IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.1085 of 2002 United India Insurance Co. Ltd., M.M.Reddy Complex Hosur Road Hosur Taluk Dharmapuri Dist. ... Appellant Vs. 1. Kandan 2. Vijaya 3. M.Geetha Lakshmi ... Respondents This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the Judgment and Decree of the Motor Accidents Claims Tribunal (Subordinate Judge), Dharmapuri passed in M.C.O.P.No.868/1992 dated 03.07.2001. For Appellant : Mr.K.S.Narasimhan For Respondent : Mr.R.Subramanian (For R1 and R2) J U D G M E N T
This Civil Miscellaneous Appeal has been preferred against the award passed by the Motor Accident Claims Tribunal (Subordinate Judge), Dharmapuri dated 03.07.2001 made in M.C.O.P.No.868/1992 on the file of the said Tribunal.
2. The respondents 1 and 2 herein, having lost their 8 years old girl child by name Valarmathi in an accident that took place at 3.00 p.m. on 28.06.1991 at old quarters, Savulupatty, within the jurisdiction of Adiyamankottai Police station, made a claim before the Tribunal against the third respondent herein and the appellant herein in their capacities as owner and insurer of the offending vehicle, namely the lorry bearing Registration No.TNB-3697. Though the total damages was calculated at Rs.1,50,000/- by the respondents 1 and 2/ claimants, restricting their claim to Rs.1,00,000/-, they prayed for an award against the said owner and the alleged insurer of the offending vehicle.
3. The claim was resisted by the appellant herein alone. The third respondent herein/the owner of the offending vehicle did not contest the claim and chose to remain ex-parte. Admittedly, the insurance company, without obtaining any permission under Section 170 of the Motor Vehicles Act, 1988, simply contested the claim based on its plea that the vehicle was not insured with the appellant/insurance company as on the date of accident.
4. Negativing such a plea, the Tribunal allowed the claim petition and awarded a sum of Rs.1,00,000/- as compensation which amount was directed to be paid jointly and severally by the appellant herein and the third respondent herein along with an interest at the rate of 9% per annum from the date of petition till realization and with costs. Challenging the said award regarding the fixation of the liability of the appellant/insurance company, the present appeal has been preferred.
5. In view of the admitted position that the appellant/ insurance company did not get any permission under Section 170 of the Motor Vehicles Act before the Tribunal and the present appeal itself has been preferred not on the question of negligence or quantum, but on the question of liability of the appellant to shoulder the liability of the owner of the vehicle alone, the point that arises for consideration is very narrow, namely – “whether the appellant/insurance company is not liable to pay the compensation to the respondents 1 and 2 on behalf of the third respondent, the owner of the offending vehicle?”
6. This court heard the submissions made by Mr.K.S.Narasimhan, learned counsel appearing for the appellant and Mr.R.Subramanian, learned counsel appearing for the 1st and 2nd respondent. The materials available on record were also perused. This court also gave its anxious consideration to the rival submissions made by the counsel appearing be either side.
7. The learned counsel for the appellant vehemently argued that the claimants who had approached the tribunal with the specific case that the offending vehicle stood insured with the insurance company should have adduced sufficient evidence to prove the same; that the respondents 1 and 2 herein failed to produce evidence sufficient enough to prove the said contention or at least to cause the shifting of the burden on the appellant/insurance company to prove the absence of insurance coverage; that in such circumstances, the Tribunal should have held that the vehicle was not insured with the appellant/insurance company as on the date of the accident and that the Tribunal committed an error in holding the appellant/insurance company liable to pay compensation on behalf of the owner of the vehicle assuming that the vehicle should have been insured with the appellant/insurance company. It is the further submission made by the learned counsel that the said finding is against the preponderance of evidence and based on mere surmises. Pointing out observations made by the tribunal – “once a vehicle is insured with a particular insurance company, it is the normal practice of the owners of the vehicle to get the insurance renewed in the very same insurance company and hence the offending vehicle should have insured with the appellant/insurance company on the date of accident” – the learned counsel for the appellant submitted that the said observation of the tribunal was based on surmises and suppositions which could not be sustained at all and that hence the award of the Tribunal should be set aside so far as the fixation of the liability on the appellant/insurance company was concerned.
8. Per contra, the learned counsel for the respondents 1 and 2 would contend that the respondents 1 & 2/claimants, based on the particulars they could gather, had made a specific plea in the petition to the effect that the offending vehicle was owned by the third respondent herein and the said vehicle stood insured with the appellant herein as on the date of the accident; that when such was the plea made by the respondents 1 and 2 and the defence plea made by the appellant herein contained an admission that the vehicle stood insured with the appellant insurance company prior to the date of accident, but a further plea was made to the effect that the said insurance policy expired a few days prior to the date of accident, the burden shifted on the appellant/ insurance company to prove that the admitted insurance policy expired prior to the date of accident; that the appellant/insurance company having all means to produce the best evidence in this regard had not chosen to produce a copy of the admitted policy to substantiate its contention that the policy expired a few days prior to the date of the accident and that hence there was no defect or infirmity in the finding of the Tribunal that the appellant/insurance company had not proved its case that the admitted insurance policy expired prior to the date of accident and that hence as on the date of accident the offending vehicle stood insured with the appellant/insurance company. Though the respondents 1 and 2 may not be in a position to support the observation made by the tribunal to the effect that the policy would have been renewed in the very same insurance company, the finding of the Tribunal that the vehicle stood insured with the appellant/ insurance company as on the date of the accident should be upheld as the appellant/insurance company has not produced the copy of the policy to substantiate its contentions that the said policy expired prior to the date of accident – the learned counsel for the respondents 1 and 2 contended.
