New India Assurance Co. Ltd. vs Sri Afroz Khan

Sri. D.V. Shylendra Kumar, J.—Appeal u/s 173 of the Motor Vehicles Act, 1988 (for short, the Act), directed against the Judgment and

award dated 20.11.2002 in MVC No.227/2000 passed by Addl. MACT & Addl. CJ (SR), Bidar.

This appeal is by the second respondent in the claim petition, the Insurance Company, and for questioning the order of the Tribunal in so far as

the Award/Order to be satisfied jointly by the owner and by the Insurance Company awarding a global compensation of Rs.3,41,500/- with

interest at 9% PA from the date of petition till the date of realisation, on the ground that the award in so far as the Insurance Company is

concerned, is not tenable when the Insurance Company in fact had never covered the vehicle in question by a policy issued by them and

particularly when the claimant sought to make out a case against the insurance company by producing Ex.P-4 cover note of a policy said to have

been issued by the Insurance Company for covering the risks of the owner in respect of the vehicle bearing Registration No. AP-9/U-6159, which,

according to the appellant, is a forged/concocted xerox copy.

This appeal has been heard for quite some time and we had noticed that good number of anomalies were obvious on the face of the record and

such observations have been reflected in our orders dated 7.12.2009 and 10.12.2009, which read as under:

ORDER DATED 7-12-2009

Appeal is listed for orders regarding sufficiency of service of notice on Respondent No.2-owner of the vehicle.

Learned Counsel for the appellant has filed a memo along with the copy of paper publication taken out in ""F �AqAA "", Telugu daily

newspaper having circulation in Hyderabad, the place of residence of the second respondent, and has sought for acceptance of service on

Respondent No. 2 as sufficient.

The paper publication had infact been taken out on 9.11.2009, indicating the hearing date as 27.11.2009 and when the matter had been listed

before this Court on 27.11.2009, none appeared nor any vakalath filed on behalf of the second respondent.

However, instead of pointing out this development, Sri Sudarshan. M, learned Counsel appearing for the appellant, on that day, requested the

matter to be called on 2.12.2009, Again on 2.122009, further a week''s time was sought for and it is only thereafter the memo is filed in the

registry on 3.12.2009 indicating the developments relating to paper publication etc

It is not known as to whether the second respondent had infact appeared before this Court on 27.11.2009, when the matter had been listed

before this Court nor his name called out and his absence recorded. In the absence of this procedure, we cannot hold the service as sufficient

We notice that the Insurance Company is keen on prosecuting the appeal for the reason that there is possible collusion between the two

respondents i e., first respondent-claimant and the second respondent-owner, and if so, the Judgment and Award of the Tribunal, awarding a

compensation of a sum of Rs.3,41,500/-towards the injuries suffered by the first respondent-claimant along with interest at 9% p.a. is obviously

vitiated and if it is obtained by practicing fraud and if such case of the appellant is made good the appeal inevitably has to be allowed

Though Counsel makes submission as noticed above, the pleadings before the Tribunal particularly the objection statement on behalf of the

Insurance Company does not make out such a case nor the grounds of appeal raised in this appeal make any suggestion.

There is not even an effort on the part of the Insurance Company to place any additional material in this appeal in a proper form to raise such

grounds and in the absence of all such things, the allegations of fraud etc., may not be sustainable at all Fraud is an aspect, which should be

necessarily pleaded and proved and it is not a matter of inference by the Court. The effort in this appeal on the part of Insurance Company only

appears to be cover the loopholes and to elicit the Certificate at the hands of this Court, so that the possibility of fraud from collusion are

conveniently covered and the payment made by the Insurance Company towards fraudulent claim is sustained.

A look at the cause title in the appeal, which indicates the appellant as:

New India Assurance Co. Ltd.,

Secundarabad Branch (AP)

Through its Regional Office,

''2-B, Unity Building Annex,

Kalinga Rao Road,

Bangalore-560 027.

Represented by its Deputy Manager

Sri K. Shanbhogue.

makes us wonder as to whether the appeal is by the proper person at all and as to how the registry of this Court could have overlooked this as the

Insurance Company before the Tribunal, which figured as the second respondent was described as.-

The New India Assurance Co. Ltd,

R.P. Road, Secunderabad (AP)

Through Divisional Manager Division Office Gulbarga

and we have our own reservation about the maintainability of the appeal itself.

In this state of affairs, we are not able to hold the service as sufficient on the strength of the paper publication now placed before the Court.

