New India Assurance Co. Ltd. vs Giridhari Mallick and Others

L. Mohapatra, J.—This appeal is directed against the judgment and award dated 27th August, 1993 passed by the Learned Second Motor Accident Claims Tribunal (Northern Division), Sambalpur in Misc. (A) Case No. 29 of 1989 (SN) directing the present appellant to pay compensation of Rs. 1,50,000/- to the claimants-respondents.

The claimants-respondents are the legal heirs of deceased Sanatan Lakra. The case of the claimants is that on 11.2.1989 at about 7.30 P.M. the deceased was coming from the sector side to Rourkela Town by a Rajdoot Motor Cycle bearing registration No. ORE 9432. Near Bisra Chhak the offending vehicle bearing registration No. OAO 1565 being driven rashly and negligently dashed against the deceased as a result of which the deceased sustained serious injuries on his head and body. The deceased was taken to R.G.H. (Hospital) whereafter he was shifted to I.G.H. (Hospital) but he died on the way. In the accident the motor cycle was also completely damaged.

The owner of the offending vehicle filed written statement stating that the offending vehicle was driven by an experienced driver having valid driving licence. On the date of accident, one motor cyclist came on the left side of the offending vehicle and dashed against it and the accident took place. It is further case of the owner of the offending vehicle that the vehicle was insured with the appellant under Cover Note No. 086873 dated 9.2.1989 and, therefore, compensation, if any, is to be indemnified by the present appellant.

The present appellant filed written statement denying the allegation of the owner of the vehicle that the offending vehicle had been insured with the appellant and consequently denied its liability to pay compensation. The specific stand taken by the appellant is that the Cover Note on which much reliance was placed by the owner of the offending vehicle had never issued from the office of the appellant and the said Cover Note is a forged one.

The Tribunal on pleadings of the parties framed three issues and found that the offending vehicle on the date of accident was being driven in rash and negligent manner resulting in accident and consequently casing death of the deceased. The Tribunal on the basis of the Cover Note also found that the offending vehicle was covered by the valid insurance policy on the date of the occurrence and considering the income of the deceased at the time of accident as well as his age directed payment of compensation of Rs. 1,50,000/-.

Shri Rao, the Learned Counsel appearing for the appellant mainly challenged the award on the ground that the vehicle had never been insured with the appellant and the Cover note on which much reliance was placed by the owner of the offending vehicle is forged one and in this connection he drew attention of the Court to the evidence adduced in course of hearing. The owner of the offending vehicle in spite of service of notice has not entered appearance and the claimants-respondents have entered appearance through their counsel. The Learned Counsel appearing for the claimants-respondents referring to the evidence submitted that the finding arrived at by the Tribunal with regard to liability of the Insurance Company to pay compensation is based on sound reasons and, therefore, there is no scope for this Court to interfere with the said finding.

In order to appreciate the ground taken by the Learned Counsel for the appellant with regard to Cover Note, it is necessary to refer to some documents as well as evidence. The appellant after appearance before the Tribunal filed written statement on 13th November, 1989. In the said written statement the appellant did not take the stand that the Cover Note on which much reliance was placed by the owner of the offending vehicle is a forged one and that the same had been lost by the Development Officer which had been utilized for the purpose of this case. In paragraph 5 of the written statement it is only stated that the appellant has tried its best to locate the policy on the basis of the Cover Note in respect of the vehicle in question but it has not been possible to locate the same. Only on the above basis, the appellant denied that the offending vehicle had been insured with it. The owner of the offending vehicle had filed his written statement on 27 of September 1989 and in the said written statement the owner of the vehicle had specifically given the Cover Note number. Though the appellant filed written statement after filing of the written statement by the owner indicating the number of the Cover Note, no such plea was taken in the written statement filed by the appellant that such Cover Note had not been issued and the same had been lost by the concerned Development Officer. However, subsequently an additional written statement was filed by the appellant taking the aforesaid plea only on 20th of February 1992. It is therefore clear from the above that in the first written statement filed by the appellant the plea of loss of blank cover note signed by the concerned Development Officer had not been taken in spite of the fact that the owner of the offending vehicle in the written statement had specifically averred that the vehicle was insured with the appellant and the Cover Note number was given.

The brother of the owner of the offending vehicle examined himself as a witness in the case. In his deposition he stated that his brother is the owner of the offending vehicle and by virtue of a power of attorney he was managing the affairs of the offending vehicle and was also paying the insurance premium, tax etc. in respect of the offending vehicle. He has also deposed that he had insured the vehicle in Rourkela Branch on 9.2.1998 and paid the premium on that very day and was issued with the Cover Note. In cross-examination by the present appellant he has stated that he had gone to the office of the appellant at about 1.30 p.m. and met one agent Loknath Nayak (O.P.W. 1). He has also stated in his cross-examination that the Cover Note was prepared in his presence and signature of the concerned Officer was taken. He has also stated in cross examination that before obtaining the Cover Note he had filled up the proposal form and had paid the premium to the said Loknath Nayak but did not obtain any money receipt. This witness also stated that the Insurance Policy was never issued. O.P.W. 1 is Loknath Nayak who is stated to have received the money from Tapan Kumar Mallick examined on behalf of the owner of the vehicle. However, this witness, Loknath Nayak in his deposition has denied to have met the said Tapan Kumar Mallick or received the premium for issuance of the Cover Note. O.P.W. 2 is the Development Officer under whose signature the Cover Note is stated to have been issued. In his deposition he has stated that he was always carrying signed blank Cover Note with him for use and had lost some signed blank cover note on 9.2.1989 while returning to his residence and one of such lost blank signed Cover Note has been utilized for the purpose of the case.

Sri Rao, the Learned Counsel appearing for the appellant submitted that the loss of blank signed Cover Notes had been notified in a local newspaper and the matter was also reported in to the office of the appellant by O.P.W. 2. According to Shri Rao, the agent Loknath Nayak having stated in his deposition that he did not receive any premium from the owner of the offending vehicle and considering the fact that one of the lost Cover Note has been produced before the Court itself proves that the Cover Note, Ext. A, produced by the owner of the offending vehicle is a forged one. True it is, there is no document to show that the premium had been paid before signing of the Cover Note or that a policy was issued on the basis of the Cover Note. But, the Court cannot also overlook certain aspects of the case which go against the appellant.

On perusal of the records, it is found that even though the owner of the offending vehicle had filed the written statement earlier than that of the appellant and it indicated the Cover Note number in the written statement, the plea taken in the additional written statement was never taken in the original written statement. Therefore, the ground taken in the additional written statement may be an after thought. This finding also gets support from the another document. Ext. D is a notice issued by the appellant to the owner of the offending vehicle asking him to submit policy number. The said notice is dated 12.9.1989. Even though the first written statement was filed nn 13th November, 1989, the aforesaid plea was not taken in the first written statement. Moreover, on perusal of Ext. A it appears that all entries including the signature of the Development Officer have been made in the same ink. Under the circumstance, it is difficult to accept the contention of the Learned Counsel for the appellant that the Cover Note had not been issued by the appellant. I am, therefore, of the view that the finding of the Tribunal in this regard saddling liability on the Insurance Company is justified. The Learned Counsel for the appellant also challenged the finding with regard to quantum of compensation, but after perusal of the evidence adduced on behalf of the claimants, specifically the wife of the deceased, who has been examined as P.W. 1, I am of the view, the quantum of compensation is just and proper.

I, therefore, do not find any merit in the appeal and accordingly the same is dismissed.