National Insurance Co. Ltd vs Jagdish Pandit & Others
2021 Latest Caselaw 2845 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 279 of 2018
                          ........

National Insurance Co. Ltd. ..... ..... Appellant Versus Jagdish Pandit & Others .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellant : Mr. Alok Lal, Advocate.

For the Respondent Nos. 1 & 2 : Mr. Yasir Arafat, Advocate. For the Respondent No. 4 : Mr. S.S. Choudhary, Advocate.

........

05/11.08.2021.

Heard, learned counsel for the appellant, Mr. Alok Lal, learned counsel for the claimants, Mr. Yasir Arafat and learned counsel for the Owner of the Offending Vehicle, Mr. S.S. Choudhary.

The appellant - National Insurance Company Limited has preferred this appeal against the award dated 17.11.2017 passed by learned Principal District Judge-cum-M.V.A.C.T., Sahibganj in Claim Case No. 08/2013, whereby the claimants namely, (1) Jagdish Pandit, son of Late Rameshwar Pandit and father of deceased Sagar Pandit and (2) Rupa Devi, widow of deceased Sagar Pandit, have been awarded compensation for the death of Sagar Pandit, to the tune of Rs. 5,20,000/- along with simple interest @ 6% per annum since date of settlement of issue i.e. 19.05.2016 till its realization to be paid within two months from the date of award, failing which the Insurance Company shall liable for penal interest @ 9% per annum from the date of the award till its realization. The National Insurance Company has been further directed to pay Rs. 5,000/- to Rupa Devi as loss of consortium. The amount already paid under Section 140 of the Motor Vehicles Act as ad interim compensation shall be deducted.

Learned counsel for the appellant has submitted, that the issue, which is involved in the present miscellaneous appeal, is with regard to finding recorded by the learned Tribunal, that Insurance Company has failed to establish that Insurance paper was not a genuine document, though the Insurance Company has examined Chandrakant Thakur (O.P.W.-1), the Branch Manager of National Insurance Company Limited, Sahibganj Branch, in support of their contention as pleaded in the written statement that policy is fake.

Learned counsel for the appellant has placed reliance in para- 12 at internal page-7 & 8 of the impugned award, wherein the learned Tribunal while discussing Issue No. (III) has held that:-

"The claimants have filed photocopy of Insurance Paper & Other papers on 19.09.2013 with a list of documents. The Insurance Paper bears the Motor Vehicle Insurance Cover Note No. C 578733/34/17/08, Development Officer's Agency Code - 221/343, Division or Branch Code No. 742101. The address of the issuing office has been abbreviated as "KBZ, Msd. W.B.". The period of insurance cover was 12.07.2008 to 11.07.2008.

Perhaps the abbreviation Msd. Stands for Murshidabad. The claimants have pleaded that the Insurer of the offending vehicle was National Insurance Co. Ltd. of "COSSIM BAZAR" branch. The vehicle owner has not appeared in this case. According to claimants the abbreviation 'KBZ' stands for Cossim Bazar.

The Insurer has simple denied the fact that the Policy Number C 578733/34/17/08 was issued from his Cossim Bazar branch as the office & branch of Cossim Bazar never functioned.

The O.P. has examined one witness Chandra Kant Thakur, the Branch Manager of National Insurance Co. ltd. of Sahibganj Branch. This witness has stated at para-2 of his examination-in-chief that - "Bima se sambandhit dakhil kagjat purnataa jaali hai ewam Cassim Bazar Mursidabad me apni campany ki koi sakha nahi hai"

The face of insurance paper bears the branch name in abbreviation as "KBZ". Though the claimants have pleaded the name of branch of "Cossim Bazar" but to challenge the genuinity of the insurance, the O.P. had make specific plea that -

(i) They have not any branch having 'KBZ' abbreviation.

(ii) Insurance Policy Number C 578733/34/17/08 does not exist or exists for another vehicle.

(iii) The company has no any Development Officer having agency code - '221/343', as appears on the face of the insurance paper.

(iv) If the company have any Development Officer of that very agency code, he has to come forward to prove that he has not issued the cover note.

I find and hold that the National Insurance Company Limited has miserably failed to establish the fact that the insurance paper is not a genuine document. I find and hold that the offending vehicle was duly insured under the National Insurance Company Ltd. Accordingly, these issues are being decided in favour of claimants and against the Insurer."

Learned counsel for the appellant has submitted that it was incumbent upon the Tribunal to accept the oral evidence of the Branch Manager, who has categorically stated that there is no Branch of the Company at Murshidabad and this certificate has not been issued by Cossim Bazar branch as there was no branch functioning.