9. This court is able to find substance in the contention of the learned counsel for the appellant that the observations made by the Tribunal that the owner of the vehicle should have renewed the insurance policy taken from the appellant/insurance company even after the expiry, as it is normal practice of the owners of the vehicles to get the insurance policy renewed from the very same insurance company. This court is not in a position to accept such a far reaching proposition. The motor vehicle insurance is a contract between the owner of the vehicle and the insurer. It is not necessary that the owner of a particular vehicle should stick on to a particular insurance company for the purpose of getting coverage of insurance for his vehicle. It is not uncommon for the owners of the vehicles to change the insurance company according to their convenience and according to their satisfaction of the service rendered by the company. As such, the said observation of the tribunal deserves disapproval and the same cannot be the basis on which the liability would be mulcted on the appellant/insurance company.
10. In support of the contention of the appellant, the learned counsel for the appellant cited the judgment of this court in United India Insurance Co. Ltd., Karaikal Vs. Sudhakar Minor, represented by his father and natural guardian Mr.Ramayyan and another reported in (2007) 1 MLJ 234. The relevant paragraph in the said judgment relied on by the learned counsel for the appellant is extracted here under for better appreciation:-
” 8. As rightly pointed out by the learned counsel appearing for the appellant, unless the policy details are furnished to the insurer by the claimant, it is impossible for the insurer to produce the policy before the Tribunal. In this case, the second respondent/the owner of the vehicle remained ex parte. The first respondent herein has also not adduced any evidence to show that the vehicle in question was insured with the appellant. The claimant has also not produced any evidence to show that the Branch Office of the appellant was located at the relevant point of time at Karaikal. The Tribunal has erred in fastening the burden on the insurer to prove a negative thing, which in the considered view of this Court, is erroneous. Therefore, this Court is of the considered view that the finding of the Tribunal that the vehicle in question was insured with the appellant herein is erroneous and has to be set aside and accordingly set aside.”
11. On the other hand, the learned counsel for the respondents 1 and 2 cited a judgment of a Division Bench of this court in United India Insurance Co. Ltd., Vs. R.Venkatesan and another reported in 2004 ACJ 727. In the said judgment, the Division Bench dealt with a case in which also particulars were furnished by the claimants in the petition and the insurance company expressed its inability to ascertain whether such a policy was issued in one of their offices or not. The Division Bench held that as particulars of the insurance policy were furnished in columns 9 and 16 of the petition, it should not be claimed that the claimant had failed to furnish the required details. Not stopping with that, the Division Bench proceeded further and stated that, in case the particulars furnished by the claimants were not sufficient, the insurance company could have ascertained further particulars from the investigation officer and that the insurance company in such circumstances should be held to have failed to discharge its burden of proving absence of policy.
12. The judgment cited by the learned counsel for the appellant may not be applicable to the facts of the case on hand. In the said case there was a total denial of insurance coverage and only in the light of such a plea taken by the insured, the learned judge seems to have made the observations that the insurer could not be expected to prove the negative when the claimant was placed in a better position to prove the positive assertions that the vehicle stood insured with the particular insurer as on the date of the accident. Hence the same can be differentiated from the case on hand in this case.
13. Ofcourse it is true that the respondents 1 and 2 herein/ claimants had not furnished necessary particulars concerning the insurance policy except furnishing the name of the insurer. Policy number, date of commencement and date of expiry were not furnished in the claim petition. Under such circumstances, if at all there is a general denial alone that the vehicle in question was not insured with the appellant/insurance company in this case, then the observations made in 2007(1) MLJ 234 (cited supra) would be highly applicable to this case. On the other hand, the appellant/insurance company had admitted in its counter statement before the tribunal that the vehicle in question stood insured with the appellant/insurance company prior to the date of accident. However, it was contended that the said insurance policy expired a few days prior to the date of accident and hence the appellant/insurance company was not liable. When there was an admission that the vehicle stood insured with the appellant/insurance company prior to the date of accident, the burden of proving the plea that the said insurance policy expired a few days prior to the date of accident lies on the appellant/insurance company. The said fact can be easily established by producing a carbon copy of the policy certified to be true copy by an officer of the insurance company. The appellant/ insurance company has not chosen to do so. On the other hand, the appellant/insurance company was content with adducing oral evidence.
14. When best evidence is available and the party capable of producing such evidence has not chosen to do so, an adverse inference can be drawn against such party. In this case, the failure on the part of the appellant/insurance company to produce a copy of insurance policy, admittedly issued in respect of the offending vehicle which according to them expired a few days prior to the date of accident, will give rise to such an inference that the policy would not have expired as on the date of accident. Even though the appellant/insurance company might have omitted to produce the same before the Tribunal, the same could have been done in the appeal by seeking permission to adduce additional evidence. When this court addressed a question to the learned counsel for the appellant as to why the appellant/insurance company was not prepared to produce a copy of the insurance policy, the answer was that there was no necessity for the insurance company to produce it. Under such circumstances, this court comes to the conclusion that the adverse inference indicated above should be drawn and on the basis of such inference finding of the tribunal that the offending vehicle stood insured with the appellant/insurance company as on the date of accident has got to be sustained.
15. In view of the foregoing discussions, this court comes to the conclusion that the finding of the Tribunal that the vehicle stood insured with the appellant/ insurance company as on the date of the accident does not require any interference and the same deserves to be confirmed. Consequently, the appeal preferred by the appellant/insurance company is bound to fail as there is no merit in it.
P.R.SHIVAKUMAR, J.
ASR
In the result, this appeal is dismissed. However, there shall be no order as to costs.
27.06.2008
Index : Yes/No
Internet : Yes/No
asr
To
1) Motor Accidents Claims Tribunal
(Subordinate Judge), Dharmapuri
C.M.A.No.1085/2002