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Lataben v/s Sunil Bhikhabhai Patel


Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

    First Appeal No. 2377 of 2017

    Decided On, 30 January 2019

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE S.G. SHAH

    For the Appellant: Dharitri Pancholi, Advocate. For the Respondent: R3, Ajay R. Mehta, Advocate.



Judgment Text

1. Heard learned Advocate Ms. Dharitri Pancholi for the appellants and learned Advocate Mr. Ajay R. Mehta for respondent No. 3. Notice upon respondent No. 1 has been dispensed with whereas respondent No. 2 though served, has remained absent. Perused the record as well as Record and Proceedings.

2. Appellants herein are original claimants in Motor Accident Claim Petition No. 234 of 1993 before the Motor Accident Claims Tribunal of Vadodara. Such petition is preferred under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 8,00,000 for the accidental death of one Kalidas @ Kantilal Somabhai Parmar, who met with an accident on 18.10.1992. On that day, when he was driving his Scooter No. GBF 7253, one Matador No. GJ.6.T-6573 dashed with him. It is the case of the claimants before the Tribunal that deceased was aged about 28 years and was serving as a mechanic in Indian Petrochemical Corporation Limited (IPCL) and earning Rs. 4,500 per month. The claim petition was initially filed against driver of the Matador only, but as per the order below Exh. 7, the name of the owner and insurer was added in the year 2000, though claim petition was filed in the year 1993.

3. After allowing both the parties to adduce their respective evidence and on consideration of evidence on record, by impugned judgment and award dated 4.1.2016, the Motor Accident Claims Tribunal (Auxilliary), Vadodara has awarded total amount of Rs. 8,00,000 as compensation to be paid jointly and severally by opponent Nos. 1 and 2 being driver and owner of the Matador in question. However, Insurance Company has been exonerated from its liability to pay compensation for the reasons recorded in impugned judgment.

4. Being aggrieved by such exoneration of the Insurance Company to pay the amount of compensation by indemnifying the owner of the vehicle, the claimants have preferred this appeal. When claim petition was for an amount of Rs. 8,00,000 and when the Tribunal has awarded total amount of Rs. 8,00,000 after considering that claimants are entitled to Rs. 8,15,120. Practically appeal is mainly on the issue of liability of Insurance Company, when Insurance Company has been exonerated. However, when Tribunal has considered 20% negligence of the deceased – victim also, the appellant has also challenged such determination submitting that Tribunal ought not to have considered 20% negligence of the deceased, who was driving scooter and that Matador driver i.e. opponent No. 1 ought to have been held solely negligent.

5. I have heard both the sides at length. Perused all relevant documents as well as Record and Proceedings.

5.1 The sum and substance of the submission by the appellants are summarized as under:

The insurance policy is produced on record which confirms that though it is for the period from 14.4.1993 to 13.4.1994, since 15% no claim bonus is offered in premium, it is to be believed that it is renewal policy, there must be an insurance policy between 14.4.1993 to 13.4.1994, so as to cover the liability of the Insurance Company to indemnify the owner for the accident took place on 8.10.1992.

The deposition of the witness by the Insurance Company namely Balkrishna P. Navre at Exh.32 does not confirm that above policy is not renewal policy of any previous policy because Insurance Company has failed to produce relevant documents, and circular produced by the witness at Exh.48 on the contrary confirms that general ledger is to be retained for all time to come.

Insurance Company has failed to produce such general ledger, so as to confirm that they have not received the premium or that this is not a renewal policy but a fresh policy.

