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Judgment
J. C. Doshi, J
This appeal is filed by the appellant-insurance company under Section 173 of the Motor Vehicles Act, 1988 (`MV Act’ for short), being aggrieved and dissatisfied with the judgment and award dated 31.07.2008 passed by the Motor Accident Claims Tribunal, Ahmedabad (Rural) in MACP No.491 of 1995, whereby the claim petition of the opponents-claimants were partly allowed and the appellant-insurance company was ordered to pay the amount of compensation of Rs.2,39,000/- with 8.5% p.a. interest from the date of petition till payment to the original claimants by holding all the opponents liable jointly and severally.
Brief facts of the case are as under :-
2.1. That on 19.02.1995 at about 4.30 pm, the accident took place on Ahmedabad Kathlal High way near garage of Shailehbhai. The deceased and injured were travelling in rickshaw No.GJ-2-U-3302 (for short "auto rickshaw") and coming towards there village Dharmatvan from Kubadthai and the driver fo the rickshaw was driving in moderate speed and when was passing near garage of Shaileshbhai, at that time, truck bearing No.GRT 563 (for short "truck") being driven by its driver came in full speed and in rash and negligent manner came on wrong side and dashed with rickshaw during which deceased Atamaram Solanki died. It is stated in the claim petition that deceased was aged 35 years at the time of accident and he was doing agricultural work and earning Rs.3,000/- per month. The claimants claim compensation of Rs.4,00,000/- from the opponents. Learned Tribunal after considering oral and documentary evidence, awarded compensation of Rs.2,39,00/-. Being aggrieved, the Insurance Company is before this Court.
Heard learned advocate Mr.Vibhuti Nanavati for the Insurance Company and learned advocate Mr.Limbachia for driver of the auto rickshaw.
Claimants initially were represented by learned advocate Mr.Paresh Darji, however, later on learned advocate Mr.Paresh Darji has withdrawn his vakalatnama and retired from representing original claimants. Pursuant to which, the Court has issued advocate notice. It is served to the claimants, but none remain present.
Learned advocate Mr.Nanavati for the Insurance Company argued that photocopy of the policy produced by the owner of the truck is fake policy. It is submitted that on verification, Insurance Company did not found any such policy issued in favour of the owner of the truck indemnifying risk of the vehicle on the date of accident. He would submit that Insurance Company has taken this defense since beginning. It is submitted that written statement is filed by the insurance company has raised this issue specifically in addition to other issues. He referred to internal page no.3 of written statement at Exh.44 to submit that in written statement, Insurance Company has set up clear defence that for previous year, policy was issued in favour of the truck indemnifying risk but later on it was not renewed. According to written statement, certificate number mentioned in the policy produced by the owner on being verified found certificate of another policy. It is submitted that in view of this fact, policy produced by owner is fake and in-genuine policy.
He would submit that Insurance company has led oral evidence of the officer and to produce on record policy at Exh.54 to 57 to prove police of the owner as fake, bogus and unauthentic. Taking this Court through oral evidence led by insurance company, he would submit that officer on oath has stated that copy of the policy which was supplied by owner claiming to be policy covering risk of the truck on the date of accident did not match with the record of the insurance company. He would submit that in cross examination, nothing contrary has been elucidated and yet learned Tribunal by holding insurance company liable to pay compensation on behalf of owner of vehicle has committed serious error in believing that insurance company failed to prove fraud took place and policy which is referred by the owner is fake and fabricated. He would submit that learned Tribunal fell in error in reaching to conclusion that copy of policy produced by the owner covers risk of the vehicle on the date of accident. He would submit that since policy produced by the owner is fake, there is no valid contract exist between the owner and insurer, which bestow vicarious liability upon insurance company to indemnify liability of owner. He would submit that learned Tribunal has erroneous reached to conclusion.
5.1. Upon above submissions, it is submitted to allow the first appeal. It is also submitted that two other claim petitions arising from same road accident has been partly allowed by the learned Tribunal. Aggrieved by the same, two first appeals are preferred by the insurance company against the said judgment and award.
However, they are disposed of in view of smallness of awarded amount without examining merits of the case. Decision arrived on in other two appeal viz. First Appeal No.640 of 2009 and First Appeal No.641 of 2009 would not operate as res-judicata in the present matter.
None remained present for claimants to contest the above arguments.
To be noted that since other appeals being First Appeal No.640 of 2009 and First Appeal No.641 of 2009 are disposed of on the ground of smallness of awarded amount involved without examining merits of the case, needless to state that decision on them would not operate as res-judicata to the present matter.
Noticeably, in claim petition insurance company raised the contention at first instance and written statement is also filed stating that policy produced by the owner is fake and fabricated and as such under such circumstances, insurance company is not liable to pay compensation. The owner, who has produced copy of the policy and believed to be true by the learned Tribunal did not enter into witness box to prove said policy and yet learned Tribunal believed policy to be true and genuine one. Error and defect in the impugned order is clear and crystal that since insurance company has not accepted certificate of the policy as true and genuine, it was duty on the part of the owner to prove same to be genuine and not fabricated one. Insurance company produced four different policies from Exh.54 to 57 and also examined Maheshbhai Makwana at Exh.53 to establish that policy which is produced by the owner alleged to covering risk of the truck on the date of accident is fake and fabricated and certificate number stated therein is of some other policy. Aptly could be seen that interpolation has been made in the certificate to avoid liability. This facts is established on record, more particularly, in view of documentary and oral evidence lead by insurance company.
Learned Tribunal dealt with the issue in only one paragraph. Paragraph no.23 of the judgment reads as under :-
"23. Looking to the arguments advanced by parties advocates, in this case it is clear from the documentary evidence produced by the parties as well as deposition of the Divisional Manager at Exh.53 that the opponent no.2 Insurance Company fails to prove the fraud committed by the owner of the truck No.GRT 5653. Therefore, the opponent No.2 Insurance Company is also liable to pay compensation to the petitioner."
I could not find any substance in the reasoning arrived by the learned Tribunal. No discussion is made by the learned Tribunal on the evidence led by the insurance company to prove that policy produced by owner is fake and fabricated. Learned Tribunal has not discussed the issue of owner not entered into witness box to prove certificate of policy he has produced. It would be more significant on the aspect as insurance company in written statement doubts genuineness of policy.
In view of above, according to this Court, learned Tribunal has committed error in earmarking responsibility of insurance company to pay compensation for and on behalf of owner. As there was no valid contract exist between insurer and owner of the vehicle on the day of road accident, insurance company cannot be held liable for paying compensation on the principle of vicarious liability for and on behalf of owner.
For the foregoing reasons, the first appeal is allowed. Judgment and award passed in MACP No.491 of 1995 is modified to the extent that Insurance Company is exonerated from liability to pay compensation. Claimant shall be entitled to recover compensation from rest of opponents jointly and severally. Amount if any deposited by the Insurance Company shall be refunded to it with accrued interest forthwith. If any amount is disbursed to the claimants, pursuant to impugned award, it shall not be recovered. Record and proceedings, be send back.