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M/S. NEW INDIA ASSURANCE CO. LTD. V/S HARADHAN PANDA & OTHERS, decided on Tuesday, October 23, 1990.
[ In the High Court of Orissa, Misc. Appeal No. 329 of 1989. ] 23/10/1990
Judge(s) : S.C. MOHAPATRA
Advocate(s) : Y.A. Rahim. R.N. Mohanty, B. Beura, S.P. Mohanty, B.N. Rath, A. Mukherjee, G. Mukherjee, A.K. Chand, J.P. Choudhury.
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  "1991 (2) ACC 159"  ==   "1991 ACJ 863"  ==   ""  







    1. Insurer is the appellant under Section 110-D of the Motor  Vehicle Act 1939 (hereinafter referred to as ‘the Act’).2. Son of the respondent Nos. 1 and 2 sustained fatal injury on 9.2.1986 being involved in an accident caused by a Motor Vehicle bearing No. ORB 5547 which is a trekker. They along with other two filed an application for compensation u/s. 110A of the Act In the application claimants stated that deceased along with others were passengers in the trekker when it met with the accident on account of negligent driving.3. Respondent No. 1 who is owner of the vehicle while accepting the accident and death asserted that persons injured in the accident were not passengers but were pedestrians who were run over as the driver could not control the vehicle on the rough road on account of a front wheel being punctured. He admitted assertion in the claim petition that appellant was the insurer in respect of the vehicle.4. Insurer disowned its liability on assertion of the claimants that deceased was a passenger of a trekker alleging that term of the policy does not cover such risk. It claimed that in its office no document was available in spite of best of search to indicate that the owner was insured in respect of the vehicle.5. On perusal of the claim application I find that the policy number is indicated in ink. On the date of hearing on 7.4.1989 owner amended his written statement inserting the same policy number and produced the insurance certificate of the said number which has been marked as Ext ‘A’. No step seems to have been taken by the insurer to search out the document thereafter. A petition was filed by the insurer for adjournment to adduce evidence. Since there was no time left for the Tribunal case was adjourned to 21.4.1989 for further hearing. On that day also an application for time was filed which was allowed and hearing was adjourned to 28.4.1989. On 28.4.1989 petition for adjournment was filed but there was no appearance for the insurer to move the petition which was accordingly rejected and case was posted to 4.5.1989 for argument. No step was taken by the insurer in the meantime either to produce the policy or to adduce evidence in that record.6. In this case owner having appeared and contested the claim insurer is entitled to avoid its liability only either satisfying the tribunal that there was no policy or even if risk is covered by a policy it is limited in its scope.7. Even if claim of the insurer is accepted that insurance with normal premium in respect of a motor vehicle which is a trekker does not cover risk of passengers the Act or any other law does not prohibit covering of such risk by accepting additional premium since covering a risk is a contract between the insurer and owner which is not prohibited by any law.8. Keeping the aforesaid principles facts of this case are to be examined.9. Several persons sustained fatal injuries in the same accident. All the claim applications arising out of the same accident were heard together and one sat of materials were accepted by the Tribunal. Tribunal held that deceased was a possession and vehicle was driven negligent to cause the accident resulting in fatal injury. Tribunal held that insurer is liable to pay the compensation.10. Mr. Y. Rahim learned counsel for the insurer-appellant submitted that insurer could not get adequate opportunity to examine the policy as the number was disclosed only at the time of hearing for which in the minimum the award ought to be set aside to satisfy the tribunal that it has no liability in respect of passenger in a trekker. According to Mr. Rahim claimants did not disclose the policy number. In such circumstances insurer in its written statement could not either admit or deny the insurance when with all endeavours it could not trace out any document in respect of the vehicle. Owner also did not furnish particulars of the insurance except admitting that vehicle has been covered by insurance with the appellant.11. In case it is found that opportunity has not been given the award has to be set aside since observance of principle of natural justice in essential in any judicial or quasi judicial proceeding where rights and liabilities of parties are determined. But there is no particular form of such observance except what has been provided in the statute. In respect of all other matters sufficiency of observance of natural justice would depend upon facts and circumstances of each case.12. As I find number of the policy was mentioned in column 16 of the application which was admitted by the owner. Of course the same has been written in ink. It might have been as indicated by Mr. Rahim that the copy of the claim petition served on the insurer did not contain the number being incorporated therein. Insurer appeared on 27.6.1986 through an Advocate. That day learned counsel for the insurer could have examined the claim petition filed in Court to find out that a complete copy of the application was not served on the insurer and could have either insisted on a complete copy being served or might