.
A.S. Bhatti. Hence, according to the Tribunal, the document
produced by the officer examined by the opponent no.2
supports the document Ex.54. The contention was raised by
the insurance company that the cover note book was issued to
Mr. A.S. Bhatti in the year 2006. Hence, the cover note could
not have been issued in the year 2007. The Tribunal has
concluded that opponent no.2 has neither clarified about any
time limit for the use of the cover note, nor has produced any
evidence to support that say. While observing the cross-
examination, the Tribunal has concluded that the witness
states that he does not know whether there is any time limit to
use the cover note book. Hence, in view of that fact, the
contention of opponent no.2 i.e. the present appellant was not
found tenable.
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5. The perusal of relevant portion of cross-examination of
the officer at Ex.27-A refers to the accident dated 04.01.2008
which shows the involvement of truck no.CG-04-J-6811. The
R.C. Book of the truck shows the owner Gurbhejsingh
Phulasingh. The witness affirms that he has seen the cover
note so produced in his file and also affirms that the said cover
note reflects the name of the Development Officer Mr. A.S.
Bhatti, Raipur (Chhatisgarh). The cover note produced by the
appellant is no.478508 which is for the period between
18.08.2007 to 17.08.2008. The cheque no.6132601 of
Rs.26647/- is reflected in the cover note and as per the stock
register serial no.1, the cover note book no.478501 to 478525
was issued from the insurance company to Development
Officer Mr. A.S. Bhatti on 05.01.2006. The witness has no
knowledge whether there could be any time limit for the use of
the cover note book. He does not have the knowledge whether
the said Development Officer Mr. A.S. Bhatti is still in service,
nor, he has any knowledge whether there is any departmental
action against Mr. A.S. Bhatti. He has clarified that there is no
police complaint against any of the person in connection to the
cover note. The witness was put to question in the cross-
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examination to clarify that if the said cover note no.478508 is
not in connection with the vehicle involved then the witness
was asked to state the vehicle for which the cover note was
issued by the insurance company. To that, the witness showed
his ignorance and stated that he has no knowledge about it. He
also affirms that if the company issues insurance policy for the
vehicle, then, the company would keep its record. He could not
state whether there was any record in connection with the
cover note no.478508 maintained in the insurance company,
nor has any knowledge regarding the cheque number reflected
in the cover note.
6. The earlier first appeal was remanded to verify about the
existence of the policy in connection to the cover note. The
accident has taken place on 04.01.2008. In view of deposition
of the witness and assessment of the evidence, this Court is of
opinion that, the conclusion reached by the Tribunal is
consistent with the evidence on record. Whether the cover
note was followed by the policy or not could not be proved, nor
the fact could be proved under code that the cover note Ex.54
was not confirming the vehicle involved. Section-147 of the
Motor Vehicle Act, 1988 refers to the requirements of policies
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and limits of liability. Sub-section 4 is in relation to the cover
note issued by the insurer which notes under the sub-section
that if the policy of insurance is not followed to the cover note
issued within a prescribed time, the insurer shall within 7 days
of the expiry of the period of validity of the cover note, notify
the fact to the registering authority in whose record the vehicle
to which cover note have been registered or to such other
authority as the State Government may prescribe. While
Section156 clause-(a) notes that when an insurer had issued a
certificate of insurance in respect of contract between insurer
and the insured person, then, if so long as the policy described
in the certificate has not been issued by the insurer to the
insured, then it shall be deemed to have been issued to the
insured person a policy of insurance conforming in all respects
with the description and particulars stated in such certificate.
Section-145(b) gives definition of certificate of insurance which
includes even a cover note and the policy of insurance includes
certificate of insurance as defined under Section-145(d). Thus,
under the deeming provisions of the M.V. Act, it could be
considered that the insured would have been issued with the
policy of insurance in conformity to the description and
particulars stated in the certificate and where in the case after
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remanding the matter, the insurance company could not bring
on record the contrary facts as pleaded by them, this Court
does not find any reason to entertain the present appeal.
Hence, the present appeal stands rejected.
In view of the same, the remaining amount as per the
award be deposited before the Tribunal.
Order in Civil Application (For Stay) No.1 of 2024
In view of disposal of main matter being First Appeal
No.488 of 2024, cause for filing this application would not
survive and hence, the present application stands disposed of
accordingly.
(GITA GOPI,J)
TAUSIF SAIYED