5.2 In support of above three points learned Advocate for the appellant has read out the entire deposition at Exh.38 and referred the policy, which is produced with an application for witness summons at Exh.40. Thereby, the policy has never been proved on record by appropriate evidence. Therefore, though on one hand such documents cannot be relied upon at all, even if we rely upon such policy documents, it becomes clear that it is a xerox copy of concerned documents which shows a stamp and seal of the Insurance Company so also signature of the duly constituted attorney of the Insurance Company. Thereby, these documents are xerox of the original documents issued by the Insurance Company and, therefore original documents would certainly be in possession of the owner of the vehicle. Whereas looking to the application at Exh.40 with which, such xerox copy of policy has been placed on record, it becomes clear that such xerox copy is produced by the claimants with their application for a witness summons at Exh.40 to the Insurance Company and bank for production of certain documents. Therefore, there is reason to believe that the claimant has received such xerox copy of insurance policy either from the owner of the vehicle or driver of the vehicle or from the police papers though relevant information in Form No. 54 is not brought on record. If it is so, both disclosure of such documents i.e. either driver, owner or investigating agency and the recipient (claimant) should be careful and vigilant so as to confirm that this policy is covering the date of accident. Unfortunately, instead of doing so in a claim petition which was filed in the year 1993, the claimant has joined the Insurance Company only in the year 2001 and has made an unsuccessful attempt in the year 2006 to call for the documents pertaining to the policy for the purpose of evidence in the form of presumption by the Court that since this policy is a renewal policy it is covering the risk on the date of accident also and, therefore, claimant has prayed for fixing the liability of the Insurance Company to pay compensation by indemnifying the owner as if such policy is sufficient to cover the risk for the previous year. However, the discussion herein after would make it clear that all such evidence, which is referred by the appellant, are not required to be discussed in detail, when it does not prove the existence of insurance policy on the date of accident.

6. The perusal of policy documents available on record makes it clear that though appellant has read the date 20th September as 20th September, 1992 for renewal proposal of the policy. In fact it is not the date of proposal of renewal of policy but the date of preparation of such policy documents on 20th September, 1993 and not 20th September, 1992; since the period of policy is between 14.4.1993 to 21.4.1994. Therefore, there cannot be any policy documents in the year 1992 before 7 months in advance. Therefore, there is substance in the submission by learned Advocate Mr. Mehta for the Insurance Company that only disclosure of 15% no claim bonus in premium, is not sufficient to prove that there must be previous policy in favour of same person for the same vehicle so as to cover the date of accident.

6.1 So far as non-availability of relevant documents asked for by the claimant at Exh. 40 is concerned, surprisingly appellants have tried to rebut the evidence produced by the Insurance Company at Exhs.32 and 48 being deposition of their witnesses and circular regarding destruction of old record by their head office. Though such circular discloses that general ledger is to be retained for all years to come, a policy can be destructed after 3 years whereas premium register can be destructed after 6 years; whereas the accident was occurred as back as on 18.10.1992 whereas Insurance Company has been joined as an opponent as per the application dated 22.6.2001 at Exh.7 by order dated 5.9.2007 only. The date of order can be confirmed from the Rojkam of such date. Whereas at Exh.26 dated 25.1.2005 and Exh. 40 dated 29.8.2006, first time claimant has asked for certain information to be disclosed by the Insurance Company. The application atExh. 7 does not disclose the policy number which is disclosed at Exh. 26 on 15.2.2005 and, therefore, witness of the Insurance Company at Exh. 32 has rightly disclosed on oath before the Tribunal that they are unable to find out such policy since original record has been destructed. At this stage, it would be appropriate to record herein that litigant and their Advocates should be careful while submitting any such affidavit as an evidence before any Court. No such affidavit should disclose the name of concerned Tribunal whereas officer of the insurance has disclosed the name of two Presiding Officers of the Tribunal as if they have directly contacted or call upon the Insurance Company. Such practice needs to be deprecated.

