IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.258 of 2002
The New India Assurance Company Limited having its
Registered and Head Office at 87, Mahatma Gandhi Road,
Fort, Bombay 400023 and amongst others a Divisional Office
at Muzaffarpur and a Branch Office at Motihari, represented
through P. Serafin, the Assistant Manager (Legal) at Regional
Office, B.S.F.C. Building, VI Floor, Fraser Road, Patna 1, a
duly constituted Attorney of the Company.
....Opposite Parties No.3 to 5/Appellant.
Versus
1. Bangali Bhagat, S/O Late Govind Bhagat,
resident of Village-Braharpur, P.O.-Gayghat, P.S. Harsidhi,
Dist.- East Champaran.
....Claimant-Applicant-Respondent.
2. Smt. Kanta Devi, W/O Mahendra Singh
resident of Village-Motiaria, P.O.- Makhua, P.S. Harsidhi,
Dist.- East Champaran----Owner of the offending Vehicle
Bus BHE 3417.
3. Rahmat Mian, S/O Pir Mohammad Mian
Resident of Village Ghewadhar, P.S. Harsidhi, Dist.-East
Champaran-----Driver of the offending Vehicle Bus BHE 3417.
...Opposite Party No. 1 & 2/Respondents.
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6. 28 .09. 2010. Heard the parties.
This Misc. Appeal is directed against the order
dated 20.04.2002, passed by the 2nd Additional
Sessions Judge, East Champaran, Motihari, in Claim
Case No. 15/2001/18/2001 has ordered the National
Insurance Company to pay interim compensation to the
tune of Rs. 50,000/- to the claimant.
2. However, the appellant is New Insurance
Company.
3. Learned counsel for the appellant however,
contended that the claim application filed by the
claimant was hopelessly barred by law of limitation as
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the occurrence took place in the year 1996 whereas the
claim petition has filed in the year 2001. It has further
been contended that cover notes of policy filed in the
lower court was illegible and Insurance Company could
not verify as was in search of the concerned policy to
verify, but the Tribunal refused to grant sufficient time
and without enquiry passed the impugned order under
Section 140 for interim compensation. The appellant
has relied upon decision reported in 1994 (1) P.L.J.R.
79 that Tribunal was required to conduct enquiry before
the order passed, so the order is bad. It has further
been contended that the driver of the alleged vehicle did
not hold any valid driving licence and the driver neither
appeared nor filed driving licence and the driving
licence is also forged and fabricated one.
4. Learned counsel for the respondent
however, contended that application for claim was filed
in the year 2001 and the Insurance Company was
noticed. The Insurance Company appeared in the case
in the year 2001 itself and took several adjournments
and the Insurance Company appeared on 12. 10. 2001
and filed their power and took several adjournments
and finally order for ad-interim compensation was
passed on 20. 04. 2002, given several opportunities to
the Insurance Company, but even on several
3
adjournments, the Insurance Company did not file
confirmation report and in absence of specific denial or
contrary report in respect of policy described in the
petition it was held that offending vehicle was insured
and order to pay interim compensation
5. Hence on the rival contention of the
parties two points arises whether the claim is barred by
limitation and the second point is whether in absence of
specific finding that the vehicle was insured, the
Insurance Company is liable to pay the interim
compensation.
6. So far the first question for limitation is
concerned, no such point has been taken before the
Tribunal. However, the occurrence took place in the
year 1996 and the claim petition was filed in the year
2001. Section 166 (3) of Motor Vehicle Act provided the
limitation of six months for filing the claim case within
six months and the Tribunal was given to condone the
delay for a further period of six months. However,
Section 166 (3) of Motor Vehicle Act was deleted by the
Parliament and in the decision reported in 1996 (4)
S.C.C. page 652 Dhan Lal Vrs. D.P. Vijay Viyavargiya
and others held that effect of deletion of Sub clause 3 of
Section 166 the limitation is not applicable in claim
case and the effect of deleting of Section 166 (3)
4
extended to pending claim case where the plea of
limitation has been raised and to be applicable with
retrospective effect and held that claim petition can not
be thrown out on the ground that claim petition was
barred by time. Further decision reported in 2003 (7)
SCC page 713, New India Insurance Co. Ltd. Vrs. C.
Padma & others reiterated and relied 1996 SCC cases
(supra). The fact of the case reported in 2003(7) SCC is
that accident took place on 18. 02. 1989, the claim
petition was filed on 02.11.1995 and in the facts and
circumstances of the case it was held that case is not
barred by limitation when Section 166 (3) of Motor
Vehicle Act having been deleted. Limitation Act not
applicable in claim cases as the limitation clause having
been deleted, the Tribunal was bound to entertain
without taking note of the date on which accident took
place and hence there is no merit that claim case is
barred by limitation.
7. However, in the facts and circumstances of
the case, the Bus admittedly involved in accident
mentioned in the Fardbeyan as well as in the F.I.R. The
vehicle in question by which the accident took place is
BHE 3417 and the death of deceased by the said bus.
The claim petition filed. The Insurance Company
appeared on 12th October, 2001 and the impugned
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order passed in April, 2002 and several opportunity was
given to the Insurance Company but neither produced
the insurance policy nor filed confirmation report of
specific denial. However, order has been passed for
interim compensation on 02.04.2002 under Section 140
Motor Vehicle Act and the case is still at the stage of
enquiry as the petition under Section 166 Motor Vehicle
Act is still pending.
