United India Insurance Co. Ltd. vs Purrai Kishore and Others

C.Y. Somayajulu, J.—Respondent No. 1 through his guardian, filed this claim petition seeking compensation of Rs. 80,000 from respondent Nos. 2 to 4 and appellant alleging that when he was proceeding to the school, car bearing No. AHW T-5677, being driven in a rash and negligent manner by its driver, dashed against and caused injuries and consequent permanent disability to him. The appellant who is impleaded as the insurer of the offending car filed a counter, inter alia, contending that the claimant has to establish that the offending car was insured with it by the date of accident. In support of his case, respondent No. 1 examined three witnesses as P.Ws. 1 to 3 and marked Exhs. A1 to A3 and X1. On its behalf, the appellant examined one witness as RW 1 and marked Exhs. B1 and B2. Tribunal holding that the evidence of RW 1 cannot be taken into consideration and so the appellant failed to establish that the offending vehicle was not insured with it by the date of accident, passed an award for Rs. 50,000 in favour of respondent No. 1 against respondent Nos. 2 to 4 and the appellant. Hence this appeal by the insurer.

The main contention of the learned Counsel for the appellant is that since there is no evidence on record to show that the appellant was the insurer of the vehicle involved in the accident the Tribunal was in error in passing an award against the appellant, on the erroneous assumption that the burden of proof is on the appellant to establish that it is not the insurer of the offending vehicle. There is no representation on behalf of the respondents.

It is well-known that burden to establish that the offending vehicle was insured with a particular insurance company is on the claimant or the owner of the offending vehicle. As per Section 151 of the Motor Vehicles Act, 1988, the owner has the duty to disclose the name of the insurer when called upon to do so. Particulars of the insurance of the offending vehicle are not mentioned in the claim petition. In column No. 17 of the claim petition, which relates to the name and address of the insurer, the name of the appellant is mentioned without any particulars of insurance. The evidence of RW 1 is that a notice under the original of Exh. B1 was issued to the owner to furnish the particulars of insurance and that the owner having received the notice, under Exh. B2 acknowledgement, failed to furnish the particulars. Curiously, Tribunal found fault with appellant for not examining the Branch Manager of Bhimavaram Branch and refused to accept the evidence of RW 1 on the ground that he is not the Branch Manager of Bhimavaram Branch. Tribunal failed to note that the burden is on respondent No. 1 (claimant) to establish that he made efforts to find out the particulars of insurance of the offending vehicle and that he should either furnish those particulars or call upon the owner to furnish the particulars of insurance of the offending vehicle. Merely because the claimant chooses to implead a particular Insurance Company as the insurer of the offending vehicle, it cannot be presumed that the offending vehicle was insured with that Insurance Company. Even if the appellant failed to adduce any evidence in a case like this no award could be passed against the appellant because the evidence adduced on behalf of the claimant does not establish that offending vehicle was insured with the appellant by the date of accident. So the Tribunal was in error in making the appellant liable for payment of compensation arrived at by it. Only after respondent No. 1 or the respondent No. 4 is able to establish that the vehicle bearing No. AHW T-5677 was insured with the appellant by the date of the accident, i.e., 27.6.1993 can the appellant be made liable for payment of the compensation awarded to the claimant.

Therefore, the appeal is allowed, the award passed by the Tribunal against the appellant stands suspended till respondent No. 1 or respondent No. 4 establishes that the vehicle bearing No. AHW T-5677 was insured with the appellant by 27.6.1993. Then only respondent No. 1 is entitled to recover the amount covered by the award from the appellant. Parties are directed to bear their own costs in this appeal.