6.2 In any case, the witness has categorically deposed about destruction of record and confirmed that he is not in a position to produce the policy documents and produced on record the circular at Exh.48. Therefore, there is reason to believe that appellant has miserably failed to take care of such situation whereby they are suppose to prove by adducing appropriate evidence that on the date of accident vehicle was insured by the appellant. So far as presumption recorded with reference to previous policy based upon no claim bonus is concerned, Insurance Company has rightly pointed out from the Indian Motor Tariff issued by the Tariff Advisory Board; copy of such document is produced at Exh.63/1; that offer of no claim bonus is available even in case of change of Insurance Company or even in case of renewal of insurance within 90 days. The relevant Regulation Nos. 6, 7 and 10 are as under:

“(6) in the event of an Insured transferring his insurance from one Company to another the new Company shall be entitled to allow him the same rate of discount which he would have received from the previous Company or must charge the same loading which would have been charged by the previous Company.

xxxxxxx xxxx xxxx

(7) When an insured vehicle is sold and not replaced immediately or laid up and the insurance is not immediately renewed, the Discount, if earned may be granted on a subsequent insurance, provided such new insurance be effected within 3 years from the expiry date of the previous insurance. The rate of discount applicable to the new policy shall be that earned at the time of the last complete year of insurance.

xxxxxxx xxxx xxxx

(10) Except as provided in Rules (7) and (9) the discounts may be allowed only when the insurances are continuous.

NOTE : When a policy lapses due to non-payment of a renewal premium and a further insurance is effected within 90 days of the expiry of the policy then the discount earned under the policy may be allowed. However, in the case of Military or Paramilitary Personnel working in Forward Areas, the period of 90 days may be extended upto 180 days depending on the circumstances of each individual case.”

6.3 The bare perusal of such regulation makes it clear that the Insurance Company has to give benefit of no claim bonus to the insured even if previous insurance is by some other company and even after renewal premium is paid within 90 days, so also in the case when insured sold his previous vehicle which was having no claim details, so as to earn no claim bonus for the insurance of new vehicle. Therefore, all such condition goes to show that it is not absolutely correct to presume that only because no claim bonus is offered; which is disclosed on record, but not proved; one should presume that such policy is for the same vehicle and covering the date of accident. Therefore, there cannot be presumption in absence of cogent and reliable evidence to presume such evidence. Similarly, we cannot fix the liability of Insurance Company based upon such presumption upon offering of no claim bonus only, when no claim bonus is available on different consideration, more particularly when original insurance policy is not placed on record and when there is no evidence to confirm that previous policy was by the same Insurance Company and for the same vehicle for which no claim bonus is offered. Therefore, though we may have all the sympathy towards victim of the road accident, more particularly widows and minor children, liability of Insurance Company cannot be fixed in absence of policy of the vehicle, which was involved in the accident. Thereby, there is no substance in the appeal to fix the liability of the Insurance Company.

6.4 It cannot be ignored that the premium for the policy produced on record was paid only on 12.4.1993 and policy was effective from 14.4.1993 to 13.4.1994. Therefore, in any case such policy certainly not covering the date of accident (18.10.1992) and there is no iota of evidence to confirm that respondent-Insurance Company has insured the same vehicle covering date of accident, except the submission to presume that since in this policy 15% no claim bonus is offered there must be a policy covering the date of accident.

7. In view of such position, the appeal could not be allowed, so as to modify the reasoned judgment by the Tribunal exonerating the liability of the Insurance Company only because claimants are widow and minor children and only because of the reason that they may not be able to get the fruit of award in their favour since it would be difficult for them to recover an amount of compensation from the owner of the vehicle. It could not be ignored that driver and owner have not appeared before the Tribunal and that original policy of such would be certainly with the owner. It is also clear that though owner has been served with the notice in the year 2001, till the year 2005 claimant has not bothered to call upon the owner to produce policy documents on record. But in any case when claim petition was filed in the year 1993 and when Insurance Company was joined in the year 2001 i.e. after the gap of almost 8 years that too, without disclosing the policy number, in absence of which it is difficult for the Insurance Company to confirm the policy and thus and attempt to prove that the policy was in existence relaying upon same presumption in the year 2006, does not result into any fruitful evidence, so as to presume that insurance policy was in existence on date of accident.

