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Judgment
Instant appeal has been filed by the appellant Insurance
company under Section 173 of the Motor Vehicles Act, 1988
against the judgment and award dated 06.09.2016 passed by
learned Judge, MACT-I, Jodhpur in Claim Case No. 749/2012
whereby, the learned Judge, MACT Cases has awarded
compensation in the sum of Rs. 6,94,272/- to the claimant
respondents.
Succinctly stated, facts of the case are that a claim petition
was filed by the respondent no.1 & 2 before the Motor Accident
Claims Tribunal, Jodhpur, stating therein that on 09.06.2012,
when the deceased Jepu Khan was coming home from Ramzan ki
Dhani, at that time around 1 :15 PM one Jeep bearing No. RJ 19-
TA -0433 being driven rash and negligently by the driver hit the
Jepu Khan and consequently due to grievous injuries, he died on
the spot. As per claim petition, the deceased was 19 years of age
and was earning Rs. 9000/- per month, therefore, it was prayed in
the claim petition that a sum of Rs. 48,75,000/- may be awarded
as compensation in favour of the claimants.
The non-applicant no.1 & 2, the owner/insured and driver of
the vehicle filed reply to the claim petition and stated that the
accident was caused due to negligence of the deceased and since
the vehicle was insured with the insurance company, the liability
to pay compensation is upon the insurance company. The
appellant insurance company filed its reply and raised preliminary
objection that Vehicle No. RJ-19 TA-0433 was not insured with the
insurance company on the date of accident as the policy No.
23132002275427800000 was valid from 12.06.2012 to
11.06.2013 whereas, the accident occurred on 09.06.2012 i.e
prior to the insurance and therefore, the insurance company is not
liable to make payment of compensation.
On the basis of pleadings, the learned Judge, MACT Cases
framed following issues for consideration :-
"1. Whether on 09.06.2012 at 1:15 PM on the road from Falsund to Bhurjgarh near Ladhu Khan ki Dhani, the
non applicant no.1 Driver of vehicle No. RJ 10-TA-0433 while driving the vehicle in rash and negligent manner caused the accident due to which Jepu Khan succumbed to injuries ? 2. Whether non-applicants is absolved from liability to pay compensation to the claimants? 4. Whether the claimants are entitled to get compensation as claimed in the claim petition, if yes, from who and how much and in what proportion the claimants shall be entitled to receive the amount of compensation ?
In support of claim petition, the claimants produced Latif
Khan and Ladhe Khan and exhibited 12 documents.
Learned Judge, MACT Cases after taking into consideration
the entire facts of the case decided issue no.1 and 2 in favour of
the claimants and taking the monthly income of the deceased as
Rs. 3822/- awarded compensation in the sum of Rs. 6,94,272/- to
the claimants and the Insurance company, owner and driver were
held to be liable jointly and severally.
In this appeal, the Insurance company has challenged the
award mainly on the ground that the claimants produced the copy
of insurance policy as Exhibit 11 wherein the period of insurance
in respect of Jeep No. RJ-19 TA -0433 has been shown as
25.05.2012 to 24.05.2013 whereas the said vehicle was insured
with the appellant company for the period from 12.06.2012 to
11.06.2013 and thus the vehicle was not insured with the
appellant company on the date of incident i.e. 09.06.2012. It is
submitted on behalf of the appellant company that the insurance
policy (Ex.11) produced by the claimants is fake and correct copy
of insurance policy was tendered in evidence on behalf of
appellant company as Ex.A/1 according to which the vehicle was
insured for the period 12.06.2012 to 11.06.2013.
Learned counsel for the appellant argued that learned Judge
disbelieved the evidence produced on behalf of appellant company
and relied upon the policy produced on behalf of claimants.
Learned counsel further argued that the insurance policy is
generated through computer and there are no chances of
manipulation whereas, from the policy produced by the claimants
it appears that the same has been manipulated in order to bring
the date of accident within insurance coverage. Learned counsel
for the appellant company also argued that the owner of the
vehicle was represented before the Tribunal but he failed to
appear in the witness box or to produce the original of said
insurance policy and therefore, adverse inference ought to have
been drawn against the owner. It is submitted that since on the
date of accident there was no policy in existence in respect of
vehicle in question, therefore, appellant insurance company is not
liable to pay compensation. Learned counsel for the appellant
placed reliance on decision of Hon''ble Supreme Court in the case
of ''National Insurance Co. Ltd Vs. Sobina Iakai & Ors reported in
(2007) 7 SCC 786.