Be that as it may, as the matter is very serious and as the first respondent-claimant is represented by Counsel, we direct Smt Umadevi K

Babshetty, Learned Counsel appearing for the first respondent to keep available the claimant before this Court on 11.12.2009. It is also open to

the first respondent to appraise the development to the second respondent and to secure his presence, if possible on 11.12.2009, so that further

procedural delay of notice etc., may be avoided

We direct the responsible officer of the insurance Company also to be present before this Court on 11 12.2009.

Furnish a copy of this order to Sri Sudarshan M, learned Counsel for the appellant and to Smt Umadevi K Babshetty, learned Counsel for the

first respondent free of cost.

List this matter for further orders on 11.12.2009.

ORDER DATED 10-12-2009

While we are trying to unravel the mystery as to whether the so called accident that occurred on 29.8.2000 had resulted in serious injuries to the

respondent/claimant resulting in amputation of his right lower limb below the knee and also as to whether the appellant/Insurance Company, had in

fact issued a policy covering the risk of the owner which had caused the accident namely the passenger bus bearing Regn. No. AP-9/U-6259, a

perusal of records particularly a xerox copy of the Insurance Policy said to be issued by the Insurance Company in respect of the bus does not

inspire our confidence to accept it as a document worthy of recognition particularly as it is only a xerox copy and appears to be notarised not

once, but thrice at different places and the document does not bear the endorsement of Jurisdictional Police, to whom is traced the origin of the

document.

Though Mr. Babshetty, learned counsel appearing for respondent/claimant submits that it is a document said to have been furnished by the

police to the claimant, in the state of affairs narrated supra, the actual events that are alleged to have taken place appear to us to be extremely hazy

and blurred Neither the responsible officers of the Insurance Company nor the respondent/claimant is present before the Court.

Mr. Sudarshan M. learned counsel for the appellant submits that the Divisional Manager Mr. Ismail khan is transferred. Mr. PR. Kulkarni

Administrative Officer of the Divisional Office, also states before the Court that the Divisional Manager Mr.Ismail khan is now under order of

transfer to Bangalore, the Deputy General Manager Mr. AG. Savanur has gone for traning to Bangalore and even the AGM one Mr.M.M.

Tuppad is on sick leave today and therefore, he is the only available responsible officer of his office and has come to this Court.

4, Mr. P.R. Kulkarni, Administrative Officer is also asked to ascertain from his end and from the relevant office of the insurance Company at R.P.

Road, Secunderabad as to whether a policy of this nature in the name of Mr, S. M. Haneef S/o. Gul Syed, owner of bus bearing Regn. No. AP-

9/U-6259 had ever been issued at all etc.

Mr Babshetty is requested to ensure the presence of claimant/respondent before this court, and as requested by him, list this matter on

16.12.2009, Mr, P.R. Kulkarni to appear before the court on 16.12.2009 with the relevant information along with an higher responsible officer of

the Insurance Company.

When the matter is taken up for further hearing today, appearing on behalf of the Insurance Company -Sri M. Sudarshan, has placed a memo

along with photo copies of some correspondence including the first page of a policy said to have been issued in respect of the vehicle bearing

No.AP-9/U-6260 (which is strangely handwritten, whereas the rest of the first page of the so called policy is typed] and the office copy of the

cover note with Sl.No.7518 said to be corresponding to vehicle No.AP-9/U-6260 [which is strangely written twice one above the other]

evidencing payment of a sum of Rs.7,759/- as premium for the policy and other correspondence between the Regional Office at Secundrabad and

at Gulbarga etc., to substantiate the version of the Insurance Company that the Insurance Company had never issued a policy as is sought to be

made out in terms of Ex.P-4 covering the risk of the second respondent owner in this appeal for reimbursing the risks in respect of the vehicle

No.AP-9/U-6259 as claimed by the claimant etc.,

Submission of Mr. Sudarshan is that a policy had been issued in respect of the vehicle No.AP-9/U-6260, and that the cover note issued for this

policy has been forged in respect of the number of the vehicle, make it to appear as though it is in respect of vehicle No.6259 and the date of the

coverage is also manipulated to indicate that it is covered upto 29.5.2001 as though it was for the period 29.5.2000 to 28.5.2001, whereas the

policy and the cover note was in respect of other vehicle and for the period from 9.5.1999 to 8.5.2000. Significance of these dates are that the

accident took place on 29.8.2000 on which date according to the Insurance Company, the vehicle bearing Reg. No.AP-9/U-6259 was not

covered by any Insurance Policy undertaken by the Insurance Company covering the risks of the owner of this vehicle.