8. However, though factual details are very much clear as above, learned Advocate for the appellant is referring here counterpart before the Tribunal has submitted that the date considered as 20.9.1992 is practically 20.9.1993. There is no substance in such submission and for the simple reason that irrespective of any such submission, it is undisputed fact that premium for the policy, copy of which is produced at Exh.40 is paid only on 12.4.1993 vide receipt No. 1475. This information is perfectly readable and there cannot be any dispute to such fact. Therefore, if we believe the submission by the appellant, appellant has to explain that how the policy has been prepared before 7 months before the payment of premium when premium is paid only for April 1993. Thus appellant is trying to interpreate each and every documents in their favour without any substance or evidence to that effect.

9. Irrespective of clear factual position as discussed herein above, appellant has relied upon several decisions though none of them would be helpful to allow the appeal. They are discussed hereunder:

(1) Dr. Jyotiprasad v. Mohinder Singh & Ors., reported in 2008 ACJ 276, wherein learned Single Judge of Delhi High Court has held that in case of contentions by the Insurance Company regarding their limited liability when Insurance Company has neither produced original policy nor office copy to discharge its onus so as to prove limited liability and thereby when Insurance Company needs to preserve the office copy of the policy for the period of 5 years and when record pertaining to the policy was destroyed prior to 5 years, adverse interference needs to be drawn against Insurance Company.

I failed to realize that how such judgment would be helpful to present appellant, inasmuch as, in cited case there is no dispute regarding existence of insurance policy, whereas in our case there is no proof regarding existence of policy on the date of accident. Moreover, in a cited case Insurance Company failed to produce copy of policy even after service of notice to prove that their policy is for limited liability and, therefore, probably when Insurance Company has pleaded that they have destroyed its policy, the Delhi High Court has held that adverse inference should be drawn against Insurance Company, since for the accident occurred in the year 1993, first time Insurance Company was joined as opponent in the year 2001 i.e. after 8 years before which, Insurance Company is entitled to destroy relevant documents and, therefore, there is no scope for the Insurance Company to produce such record. Whereas details of insurance was disclosed in the year 2006 only and that too in the form of renewal policy and not in the form of actual policy, which was in force or in existence on the date of accident. Therefore, this citation would not help the appellant in any manner whatsoever.

(2) Nagaraju v. A. R. Lingaraju reported in III (2003) ACC 218=2004 ACJ 242, wherein the learned Single Judge of the Karnataka High Court has held that mere mechanical denial of the insurance of the vehicle with it (Insurance Company) would not be denial in the eyes of law. However, such determination and observations is conditional with sentence continuous with the coma “when required particulars had been furnished….........” Moreover, during hearing of appeal there was an attempt by the Insurance Company regarding existence of insurance policy. Therefore, when Insurance Company has admitted insurance in appeal, the Court has no option but to say that Insurance Company is liable to pay compensation and observe that silence on the part of the Insurance Company could not be ignored or taken lightly and that Insurance Company is duty bound to disclose the existence of policy before the Tribunal itself.

Unfortunately, this judgment would not help the claimant, inasmuch as, the details of policy covering the date of accident has never been disclosed by the claimant and, therefore, Insurance Company has nothing to hide and sick. However, Insurance Company has disclosed all relevant information and more particularly when details of insurance policy has first time disclosed on record after long gap of 13 years. Therefore, such judgment would not help the appellant.

(3) New India Assurance Co. Ltd. v. Krishna Sharma & Ors. reported in I (1998) ACC 287=72 (1998) DLT 68=1998 ACJ 1222, wherein also, the learned Single Judge of Delhi High Court held that when Insurance Company has not called upon the original owner to prove insurance policy, nor proved the certificate of insurance in accordance with law, certified copy of insurance certificate could not be relied upon, so as to restrict the liability of the Insurance Company. However, in the present case facts are altogether different, inasmuch as, there is no issue regarding limited liability, but the issue is regarding existence of policy and, therefore, such judgment would not help the appellant when there is no proper proof of effective insurance policy.