8. The owner of the bus did not appear
neither Insurance Company nor the owner provided any
document as well as Insurance Company also did not
give reply for about six months even after appearance of
the learned counsel for the Insurance Company and
case adjourned on several dates and the agony of
claimant can well be considered. The claimant has
relied upon the observation in para 10 of decision
reported in 1988 (1) S.C.C page 626,
“Before parting with the case, we
consider it necessary to refer to the attitude
often adopted by the Insurance Company, as
was adopted even in this case, of not filing a
copy of the policy before the Tribunal and
even before the High Court in appeal. In this
connection what is of significance is that the
claimants for compensation under the Act
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are invariably not possessed of either the
policy or a copy thereof. This Court has
consistently emphasised that it is the duty of
the party which is in possession of a
document which would be helpful in doing
justice in the cause to produce the said
document and such party should not be
permitted to take shelter behind the abstract
doctrine of burden of proof. This duty is
greater in the case of instrumentalities of the
State such as the appellant who are under an
obligation to act fairly. In many cases even
the owner of the vehicle for reasons known to
him does not choose to produce the policy or
a copy thereof. We accordingly wish to
emphasise that in all such cases where the
Insurance Company concerned wishes to
take a defence in a claim petition that its
liability is not in excess of the statutory
liability it should file a copy of the insurance
policy along with its defence. Even in the
instant case had it been done so at the
appropriate stage necessity of approaching
this Court in civil appeal would in all
probability have been avoided. Filing a copy
7
of the policy, therefore, not only cuts short
avoidable litigation but also helps the court
in doing justice between the parties. The
obligation on the part of the State or its
instrumentalities to act fairly can never be
over-emphasied. ”
9. Hence sufficient opportunity was given to
the insurer to enquire and give reply whether the said
vehicle is insured. However, even after appearance of
the learned counsel on behalf of the Insurance
Company no reply was filed and the Tribunal became
handicapped as neither the Insurance Company nor
owner responded before the Tribunal to give
information about the fact whether the vehicle is
insured and hence impugned order was passed.
However, in the appeal, Insurance Company has taken
a plea in the ground of appeal in para 10 that the
alleged accident took place on 16. 06. 1996, but
admitted that the vehicle was insured with the
appellant for the period from 14. 11. 1989 to 13. 11.
1990 and as such date of accident is not covered under
any policy issued by the appellant. However, no such
averment ever made before the Tribunal and hence it a
matter of enquiry by the Tribunal as only interim order
has been passed under the facts and circumstance
8
stated above and enquiry is still open. However, it is
not a case that there was no insurance at all rather
Insurance Company in para 10 of his ground of appeal
has admitted that the vehicle was insured with the
appellant for the period 14. 11. 1989 to 13. 11.1990,
and it is a matter of enquiry whether the said policy
continued. However the Insurance Company in his
reply has taken plea in para 5 of the ground of appeal
that the claimant filed a Xerox copy of cover note that
the alleged offending vehicle insured with the appellant
company covering risk period from 14. 11. 1995 to 13.
11. 1996 and the alleged accident took place on 16. 06.
1996 and the correctness and genuineness of which
was doubted by the Company and further in para 11
has taken plea as the appellant is entitled to recover
amount of interim award from the claimant and hence,
since sufficient opportunity was given to the appellant
before passing the order, but the appellant did not give
any material during enquiry before the Tribunal at the
time of passing of the interim compensation but raised
point in the appeal which has not been raised before
the Tribunal or the material not placed before the
Tribunal when the case is still open and pending there.
10. Learned counsel for the appellant has
relied decision reported in 1994 (2) P.L.J.R. page 820
9
that the order ought not have been passed without
proper enquiry. However, under the facts and
circumstance of the case reported in 1994 (2) that the
accident took place with a Bus bearing Registration No.
BRD 7879 and the owner of the Bus appeared on notice
and denied the involvement of his Bus in the accident,
but the Claim Tribunal rejected the objection on the
basis of witnesses recorded in course of investigation of
the police case where witnesses have stated that the
deceased died out of the accident with Bus bearing
Registration No. BHD 7879, whereas the petitioner was
owner of the Bus bearing Registration No. BRD 7879
and the Claim Tribunal passed order for payment of
interim compensation on the basis of statement of the
witnesses recorded in course of investigation of police
case without holding enquiry as to which of the Bus in
fact was involved in the accident and under the facts
and circumstance of the case the impugned order was
set aside on the ground that no inquiry conducted by
the Tribunal to ascertain the bus involved.
11. However, facts and circumstance of the
case reported in 1994 (2) P.L.J.R. is quite different from
the facts and circumstance of the present case, yet in
the case at hand several opportunity was given to the
Insurance Company and the impugned order passed
10
after appearance of the learned counsel for the
Insurance Company and giving several opportunity to
the counsel of the Insurance Company for six months
and even several adjournments was granted but no fact
was placed before Tribunal or reply filed to suggest that
the vehicle was not insured or vehicle was not involved.
However, impugned order is only interim in nature and
the appellant may raise issue and even recover the
amount if found not liable.
12. However, it is not proper to interfere
with the impugned order at this stage when the enquiry
and proceeding under Section 166 Motor Vehicle Act is
still pending and the appellant may raise issue before
the Tribunal and after giving opportunity to the parties,
issue can well be settled.
13. However, point raised in the matter
between the insurer and the owner, but the third party
would not suffer for the dispute between the insurer
and the owner that who will pay and hence I do not
find merit to interfere with the impugned order at this
stage and hence the appeal is dismissed.
m.p. ( Gopal Prasad, J.)