Learned counsel for the appellant has further placed reliance upon the order dated 02.11.2015 passed by Coordinate Bench of this Court in M.A. No.210/2011, whereby the Court has directed the owner of the vehicle to satisfy the interim relief as there was nothing on record to show that claimants have brought on record whether any petition under Section 166 of the Motor Vehicles Act has been filed or not, as such, learned counsel for the appellant relying upon the judgment passed by the Division Bench of this Court reported in 2003 1 JCR 622 (The Oriental Insurance Company Limited vs. Rahim Ansari) and 2008 2 JLJR 365 (National Insurance Company Limited Vs. Toldi Prasad & Others), has submitted that the finding recorded by the learned Tribunal may be set aside.

Learned counsel for the appellant has further submitted that there is delay of 88 days in preferring the appeal and for condonation of the same, I.A. No.4550/2018 has been preferred.

Learned counsel for the claimants, Mr. Yasir Arafat has submitted that poor claimants are suffering from the date of accident i.e.17.07.2008 and till date claimants have only received Rs. 50,000/- as ad-interim compensation, and except that claimants have not received a single farthing. The claimants are suffering since the date of accident, which is more than 13 years ago as on today. The litigation is between the Insurance Company and the owner. The owner of the offending vehicle has not appeared before the learned Tribunal, while ad-interim order passed under Section 140 of the Motor Vehicles Act, and subsequently in the application filed under

Section 166 of the Motor Vehicles Act, even the driver and the owner of the offending vehicle have not put his appearance nor filed any written statement. It is litigation between the Insurance Company and owner of the offending vehicle, for which this poor claimants are suffering for more than 13 years in a benevolent legislation.

Learned counsel for the claimants has further submitted that the claimants are so poor that they cannot prefer an appeal for enhancement of award with regard to non-payment of future prospect and payment of meagre amount under the conventional head, in view of the judgment passed by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. reported in (2017) 16 SCC 680 (paragraph-59.4 & 59.8 respectively) as such, this Court may direct the parties to indemnify the award to the claimants, as the claimants are the poor sufferers.

Learned counsel, Mr. Sudhanshu Shekhar Choudhary, appearing on behalf of the owner of the offending vehicle has submitted that from perusal of the impugned award itself, it appears that the learned Tribunal has framed Issue No. (iii) Whether the offending vehicle was insured under the National Insurance Company Limited? and Issue No. (iv) i.e. Whether the insurance paper filed by the claimants is genuine one?

In support of that the documents, which have been brought on record are certified copy of FIR of Taljhari P.S. Case No.38/2008 dated 17.07.2008 as Exhibit-1, certified copy of charge-sheet No.48/2008, dated 31.08.2008 as Exhibit-2 and the certified copy of the order-sheets dated 19.07.2008 passed by learned ACJM, Rajmahal in G.R. Case No.266/2008 as Exhibit-3. Apart from that, Jagdish Pandit (claimant no.1) has been examined as C.W.-1 and Supan Mandal as C.W.-2.

The opposite party / Insurance Company has failed to bring on record any document except Exhibit-A i.e. certified copy of order dated 31.05.2016 passed in Civil Misc. (Execution) Case No.02/2012 and one witness namely Chandrakant Thakur, the Branch Manager of National Insurance Company Limited, Sahibganj Branch as O.P.W.-1. No document has been brought on record to suggest that National Insurance Company has no branch in the Cossim Bazar in the District

of Murshidabad at the relevant time when this policy was issued, rather it is a case where the employees after taking premium has given a cover note and now after accident denying the same at the time of satisfying the liability. The learned Tribunal has rightly held that in absence of any documentary evidence that the Insurance Company has miserably failed to establish the fact that insurance paper is not a genuine document as no contrary documentary evidence has been brought on record except the averment made by Branch Manager of different place not of Cossim Bazar branch or Murshidabad.

Learned counsel for the owner has further submitted, that the learned Tribunal has also considered, the judgment passed by the Apex Court in the case of Union of India Vs. M/s Chaturbhai M. Patel & Co. reported in AIR 1976 SC 712 and has held that Their Lordships of Hon'ble Apex Court have ruled that Fraud like any other charge of a criminal offence, whether made in civil or criminal proceedings, must be established beyond reasonable doubt. However, strange the coincidences and however grave the doubts, suspicion alone can never take place of proof.

Learned counsel for the owner has further submitted, that finding recorded by the Coordinate Bench of this Court while adjudicating Miscellaneous Appeal No. 210/2011, under Section 140 of the Motor Vehicles Act, in absence of any information to the Hon'ble Court, whether any application under Section 166 of the Motor Vehicles Act has been preferred by the claimants or not ? The same cannot be binding for the Tribunal or this Court, while adjudicating a claim application under Section 166 of the Motor Vehicles Act or Miscellaneous appeal preferred against the finding recorded by the learned Tribunal, as such, issues are adjudicated while considering application under Section 166 of the Motor Vehicles Act.