(4) New India Assurance Co. Ltd. v. Vimal Devi reported in IV (2011) ACC 520 (DB)=2010 ACJ 2878, wherein the Honourable Supreme Court has considered the evidence clause in the policy and simply confirmed that decisions of the High Court directing the Insurance Company to make payment of entire awarded amount and recover it from the owner of the vehicle as per the avoidence clause in the policy, though there was no absolute liability of the Insurance Company. Thereby appellant has requested to follow such principle of pay and recover by directing the Insurance Company to first pay and then recover it from the owner of the vehicle. However, it was with reference to breach of policy conditions, so also avoidence clause in the policy and, thereby, existence of policy was admitted. Whereas in the present case, there is no reliable evidence to confirm that there was insurance policy in favour of the vehicle in question and as discussed herein above there is every possibility that such previous policy may be ever before 3 years and may be for some other vehicle; but in any case, when premium for policy was paid only on 12.4.1993, such policy can never be considered as an evidence to confirm that there is effective insurance policy on 18.10.1992.

(5) The case of Rajesh v. Rajbeer Singh reported in II (2013) ACC 841 (SC)=VII (2013) SLT 471=2013 ACJ 1403, wherein the observations of the Honourable Supreme Court is regarding quantum of compensation only, confirming that Tribunals are empowered to award just and reasonable compensation irrespective of limited claim by the claimants and, thereby, approved the award for more amount then claimed. Therefore though there may be beneficiary Legislature in favour of the injured victim, the interpretation of such judgment cannot be extended to fix the liability of Insurance Company, even if there is no insurance policy in existence issued by such Insurance Company.

In that case, practically it is a high time for

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the Legislature to have suitable amendment in Motor Vehicles Act itself, so as to add a provision that as and when any vehicle is sold and allowed to be plied on road, life time single premium may be taken by the seller/dealer/manufacturer for the life time of the vehicle, and thereafter such authority which manages such premium shall pay compensation to the 3rd party victims of the road accident, irrespective of own damage insurance taken by the owner of the vehicle. This may increase the cost of the vehicle on day one, but considering the overall facts, circumstances and situation emerging out of the hearing of the several claim petitions and appeals arising out of them, such arrangement only can met with the situation where third party victim of the road accident may not have to bother for searching the policy for the vehicle, which was involved in the accident. 10. So far as negligence is concerned, the perusal of charge sheet at Exh. 51 goes to show that Matador has dashed the scooter on its backside whereas Tribunal has ignored such vital evidence and held that if the deceased has taken care while driving his vehicle, accident may not be happened and held him 20% negligent. Therefore, relaying upon decision in case of JijuKuruvila & Ors. v. Oriental Insurance Co. Ltd. reported in III (2013) ACC 49 (SC)=VI (2013) SLT 188=2013 Law Suit (SC) 527 and Sarladevi & Ors. v. Divisional Manager, RoyalSundaram Alliance Ins. Co. Ltd. reported in III (2014) ACC 898 (SC)=X (2014) SLT 511=2014 Law Suit (SC) 698 by the Honourable Supreme Court it can certainly be held that Tribunal has committed an error in fixing the negligence on the part of the victim of the accident in absence of evidence by the opponent and more particularly when charge sheet has confirmed that Matador has dashed the victim on his backside and ran over the victim. To that extent, impugned award needs to be modified that by holding that victim was not negligent at all and, thereby, confirmed that claimants are entitled to Rs. 10,18,900 with 9% interest from the date of claim petition till its realization, jointly and severally from opponent/respondent Nos. 1 and 2. Rest of the conditions in award shall remain unchanged. Appeal is partly allowed to aforesaid extent. Record and proceedings be sent back to the concerned Tribunal forthwith. Appeal disposed of.
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