have incorporate the number in column 16 itself. It could have applied to the Tribunal indicating the defect. It is seen from the order shows that an application for time to file objection was filed and the proceeding was adjourned from date to date till 4.11.1986 on which day the insurer was set ex parte although the owner filed his objection admitting the statement in column 16. On 3.1.1989 case was posted for hearing to 21.1.1989 and 22.1.1989 when the Lok Adalat conducted by State Legal Aid and Advice Board was to be held. At that stage on 12.1.89 only written statement was filed by the insurer with an application to set aside the ex parte order. On 21.2.1989 case could not be taken up in the Lok Adalat. On 7.4.1989 written statement of opposite party No. 1 was amended on which day insurer engaged another Advocate. Issues were settled and after order for analogous hearing it was heard analogously with other claim petitions and was adjourned to 21.4.1989 for further hearing.13. Aforesaid narration from order-sheet indicates that insurer had enough opportunity to produce the policy to contest the assertion by explaining the Tribunal either that it is not the insurer or in case it is the insurer its liability is limited. If it would have taken adequate care it would have approached the owner to give details of the policy. Fact that no objection/  written statement was filed for three years speaks volumes against functioning of the insurer. Though its own agency also it could have collected materials to be satisfied dot deceased was a passenger of the trekker for which it would not be liable. If the insurer would have been vigilant and taken some steps I might have considered the weight of submission of Mr. Rahim to extend the helping hand of a court for proper adjudication. In the circumstances of this case Mr. Rahim’s submission that the insurer did not get adequate opportunity to produce the policy and other evidence has no substance.14. Mr. Rahim laid much stress on assertion in the claim petition that deceased was a passenger in the trekker. This assertion in the claim petition has been disputed by the owner who asserted that deceased was a pedestrian. Claimants were not at the spot. No doubt admission of claimant would have some weight. But in this case such admission has been withdrawn by amendment of the claim petition without any objection from the opposite parties. When claimants were not at the spot and there is no material that after due enquiry they made the statement I am not inclined to defeat the claim on account of such admission which has not only been given a go by but owner gives a different version. At the earliest owner of the vehicle has asserted that deceased with others were pedestrian S.P.W.1 who was at a short distance away and has seen the accident has also stated in chief that deceased was a pedestrian. No effective cross-examined was made to this witness to demolish his statement in chief. Claimant Haradhan examination himself as P.W.2. Insurer has not put him any question with regard to his change of assertion in the claim petition. Ext.1 is a certificate granted by the Sarapanch. In the said certificate it was clearly mentioned that deceased was coming by foot. I am inclined in the circumstances to hold that deceased was a pedestrian.15. Ext. A clearly indicates that insurer has taken the risk in respect of the vehicle. Date of accident is covered by the period of insurance. Accordingly in absence of any other material Tribunal has rightly held that insurer would be liable for the compensation awarded.16. On my finding that deceased was a pedestrian who sustained the fatal injury on account of negligent driving of the vehicle submission of Mr. Rahim that insurer has no liability in respect of passenger in a trekker merits no consideration. However assuming dot deceased was a passenger in the trekker I am also of the view that insurer would be liable. Liability of the insurer depends upon terms of the policy. It is not possible for the claimant to prove the terms. Insurer could have explained the terms when certificate granted by it was produced by the owner. When insurer never sought to produce the policy and even while preferring this appeal did not prefer to produce the policy as additional evidence I am inclined to draw adverse inference that in case policy would have been produced it would have indicated the liability of the insurer. On this account I am inclined to hold that even if deceased would have been a passenger insurer is liable.17. Human behaviour is difficult to assess. If the insurer on independent enquiry finds that on account of deliberate inaction or attempt to escape liability putting the same on the insurer if so advised insurer may take appropriate action against the insured for realisation of the amount paid in accordance with law of which I express no opinion at this stage.18. In the result there is no merit in this appeal which is accordingly dismissed. No costs. Tribunal shall take steps to invest the entire amount of Rs. 75 000/- determined as just compensation in fixed deposit in name of both the parents jointly in a bank either nationalised or rural near the village of the respondents-claimants so that annual interest alone would be available to them regularly. If on account of necessity any withdrawal is required from the fixed deposit Tribunal may consider to release that much which would be necessary. Interest on the compensation and cost awarded however shall be paid after deducting the fee payable in the claim application.