To assist the learned counsel for the Insurance Company, one Mr. Tuppad, Assistant Manager is present and tried to explain the xerox copies

placed along with the memo with reference to office file, which is brought to the Court today along with the Officer.

In the first instance, a memo of this nature produced along with some xerox copies is no evidence in the eye of law nor is it placed before the

court in a proper form and as per the procedure.

More importantly, it is a settled legal proposition that any evidence to be placed before the court can be only to support a plea taken by the

party and the plea taken before the Tribunal on behalf of the Insurance Company being neither to the effect that the policy was a forged one nor

the plea that the Insurance Company had not issued a policy covering the risks of the owner, in the nature of a statute policy, but being a vague and

general plea, as found in paras 3 & 5 of the objection statement. The memo with its annexures, produced before the court today, cannot in any

way advance the case of the appellant insurance company. Para 3 and 5 of the Memorandum is extracted hereunder:

The learned member of the Tribunal that the appellant did not have any reasonable or sufficient opportunity to verify the genuineness of Ex.P-4

when it was marked in the evidence of the Just respondent. Since the entire proceedings ended within one month after the commencement of the

evidence the respondent could not place material before the Tribunal to establish the fraud. Hence, the appellant craves leave of this Hon''ble

Court to produce the certified true copy of the cover note No.7518 and the policy issued in favour of the second respondent in respect of Bus No.

AP.9/U-6260 to demonstrate that Exh.P-4 is a tampered document

4...

Since the appellant is made liable to satisfy the award on the basis of forged and manipulated cover note, the award under appeal requires to be

set aside.

Grounds 3 and 4 in the memorandum of appeal extracted above, are neither made good nor can be permitted to be raised for the first time in this

appeal, particularly as the scope of this appeal is confined to the liability on the part of the Insurance Company to reimburse the amount to the

owner and in-turn the claimant, as awarded by the Tribunal against the owner and in turn in favour of the claimant. The examination is confined to

the question as to whether the Insurance Company can succeed on this aspect in this appeal.

It is only because we had noticed that neither before the Tribunal nor before this Court any worthwhile, earnest, diligent effort had been made to

make good the stand now taken by the insurance company that the claimant figuring as the first respondent and the owner figuring as the 2nd

respondent in this appeal either had colluded or had played fraud on the insurance company that we have embarked on a detailed examination of

not only the record, but also called upon the learned counsel of the Insurance Company to keep available before the court some responsible officer

of the Insurance Company.

Response on behalf of the appellant insurance company, we are sorry to note, is rather lukewarm and is not any improvement over the careless

negligent manner in which the insurance Company had defended the matter before the Tribunal.

Even now there is absolutely no sincere effort on the part of the Insurance Company to prove their stand that Ex.P-4 was a forged copy of the

original document, as the insurance Company has not put in, any effort nor made any attempt to place before the court either the office copy of

Ex.P-4 as it existed as per their claim nor any other supporting material placed before the court to sustain this stand.

In the absence of a plea and when no effort is made to amend the plea and what is now being tried, being a halfhearted attempt on the part of

the Insurance Company, we are left with the feeling that the Insurance Company is making a farce of pursuing this appeal. When the learned

counsel for the Insurance Company has made himself bold to submit that the respondents have played fraud and committed forgery and therefore,

the award in so far as fastening the liability is concerned, should be set aside, it: was the duty of the appellant to have made good the stand and

version.

The appellant having miserably tailed to do so, we are not at all satisfied that in this appeal, there is any need for us to disturb the

judgment/award of the Tribunal, fastening joint liability on the insurance Company as well as the owner of the vehicle involved in the accident,

having regard to Section 147 of the Motor Vehicles Act, 1988.

We are also left with the feeling that the officials of the Insurance Company have tailed all along in defending the case of the Insurance

Company, if their version that fraud has been played on the Insurance Company, has to be accepted. Fraud is a serious matter frowned upon

everywhere and vitiates all proceedings. An allegation of fraud should be pleaded in precise terms with full particulars and made good and proved

to the hilt, as per the pleadings. Such is not the effort at all on the part of the Insurance Company, but the formality of filing an appeal is made may

be to make a show that the Insurance Company had made an effort to tile an appeal and to get over the liability.