Learned counsel for the owner has further submitted that so far the Issue Nos. (iii) and (iv) are concerned, the learned Tribunal has discussed the same at paragraph-12 of the impugned award and has considered the entire materials brought on record by the Insurance Company in detail, except the oral statement of the Branch Manager,

Chandrakant Thakur of National Insurance Company Limited, Sahibganj Branch and no evidence has been brought on record contrary to the Insurance Policy issued by the National Insurance Company Limited. The Insurance Company has not brought ledger to show the Code number of the branch, the office agency Code number of the Branch or Code number of the Insurance Company, by the bringing any documentary evidence on record, even the document has not been brought on record issued by competent authority that Cossim Bazar has no branch of National Insurance Company. No documentary evidence or oral evidence has been brought on record by competent authority, rather when the matter was agitated before the learned Tribunal, it was only Chandra Kant Thakur, the Branch Manager of National Insurance Co. Ltd. of Sahibganj Branch, who has stated in para-2 of his examination-in-chief that "Bima se sambandhit dakil kagjat purnataa jaali hai ewam Cassim Bazar Mursidabad me apni campany ki koi sakha nahi hai." This oral statement cannot deny documentary evidence having all necessary facts such as Cover Note No. C 578733/34/17/08, Development Officer's Agency Code - 221/343, Division or Branch Code No. 742102, the address of the issuing office has been abbreviated as "KBZ, Msd. W.B." , the period of insurance cover was 12.07.2008 to 11.07.2008, nor any legal action has been taken for using such alleged fake certificate by the Insurance Company till today.

Learned counsel for the owner has further submitted that this cover note was handed over to the claimants, as the vehicle has been released after seeing the Insurance policy by the court of ACJM, Rajmahal, no objection has been raised by the Insurance Company at that time, as such, on the basis of such oral submission and on the basis of judgment passed by the Division Bench shall not be of any help to the Insurance Company in the present case in view of the judgment passed by the Apex Court in the case of M/s Chaturbhai M. Patel & Co. (Supra).

After hearing learned counsel for the parties and perused the materials available on record and also perused the judgment passed by the Apex Court, which has been relied by the learned Tribunal, in the case of Union of India Vs. M/s Chaturbhai M. Patel & Co.

reported in AIR 1976 SC 712, wherein the Hob'ble Apex has categorically mentioned in para-7 that :-

7. The High Court has carefully considered the various circumstances relied upon by the appellant and has held that they are not at all conclusive to prove the case of fraud. It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt: per Lord Atkin in A.L.N. Narayanan Chettyar v. Official Assignee, High Court, Rangoon [AIR 1941 PC 93 : 196 IC 404]. However suspicious may be the circumstances, however strange the coincidences, and however grave the doubt, suspicion alone can never tale the place of proof. In our normal life we are sometimes faced with unexplained phenomenon and strange coincidences, for, as it is said truth is stranger than fiction. In these circumstances, therefore, after going through the judgment of the High Court we are satisfied that the appellant has not been able to make out a case of fraud as found by the High Court. As such the High Court was fully justified in negativing the plea of fraud and in decreeing the suit of the plaintiff.

In the present case also once a plea of fraud has been taken by the Insurance Company, it was incumbent upon the Insurance Company to prove the fraud, mere oral saying that Insurance Certificate or Cover Note is fake will not negate the claim of the claimants. Accordingly, this Court finds that the compensation, which has been awarded to the claimants, is meager amount, though quantum of compensation has not been assailed before this Court. Apparently, from perusal of the impugned award, it appears that the learned Tribunal has not considered the future prospect of the deceased and less amount has been paid under the heading loss of consortium contrary to the judgment passed by the Apex Court in the case of Pranay Sethi (Para-59.4 & 59.8 respectively) (Supra), which has been delivered on 31.10.2017, whereas the impugned award has been passed on 17.11.2017, but in absence of any appeal preferred by the claimants for enhancement of the award in view of the judgment passed by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639, this Court cannot enhance the compensation,

para-8 of which is profitably quoted hereunder:-

8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.

Accordingly, in view of the discussions made above, this Court satisfied that the Insurance Company has failed to prove the allegation of fraud by bringing cogent evidence, documentary or oral evidence. Only on the oral statement of one witness Chandra Kant Thakur, Branch Manager of National Insurance Company Limited, Sahibganj Branch, this Court cannot accept the plea taken by the Insurance Company and reverse the findings recorded by the learned Tribunal.

Accordingly, the appeal, being devoid of any merits, is hereby dismissed.

So far limitation petition i.e. I.A. No. 4550/2018 is concerned, the same is hereby closed, as the appeal has already been dismissed.

The statutory amount deposited by the Insurance Company at the time of preferring the appeal shall be remitted to the learned Tribunal within four weeks by the learned Registrar General of this Court. The learned Tribunal after due notice and verification shall indemnify the same to the claimants. It is expected that the balance amount shall be indemnified to the claimants by the Insurance Company within a reasonable period as the accident is of dated 17.07.2008.

However, the Insurance Company is at liberty to take legal recourse in this matter, if so advised, before the competent court of law.

(Kailash Prasad Deo, J.) Sunil/-