ICICI Lombard General Ins. Co. Ltd vs Lallan Kumar & Ors

R.K.Gauba, J

On 10.09.2008 accident claim case (suit no. 514/ 10 /2008) was filed by the first respondent (the claimant) seeking compensation under section 166

read with section 140 of the Motor Vehicle Act, 1988 on the averments that on 12.08.2008, he had suffered injuries in motor vehicular accident that

had occurred due to negligent driving of a three-wheeler scooter bearing registration no. DL-1RG-8591(TSR). The claimant had impleaded as

respondents, the second and third respondents herein describing them as the driver and owner respectively of the TSR. Additionally, the appellant was

impleaded as a respondent in the claim case on the basis of averments that it was the insurer of the TSR against third party risk for the period in

question. The case was contested by all the said parties including the appellant. The second and third respondents have filed a joint written statement

on 23.10.2013, the pleadings contained therein also responding to the position taken by the appellant herein in its written statement submitted on

23.12.2009 denying any privity of contract disputing that the policy no. 4006/2985445/00/000 (page 255 of the tribunal’s record) which had been

referred to by the claimant was never issued as motor insurance policy, it being a forged and manipulated document. During the course of inquiry, the

second and third respondents examined Manoj Kumar (R2W1) to bring on record his version to the that the third respondent (Pushupati Pandit) had

been introduced by him to an agent name Pintu through whom the insurance policy in question had been purchased from the appellant. The appellant

on the other hand examined Vivek Yadav (r3w1) to prove its contention that the particulars given concerning the insurance policy actually relate to

money insurance policy and that no such insurance cover had been issued in respect of TSR. It is pertinent to note here that at the stage when R3W1

was examined by the appellant, the second and third respondents herein had opted to suffer the proceeding ex parte.

The tribunal, by its judgment dated 14.03.2016, however, decided to fasten the liability on the appellant observing inter alia that the document in

question clearly shows the particulars of the TSR in question referring to the possibility that the insurance company officials may have been in

collusion with the agents to dupe innocent customers.

Aggrieved with the above decision of the tribunal, the insurance company filed the present appeal denying any liability to indemnify asserting that

the document is false and fabricated one which cannot be permitted to be used.

Though having entered appearance through counsel at one stage, having served with notice, when the matter is taken up by this court, there is no

appearance by the second and third respondents. Crucially, the first respondent (collectively, the claimants) could not be found at the given address

and therefore recourse had to be made to the mode of substituted service inspite of which he has failed to appear.

Having heard the learned counsel for the appellant and having perusal of tribunal’s record, this court finds the approach of the tribunal

irresponsible. It needs to be noted here that the possibility that they had been in fabrication of documents referred to as the insurance policy issued by

the appellant had dawned even on the third respondent (the registered owner of TSR). It is for this reason that in his pleadings in the written statement

while narrating the circumstances in which he had obtained the said document as insurance cover with the help of Manoj Kumar (R2W1) from an

agent Pintu, he proceeded to inform that he was constrained to file a criminal complaint in the Court of the Metropolitan Magistrate under section 156

(3) of the Code of Criminal Procedure, 1973 pursuant to which first information report (FIR no. 360/2013) had been registered by police station New

Usman Pur of District North East Delhi offences punishable under section 420, 468, 471, 120B of Indian Penal Code (IPC).

The third respondent did not enter the witness box to affirm on oath that the insurance policy was a valid document. From the above noted

proceedings, it is his own case that the document on which he relied on was not genuine. This would only substantiate the evidence led by the

appellant through R2W1, the witness R2W1 examined by the third respondent conceded that he was not privy to payment of any premium or

insurance of insurance policy.

In the foregoing facts and circumstances, the claimant and the second and third respondents have failed to prove that the any valid insurance policy

existed so to as bind the appellant insurance company with the liability to indemnify.

In above facts and circumstances, the impugned judgment to the extent, it holds appellant liable to indemnify the appellant is set aside. The claimant

would have the liberty to proceed against the second and third respondents for recovery of the awarded compensation as they have been held jointly

and severely liable.

The matter cannot, of course ends here. It is a cause of concern that fabricated document was attempted to be used. The tribunal is directed to

hold further inquiry into that aspect and examine as to whether criminal action on its part in terms of section 195 and 340 Cr.PC is called for. For such

purposes, it shall proceed further by taking up the case on 23.11.2017. The insurance company would be obliged to participate in such inquiry as it

possibly concerns the role of its officials and agents.

The appeal and the pending application are disposed of in above terms.