At, In the High Court of Bombay at Nagpur
By, THE HONOURABLE MR. JUSTICE VINAY JOSHI
For the Appellant: Asgar Hussain, Advocate. For the Respondents: R1 & R2, M. Masodkar, Advocate, R4, S. Raisuddin, Advocate.
Oral Judgment :
1. Heard learned counsel for the parties.
2. The Insurance Company has filed this appeal challenging the judgment and award passed by the Chairman, Motor Accident Claims Tribunal, Amravati in Claim Petition No.483/2011 on 09.06.2016. The learned Counsel for the appellant has canvassed that the appeal is filed only to the extent of challenging the liability fastened on the insurance company, since according to the insurer, the offending vehicle was not at all insured with them.
3. Since the issue is restricted to that extent only, I do not find it necessary to deal with rest of the facts. Precisely on account of death of one Rekha, who died in a vehicular accident on 10.10.2011, a Claim Petition was preferred by her legal representatives. The Tribunal on consideration of facts, vide impugned judgment and award dated 09.10.2016, awarded total compensation of Rs.6,43,000/- along with interest.
4. The only challenge is about coverage of insurance to the offending vehicle namely Mahindra Max Pickup bearing registration No. MH 29/T-3657. It reveals from record that the claimants had filed a copy of insurance policy which is marked by the Tribunal at Exh.30 and read in evidence also. On perusal of the policy document it reveals that the said policy is in the name of respondent no.3 Hanif [erstwhile owner of the vehicle]. The policy [Exh.30], was effective from 28.07.2011 to 27.11.2012, meaning thereby it covers the date of accident which occurred on 10.10.2011. On the basis of the said policy, the Tribunal has fastened joint and several liability on the owner as well as the insurer.
5. With the assistance of learned counsel for the appellant, gone through the written statement filed by the respondent – insurance company. In paragraph no.2 of the written statement, the insurance company has contended that at present it is unable to admit whether the vehicle was ensured or not. It is stated that the respondent denies the insurance unless particulars are furnished by the owners. Apparently, there is no specific denial of the policy, nor there is any stand that the policy is a fake. It is common experience that at initial stage, the insurer use to deny everything by make qualified statement that at this stage the policy is denied.
6. Be that as it may, the insurer has not led evidence to disprove the policy Exh.30, which is tendered before the Tribunal. It is incumbent on the part of the insurer to lead evidence in rebuttal, but, they have chosen to remain silent. Inasmuch as the insurer though cross examined the claimant has not put a single suggestion that the offending vehicle was not insured. There is absolutely nothing to uphold the contention of the appellant that the offending vehicle was not insured at the relevant time. There is no reason to discard the insurance policy which is proved in evidence. In view of that, I do not find any substance in the matter. First Appeal is accordingly dismissed. No costs.
7. Civil Application No. 1729/2019, is moved by respondent nos. 1 and 2/claimants seeking withdrawal of compensation amount which has been deposited by the insurance comp
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any with the Tribunal. 8. Today the appeal is heard and decided on merits. In view of the findings recorded therein, the claimants are entitled to withdraw the amount so deposited by the appellant insurance company with the Tribunal. They are permitted to do so in terms of the award passed by the Tribunal. Civil Application stands disposed of.