Gujarat High Court Case Information System
Print
FA/4536/2008 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4536 of 2008
=========================================================
UNITED
INDIA INSURANCE COMPANYLIMITED - Appellant(s)
Versus
CHANDRAKANT
G. MODI & 2 - Defendant(s)
=========================================================
Appearance
:
MR
VIBHUTI NANAVATI for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 17/09/2008
ORAL
ORDER
Heard
learned advocate Mr. Vibhuti Nanavati on behalf of appellant United
India Insurance Co. Ltd.
The
appellant Insurance Company has challenged award passed by Motor
Accident Claims Tribunal, Ahmedabad in MACP no. 531/1988. The
claims Tribunal has passed an award on 29/2/2008 and granted
compensation of Rs. 23,600/- with 7.5% interest from the date of
application in favour of respondent claimants.
Learned
advocate Mr. Nanavati raised contention that claimant has not proved
before claims Tribunal that vehicle in question was insured by
appellant Insurance company. This contention is also raised by
Insurance company before claims Tribunal that detail, which has been
furnished by claimants in respect to Insurance policy is not
sufficient, which can easily find out by Insurance company of
vehicle in question.
The
Insurance company has also raised contention that addressed of
insurance company, which has been supplied by claimants in claim
petition, being an administrative office may not have detail of
policy of vehicle in question.
Therefore,
on this ground, contention raised that merely giving number of
policy without any further details, it is very difficult for
insurance company to find out the insurance policy of vehicle in
question.
Learned
advocate Mr. Nanavati relied upon decision of this Court in case of
Oriental Insurance Co. Ltd Vs Tulsiben Panalal Joshi reported
in 2001 (1) GLH 237 and relied the discussion made at page 240 that
?Sthere was no obligation on the part of the Insurance Company
to summon the original policy from the owner of the truck. On the
other hand, the law is quite settled that if the claimants want to
claim compensation either from the owner of the vehicle or from
the driver of the vehicle or from the insurer of the vehicle, it
is for them to establish following things ::-
[i] That the accident took place, in which the motor vehicle was involved.
[ii] Such accident took place due to rash and negligent driving of the vehicle by its driver.
[iii] That the driver of the vehicle had valid license for driving heavy vehicle in the case where the truck was involved in the accident.
[iv] That injury either personal or fatal was caused to the victim.
Unless these ingredients are established by the claimants, they cannot succeed in claiming any compensation. Thus, the initial burden lies upon the claimants to establish that the vehicle was insured. For that, they have to summon the insurance policy from the owner. As such, there cannot be any shifting of burden of proof upon the Insurance Company to summon the original policy from the owner.??
After
relying upon this decision, he submitted that merely giving number
of policy and not calling owner to produce original policy, there
was no burden upon insurance company to produced original policy
before claims Tribunal.
I
have considered submissions made by learned advocate Mr. Nanavati
and also considering discussion at para 12 made by claims Tribunal,
which is quoted as under:
?S12. The
learned advocate for the applicant has submitted that though notice
is duly served to the opponent no. 2 and written statement is filed,
the opponent ? insurance company has neither produced the original
policy not office copy to discharge its liability and hence, adverse
inference against the insurance company is required to be taken and
therefore, both the opponents should be held liable to pay
compensation to the applicant. In support of his arguments, he has
placed reliance upon a decision of the Delhi High Court in the case
of Dr. Jyoti Prakash Tayal Vs. Mohinder Singh and others, as
reported in 2008 ACJ 276, wherein the insurance company neither
produced original policy nor office copy to discharge its onus of
proving limited liability and the Tribunal drew adverse inference
against the insurance company and the Hon’ble Delhi High Court
upheld the decision of the Tribunal. The above ratio is fully
applicable to the present case and therefore, in light of the above
decision, both the opponent no. 1 and 2 are held liable to pay the
above stated amount of compensation to the claimants with interest
at the rate of 7.5% p.a. (New India Assurance Co. Ltd, Vs Charlie
reported in AIR 2005 SUPREME COURT 2157) from the date of filing the
claim application upto the date of payment. Therefore, I pass the
following order.
ORDER
The
petition is hereby partly allowed.
The opponents are
jointly and severally held liable to pay Rs. 23,600/- (Rupees Twenty
Three Thousand and Six hundred Only) to the applicant as compensation
with interest thereon at the rate of 7.5% p.a. from the date of
application till its realization with proportionate costs.
After deduction of
NFL amount and Court fees, if any, out of the remaining amount, 60%
amount shall be deposited in the name of applicant in any
Nationalized/Scheduled Bank for a period of five years, with a
direction to the Bank not to grant any years, advance on the said
F.D.Rs without prior permission of this Tribunal and the remaining
40% amount shall be paid to applicant by A/c payee cheque. However,
applicant shall be at liberty to withdrawn the periodical interest on
the said F.D.Rs as per rules of the Bank. Award be drawn
accordingly.??
Before
claims Tribunal number of policy was given by claimants being a
140174, but other details were not given by claimants. The
claimants have not joined owner but only driver was joined, who
remained absent before claims Tribunal and only insurance company
has submitted reply at exh 15. The contention of learned advocate
Mr. Nanavati is that in absence of owner, liability of indemnify the
owner does not arise.
I
have considered all this contentions, the question is that when
insurance company is appearing before claims Tribunal filed written
statement then insurance company shall have to made it clear before
claims Tribunal that this vehicle in question was insured with them
or not that fact was not made it clear by insurance company before
claims Tribunal and only insisted further details of policy is not
enough.
In
view of this background, according to my opinion, claims Tribunal
has not committed any error, which would require interference by
this Court. Apart from that Tribunal has awarded Rs. 23,600/- which
is under challenged. Therefore, considering smallness of amount also
appeal is not entertained by this Court.
Hence,
there is no substance in the present appeal. Accordingly, present
appeal is dismissed.
Today,
first appeal is dismissed by this Court, therefore, no order is
required to be passed in civil application. Therefore, civil
application is also disposed of.
(H.K.RATHOD,
J)
asma
Top