United India Insurance Co. Ltd. vs Ramachandran and Nagendran

P.P.S. Janarthana Raja, J.—The appeal is preferred by the insurance company against the award dated 23.06.2003 made in M.C.O.P No.

466 of 1993 by the Motor Accidents Claims Tribunal, Principal District Judge, Tindivanam.

Background facts in a nutshell are as follows:

One injured Ramachandran met with an motor traffic accident on 02.08.1992 at about 06.00 P.M. The said injured was walking on the mud

portion of the road. While he was walking near K.V.N Egg shop, Tindivanam, a Bajaj M.80 bearing registration No. T.S.I 6808 came in a rash

and negligent manner and hit the injured. Due to the impact, the claimant fell down and sustained greivous injuries and fracture and also multiple

injuries all over the body. He claimed compensation of Rs. 50,000/-. The said Bajaj M.80 was insured with the appellant insurance company who

resisted the claim. On pleadings, the Tribunal framed the following issues:

Whether the accident had occurred due to the rash and negligent riding of the rider of the Bajaj M.80 or not?

What is the compesation the claimant is entitled to? After considering the oral and documentary evidence, the Tribunal held that the accident had

occurred only due to the rash and negligent riding of the rider of the Bajaj M.80 and awarded a consolidated sum of Rs. 25,000/- with interest @

9% per annum from the date of claim. Aggrieved by that award, the appellant insurance company has filed the present appeal.

The learned Counsel appearing for the appellant insurance company submitted that they are not liable to pay compensation on the ground that

the vehicle was not at all insured. Therefore, only the owner of the vehicle alone is liable to pay compensation. Further, the Tribunal is wrong in

holding that they are liable to pay compensation and further submitted that the award passed by the Tribunal is excessive, exorbitant and also

without any basis and justification. Therefore, the award passed by the Tribunal is not in accordance with law and the same should be set aside.

The Learned Counsel appearing for the claimant submitted that the Tribunal has considered all the facts and circumstances of the case and

rightly held that the insurance company is liable to pay compensation and awarded a just, fair and reasonable compensation and it is based on valid

materials and evidence. It is a question of fact and it is not a perverse order. Therefore, the award passed by the Tribunal is in accordance with law

and the same should be confirmed.

Heard the counsel. On the side of the claimant, P.Ws.1 and 2 were examined and documents Exs.Pl to P6 were marked. On the side of the

appellant insurance company, R.W.I one Anbazhagan, who is the officer of the insurance company was examined and Ex.R1 to Ex.R4 were

marked. P.W.1 is the claimant. P.W.2 is Dr. Pugazhendhi. Ex.PI dated 02.06.1991 is the copy of the First Information Report. Ex.P2 dated

02.08.1991 is the copy of the accident register, Ex.P3 dated 14.08.1992 is the motor vehicles inspector''s report, Ex.P4 dated 29.11.1991 is the

judgment copy, Ex.P5 is the disability certificate, Ex.P6 is the X-Ray series 2, were marked. Ex.R1 dated 18.07.1994 is the surveyor''s report,

Ex.R2 dated 05.12.2002 is the copy of the instructions given by the insurance company, Ex.R3 is the returned postal cover, Ex.R4 dated

17.10.2002 is the letter written by the insurance company to the Advocate were marked. After considering the above oral and documentary

evidence, the Tribunal has given a categorical finding that the accident had occurred only due to the rash and negligent riding of the rider of the

Bajaj M.80. It is a question of fact. The finding is based on valid materials and evidence and therefore, the same is confirmed.

The learned Counsel appearing for the appellant insurance company vehemently contended that in the evidence of R.W.I, it is stated that the

vehicle was not at all insured and the counter affidavit has also filed to that effect. Without appreciating the evidence of R.W.I, the Tribunal held

that there is no proper evidence filed by the appellant insurance company and therefore came to the conclusion that the vehicle was insured with

the appellant insurance company. But actually, in the present case there is no insurance policy was produced to prove that the vehicle was insured.

Once the vehicle was not insured, the burden is shifted on the owner of the vehicle to prove that the vehicle was insured. In support of his

contention, the learned Counsel appearing for the appellant insurance company relied on an unreported judgment made in CM.A. No. 1389 of

1993 dated 28.02.1994, wherein, this Court has considered a similar issue and in paragraph No. 2 held as follows:

After hearing counsel on both sides, we find that the case of the appellant-Insurance company is well founded. No insurance policy has been

produced in this case. There is absolutely no document on record to show that the vehicle in question was insured with the appellant. When a

specific plea is raised by the Insurance company that the vehicle was not insured, it is the duty of the claimants to secure evidence to prove the

insurance of the vehicle. The claimants should have called upon atleast the owner of the vehicle to produce the policy. No document is produced to

prove the factum of insurance. In the circumstances, the award cannot be passed as against the appellant herein. In so far as the appellant is

concerned, the award is set aside. However, it is made clear that the award passed as against the owner of the vehicle will stand undisturbed.

After considering the principles enunciated in the above judgment, it is made clear that it is obligatory on the part of the owner of the vehicle to

show that the vehicle was insured and also ought to have produced the insurance policy, if it is really insured. In the case on hand, there is no

evidence produced before this Court to show that the vehicle was insured and the Tribunal has also not considered that aspect.

Following the principles enunciated in the unreported judgment, this Court is of the view the finding of the Tribunal that the insurance company is

liable to pay compensation is liable to be set aside and accordingly set aside. It is made clear that only the owner of the vehicle alone is liable to

pay compensation. The Learned Counsel for the appellant stated that the entire award amount with accrued interest has already been deposited by

the Court order dated 01.11.2004. In view of setting aside of the finding of the Tribunal, liberty is given to the appellant insurance company to

withdraw award amount, if the same is not withdrawn by the claimant. If the claimant is not withdrawn, liberty is also given to the claimant to initiate

recovery proceedings against the owner. The Learned Counsel for the claimant stated that the entire award amount with interest has already been

withdrawn but, there is no evidence available on record to prove the same. Under these circumstances, if the award amount is withdrawn, the

appellant is at liberty to recover the same, by initiating execution proceedings in the same proceeding against the owner of the vehicle in

accordance with law. In the result, the appeal is allowed. No costs.