Per contra, learned counsel for the respondent claimants
submits that the appellant insurance company in order to escape
from the liability of payment of compensation has generated a
false and fabricated policy which has been produced as Exhibit A/1
showing that the vehicle was insured for the period 25.05.2012 to
24.05.2013. It is further argued that the complaint with regard to
the policy submitted by the claimant to be false and forged was
made in the year 2016. It is vehemently argued that the learned
Tribunal has rightly observed that the insurance company has
failed to prove that the policy produced by the claimants is forged
or fabricated as neither the insurance company conducted any
departmental investigation nor it initiated any civil proceedings
against the owner.
Heard learned counsel for the parties. I have gone through
the record and perused the impugned judgment/award passed by
the learned Judge, MACT cases, Jodhpur.
It is evident from the facts and undisputed that the accident
occurred on 09.06.2012, as a result of which Jepu Khan
succumbed to injuries whereas, for insurance of the vehicle in
question. However, the case set up by the appellant company is
that the insurance policy (Ex.11) produced by the owner is fake
and correct copy of insurance policy was tendered in evidence on
behalf of appellant company as Ex.A/1 being Policy No.
2313200275427800000 according to which the vehicle was
insured for the period 12.06.2012 to 11.06.2013 whereas, the
accident took place on 09.06.2012. Thus, the burden of proving
the fact that the insurance policy produced by the owner is forged
and fabricated and the vehicle in question was in fact insured for
the period 12.06.2012 to 11.06.2013 was upon the appellant
insurance company. The appellant insurance company in support
of contention produced NAW/1 Pankaj Sharma in evidence who
stated that the policy produced by the owner is forged and in this
regard a complaint was lodged before the Superintendent of
Police, Jaisalmer. However, the said witness has categorically
stated that complaint in this regard was not filed for four years
from 15.09.2012 to 12.04.2016. Further the said witness has also
denied having any knowledge with regard to the agent who issued
the said policy. The said witness has also denied having any
knowledge with regard to the fact whether the amount against the
premium was received in cheque or cash and also failed to
produce any record with regard to the receipt of premium by the
company.
It is pertinent to note that in the matter in hand, the
insurance company has admitted coverage of vehicle through
insurance policy Ex.A/1 but denied the period of coverage with
regard to which claim petition was filed under insurance policy
Ex.A/11 filed by the owner/claimant.
The accident was caused on 09.06.2012 and the claim
petition was pending before the Tribunal from year 2012 but the
insurance company did not initiate any proceedings against the
owner for producing forged and fabricated policy and it is only in
the year 2016 that a complaint was sent to the Superintendent of
Police, Jaisaler. The appellant insurance company could have
produced the record containing the receipt of premium, proposal
form, name of agent and code etc to prove that the policy
produced by the company as Exhibit A/1 is the genuine one and
was issued for the period 12.06.2012 to 11.06.2013. However, as
rightly noticed by the learned Judge, MACT Cases, the appellant
insurance company has failed to prove the same.
As far as the case of Sobina Iakai (Supra) relied upon by the
learned counsel for the appellant insurance company, the same
relates to the date and time from which the policy would be
effective. Hon''ble Supreme Court in the said case has held that
when the specific time and date is mentioned, then the insurance
policy becomes effective from that point of time and not from an
earlier point of time. Herein this case, the respondent had
produced the policy issued by the appellant insurance company
which was very much effective on the date of accident and the
appellant insurance company has failed to prove that the said
insurance policy was forged or fabricated and therefore, the case
relied upon by the counsel for the appellant is not applicable in the
facts and circumstances of the present case.
The result of the above discussion is that the finding and
conclusion recorded by the learned Judge, MACT Cases for
awarding compensation while holding the Insurance Company
liable jointly and severally is based on proper appreciation of
evidence on record. The appellant in view of the subsisting and
valid insurance contract, is under obligation to indemnify the
insured. Consequently, the appeal is hereby dismissed.