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Judgment
R.K.Gauba, J
Vinod Kumar Tiwari was riding motorcycle on 08.07.2008 when he came to be involved in a collision with bus bearing registration No.DL-1P-6841
(the bus) driven by the seventh respondent (Satish Kumar), it being a vehicle registered in the name of the eighth respondent (Yudhisthar). He
suffered injuries and died in the consequence. His wife and other members of the family dependent on him, they being first to sixth respondents
(collectively, the claimants), instituted accident claim case (Suit No.01/2009) on 13.10.2008 seeking compensation under Section 166 of the Motor
Vehicles Act, 1988, on the averments that the accident had occurred due to negligent driving of the bus. The appellant insurance company was shown
in the array of respondents on the averment that the bus was insured with it to cover third party risk for the period in question, this apparently on the
basis of information made available by the eighth respondent (registered owner of the bus). The tribunal held inquiry in the course of which the eighth
respondent, joined by the seventh respondent, put in contest, inter alia, relying on plea of insurance cover. The evidence on this issue was adduced by
them wherein eighth respondent appeared as witness (R2W4), also examining Ashok Kumar Tiwari (R2W3), agent of the appellant insurance
company, stationed in Noida, Sector 16, besides other witnesses relating to different facts. In the course of such evidence, reliance was placed on a
document (Ex.R2W2/2) purporting to be an insurance policy issued in favour of the eighth respondent in respect of bus for the period 05.07.2008 to
04.07.2009. R2W3 claimed that he, as “SO†for Sector 16, Noida branch of the insurance company, had received the premium from the eighth
respondent, in cash, in the amount of Rs.14,281/- on 05.07.2008 which was deposited by him with the insurance company on the same date and in
which view the certificate-cum-policy had been issued, it being dated 05.07.2008.
In contrast, the insurance company through its witness Gaurav Gaba (R3W1) Manager Legal proved proposal form (Ex.R3W1/B), copy of the
cheque (Ex.R3W1/C) dated 09.07.2008 for an amount of Rs.14,281/- towards premium, copy of inward tracking system (R3W1/D), copy of the
quotation (Ex.R3W1/E), and the original insurance policy (Ex.R3W1/A) issued on such basis by the appellant insurance company, the said policy
showing date of its commencement to be 09.07.2008.
The insurance company argued before the tribunal that the document relied upon by the eighth respondent, in which regard his witnesses (R2W3
and R2W4) had deposed, was forged and fabricated, the documents having been created by them in collusion with each other.
The tribunal, by the impugned judgment dated 07.07.2010, accepted the claim of the claimants for compensation on the basis of finding that the
death of Vinod Kumar Tiwari had been caused due to negligent driving of the bus by the seventh respondent. Compensation determined by the said
judgment was ordered to be paid by the appellant insurance company, its plea regarding forgery of the documents showing the insurance cover from
05.07.2008 having been rejected with observation that such fact had been “reasonably provedâ€, the insurance company being “at liberty to
take action in accordance with law against their agent or any person who has committed forgery of the policyâ€, since such dispute “would be
beyond the scope of†the inquiry before the tribunal.
The appeal at hand was filed by the insurance company submitting grievance that the liability to pay the compensation has been fastened on it on
the basis of forged and fabricated documents, the approach of the tribunal in short-shifting the serious issue raised by the insurance company being
incorrect.
The appeal of the insurance company (MAC APP.604/2010) was entertained by order dated 13.09.2010 when notice was issued to the
respondents and the operation of the impugned award was stayed, subject to the insurance company depositing the entire awarded amount. The
insurance company complied with the said directions and on the basis of its submission, by order dated 20.01.2011, it was directed that the said
deposited amount would be kept in fixed deposit receipt initially for a period of six months with provision for auto-renewal. On 22.02.2011, the
claimants moved an application (CM No.1312/2011) seeking release of the awarded amount and, there being no opposition by the insurance company,
the prayer was granted and the amount deposited by the insurance company was made over to the claimants for satisfaction of their claim under the
award.
Against the above backdrop, the issue raised by the insurance company cannot survive against the claimants but can be considered only qua
seventh and eighth respondents.
It may be added here that the claimants had submitted on 27.11.2010 objections to the appeal. A perusal of the said objections would show that they
related to the contentions of the insurance company vis-Ã -vis forgery of the documents concerning the insurance cover. It appears, on account of
some confusion, the said objections were treated as cross-objections and, therefore, ordered to be registered as independent appeal (MAC
APP.2/2011). Given the above facts and the view being taken herein, the said objections of the claimants also would not need any further
consideration since the plea of the insurance company will now have to be treated as one for recovery rights only against seventh and eighth
respondents, i.e., driver and registered owner of the bus.
The seventh and eighth respondents have not appeared when the appeal is taken up for hearing.
This court finds the observations recorded and the reasons set out by the tribunal in rejecting the contention of the insurance company about
absence of the insurance cover for the relevant period to be wholly misdirected and erroneous. The issue as to whether the vehicle is covered by a
valid and effective insurance policy is an issue which directly and substantially arises in the inquiry into a claim petition before the accident claims
tribunal and it has to be determined in the same very proceedings. The contentions urged by the insurance company to the effect that the document
presented by the driver and owner, or affirmed at their instance by R2W3, in collusion, is very serious and required due consideration and
determination. The issue cannot be sidelined and rather will have to be adjudicated upon.
For the foregoing reasons, the issue as to whether the documents relied upon by the seventh and eighth respondents were genuine or otherwise or,
to put it simply, as to whether the bus was covered by a valid insurance policy on the date of accident is remitted to the tribunal for further inquiry and
proper adjudication. For such purposes, the parties, i.e., the appellant insurance company on one hand and the driver and the owner of the offending
vehicle (the bus) on the other are directed to appear before the tribunal on 25th October, 2017. The issue as to whether the appellant insurance
company shall be liable to indemnity the eighth respondent (owner of the bus), thus, stands revived and the impugned judgment to the extent it made
observations having a bearing on the same stands set aside.
The tribunal will give additional opportunity to all sides to lead further evidence, if any. But since seventh and eighth respondents have not
appeared at the hearing on the appeal, in all fairness, before proceeding further, the tribunal shall issue notices to them to secure their presence.
If on conclusion of such further inquiry, as has been ordered above, the tribunal were to conclude that the contention of the insurance company
about the forgery is correct, it shall not only grant it recovery rights against the driver and owner of the offending bus but also consider the expediency
of initiating appropriate action under the criminal law.
The statutory amount shall be refunded to the appellant insurance company.
Both the appeals stand disposed of in above terms.