The Assistant Manager of the Insurance Company who is present before the court states that the Insurance Company is not making good

profits and it is hardly making profits as they have to satisfy good number of claims. If that is to be believed, it is only because of the careless and

negligent manner in which the officials of the Insurance Company are functioning and defending the cases, where they figure as respondents, such

position is reached.

To compound this, we notice that the counsel appearing for the Insurance Company have neither conducted the case in a professional manner

and no wonder that the Insurance Company would end up with meagre profits or no profits and even losses. Insurance Companies are now

nationalized and are state assets. A drain on the Insurance Company without justification is nothing but a drain on the public exchequer and public

funds.

A statutory policy issued in terms of Section 147 of the Motor Vehicles Act, no doubt may be a burden some liability caused by the statute on

the Insurance Company, but even here we find that the Insurance Company tailed in effectively defending the case when they could have possibly

demonstrated that the policy was out side the scope of the statute liability.

The second respondent-owner had been permitted to be served by taking out paper publication in terms of the order dated 26-10-2009 and

when the matter had been listed before this court on 27-11-2009 for further orders about the service of notice on second respondent by way of

paper publication, instead of submitting to the court that the paper publication has been duly carried out in the newspaper as ordered, Sri

Sudarshan, learned counsel for the appellant-insurance company merely sought for time, even when the office note indicated that the appellant-

insurance company has not produced a copy of the paper publication, which could have revealed that the second respondent is to be taken as

served by way of paper publication.

It is in those circumstances, when the matter was again listed before this court on 2-12-2009, while no order was passed regarding service of

notice on second respondent, it was again adjourned by two weeks for compliance, and a copy of the paper publication was filed along with a

memo dated 3-12-2009 and in this state of affairs, we found it rather difficult to hold that the second respondent can be deemed to have been

served by way of paper publication.

Though the appellant has, in fact, taken out paper publication on 9-11-2009 and the publication did indicate that the date of hearing before this

court to be on 27-11-2009, this aspect of the matter having not been brought to the notice of this court either on 27-11-2009 or on 2-12-2009,

when the matter had come up for orders before this court, the appearance or presence of second respondent before this court on that date could

not be ascertained for want of information on the part of the appellant-insurance company and its learned counsel though paper publication had

been duly carried out even as on 9-11-2009. In this state of affairs, we found it rather difficult to render a finding against the second respondent,

even on the question of law to modify or in any way reverse the findings of the tribunal making the appellant-insurance company as jointly

responsible in respect of the liability of the second respondent for compensating the claimant for the damages in respect of the injuries suffered in

the accident involving the vehicle owned by the second respondent and on the premise that it had been insured with the appellant-insurance

company. For this reason also, the appellant-insurance company cannot seek to modify the judgment and award passed by the tribunal to absolve

the appellant-insurance company from any liability on its part, jointly with the owner of the vehicle.

In such circumstance, we find it rather difficult to absolve the appellant-insurance company from joint liability which has been fastened by the

order of the tribunal, apart from the ground of want of proper plea on the part of the appellant-insurance company to relieve it from the statutory

obligations in terms of Section 147 of the Act

However, as a vague murmur is being made by Mr. Sudarshan, appearing on behalf of the appellant -Insurance Company and to test the

bonafides of the Insurance Company, we reserve liberty to the Insurance Company particularly in the absence of the second respondent owner

having remained absent and having not responded to the notice issued by this Court in this appeal, to initiate action against the owner alone for

claiming reimbursement, of the amount that they have to pay in terms of the judgment and award of the Tribunal and to institute a civil suit for

claiming reimbursement only on the ground that the owner had played fraud on the Insurance Company, in which event, the Insurance Company

can definitely claim the reimbursement of the amount now being paid to the claimant in terms of the judgment and award of the Tribunal.

For such purpose, the date of judgment in this appeal to be taken as the starting point for the purpose of limitation.

But for this observation, this appeal is dismissed levying exemplary cost of Rs. 10,000/- on the Insurance Company. Cost to be paid within

four weeks by depositing the same before the Tribunal and the first respondent claimant is entitled to draw the amount.

We also make it clear that in the event of the Insurance Company not succeeding before the Civil Court in the suit against the owner on the

ground of fraud etc., it is open to the Insurance Company to recover the amount personally from the officers, who are responsible for this position

and loss to the insurance company due to their lack of diligence in defending the matter in a proper manner, both before the Tribunal and before

this Court

Appeal is dismissed. The insurance Company to deposit the balance amount in terms of the award of the Tribunal within six weeks from today

and with interest upto the date of deposit. Registry is directed to return the original records to the Tribunal.