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Judgment
Bhaskar Raj Pradhan, J
The present appeal preferred by the Appellant raises a singular question as to whether the Appellant could be held to be liable to pay the compensation as determined by the Motor Accident Claims Tribunal (in short “the learned Tribunal”) on the basis of an insurance policy (exhibit-
6) which the Appellant claim to be fake? The Appeal does not question the determination of the learned Tribunal that the Respondent Nos. 1 and 2 were entitled to compensation and the extent of compensation granted. This Court shall therefore, examine only the singular issue raised by the Appellant without disturbing the determination on other issues.
Mr. Sudesh Joshi, learned Counsel for the Appellant submitted that the impugned judgment and award both dated 30.06.2018 on the aforesaid aspect are not sustainable as the learned Tribunal could not determine whether the insurance policy (exhibit-6) exhibited by Respondent Nos. 1 and 2 was genuine or not and that the Appellant ought to have been given an opportunity to allege and prove that it was fake. Mr. Tarun Choudhary, learned Counsel for Respondent Nos. 1 and 2 submits that although, the insurance policy (exhibit-6) had been filed along with the claim petition the Appellant had failed to question the genuineness of the said document in its written objection and as such they were precluded from raising the issue belatedly.
Mr. Ajay Rathi, learned Legal Aid Counsel for Respondent Nos. 3 and 4 submit that it is settled principle of law that a person who asserts a particular fact is required to affirmatively establish the same and since it was the Appellant who had asserted that the insurance policy (exhibit-6) was fake their failure to prove the fact would enure in favour of the Respondent Nos. 3 and 4.
The basic facts before the learned Tribunal for the effective determination of the present appeal were that on 29.03.2016 First Information Report (in short “the FIR”) was lodged by Vaishali Thapa stating that her sister Tshering Doma Tamang (Respondent No.1) studying at Assangthang School was hit by a vehicle No.WB-76-8185 near Helipad, Namchi on 29.03.2016, she had sustained serious injuries on her left foot and evacuated to Namchi Hospital. On 14.11.2016 a claim petition was filed by Respondent No.1-a minor aged 8 years and her mother Hem Rupa Manger (Respondent No.2) before the learned Tribunal. The opposite parties were the Branch Manager, Darjeeling, New India Assurance Company Limited (Appellant), the owner of the vehicle-Mohan Sotang (Respondent No.3) and the driver of the vehicle-Subed Loksam (Respondent No.4).
In the claim petition filed by the Respondent Nos. 1 and 2 the name of the Respondent No.3 was given as the owner of the vehicle and the Appellant as the insurer of the vehicle. Amongst the various documents filed by Respondent Nos. 1 and 2 in the claim petition a photocopy purporting to be certified to be true copy of insurance policy bearing policy no.51230531130200000868 of the vehicle allegedly issued by the Appellant was sought to be relied upon. The claim petition did not disclose how the insurance policy (exhibit-6) was obtained by Respondent Nos.1 and 2.
The Appellant filed written objection on 04.08.2017. In paragraph 8 thereof the Appellant stated “The policy if found would be considered subject to its validity terms and conditions, stipulations, restriction and limitation.” In paragraph 10 the Appellant had submitted “The insured may kindly be directed to produce the original insurance policy before the Hon’ble Tribunal, failing which, this answering respondents shall produce the copy of the policy which may kindly be exhibited and read in evidence.” In paragraph 23 the Appellant sought leave to file additional and amended written objection if necessary.
The Respondent Nos.3 and 4 appeared before the learned Tribunal on 25.05.2017 through an Advocate who undertook to file Vakalatnama. The said Advocate appeared on their behalf on 23.06.2017 as well, but on 04.08.2017 they were marked as absent. On 29.08.2019 they continued to be marked absent and on that date the learned Tribunal framed three issues. The order dated 08.09.2017 records that the Respondent Nos. 3 and 4 were absent on that date as well and proceeded ex-parte. Thereafter, they did not appear before the learned Tribunal nor file any written objection to the
claim. Consequently, the Respondent No.3-the owner of the vehicle did not confirm or deny the insurance policy (exhibit-6) filed by the Respondent
Nos. 1 and 2. On 07.10.2017 evidence on affidavit of Respondent No.2, her witnesses-Arjun Rai and Suresh Rai were filed. Their evidences were authenticated and the said witnesses were cross-examined on 04.11.2017. On the request of the Respondent Nos. 1 and 2 summonses were issued to
Dr. Deokota and Dr. Mohpal pursuant to which they were examined on 02.12.2017. Thereafter, one Bishnu Kant Sharma was examined on behalf of the Respondent Nos.1 and 2 on 15.02.2018 and 16.03.2018 was set for evidence of the Appellant.
On 05.04.2018 the Appellant filed an application under Order VIII Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 ( in short “the CPC”). It was averred that recently while scrutinising the documents the officials of the Appellant learnt that the insurance policy (exhibit-6) as furnished and exhibited by the Respondent Nos. 1 and 2 was a fake policy and as such it was prayed that the Appellant may be permitted to file additional written statement and the relevant documents. Although time was granted to Respondent Nos. 1 and 2 to file a reply the order dated 30.04.2018 reflects that the Respondent Nos. 1 and 2 submitted that they do not desire to file a reply. The matter was heard on the said application and order dated 11.05.2018 was passed.
The learned Tribunal vide order dated 11.05.2018 however, rejected the application but allowed additional documents to be produced by the Appellant. Pursuant thereto, on 20.05.2018 Sonam Tshering Sherpa, Branch Manager of the Appellant at Namchi filed his evidence on affidavit.
Sonam Tshering Sherpa deposed that on verification it was found that the Appellant had issued insurance policy to one Depen Rai for a motor cycle bearing the same policy number of the insurance policy (exhibit-6) produced by the Respondent Nos. 1 and 2. He filed certified copy of the insurance policy (exhibit-A). He categorically deposed that the insurance policy (exhibit-6) exhibited by the Respondent Nos. 1 and 2 was fake and gave details as to why it was so. Sonam Tshering Sherpa also exhibited the investigation report (exhibit-B) of one Rupa Dhakal which reported that the insurance policy (exhibit-6) filed by Respondent Nos. 1 and 2 did not have QR code and thus found to be fake.
On 30.06.2018 the learned Tribunal rendered its judgment. It was held that the Respondent Nos. 1 and 2 are entitled to the compensation claimed by them. The plea of the Appellant that the insurance policy (exhibit-6) produced by the Respondent Nos. 1 and 2 being fake was rejected by the learned Tribunal on several grounds. It was held that Respondent Nos. 1 and 2 had produced the insurance policy (exhibit-6) believing it to be genuine; the Appellant had filed the insurance policy (exhibit-A) at a belated stage of trial i.e. after filing their written objection, after settlement of issues and after examination of Respondent No. 2 and their witnesses; the Appellant failed to examine the Branch Manager of the Darjeeling Branch who had purportedly issued the insurance policy (exhibit-6) and Rupa Dhakal the investigator; the Appellant had not filed any complaint against the Respondent
No. 3 for obtaining fake insurance; It was unbelievable that the Respondent No.3 (the insured) would obtain a fake certificate by paying premium at his risk and cost. The learned Tribunal held that on perusal of the insurance policy (exhibit-6) filed by the Respondent Nos. 1 and 2 and the insurance policy (exhibit—A) filed by the Appellant it is difficult to identify which was fake and which genuine.
An insurance policy is a policy obtained by the insured from the insurer on payment. In the present case vis-a-vis the insurance policy (exhibit-6) the insured is purportedly Respondent No.3. The insurer is the Appellant. The Appellant has given evidence that the insurance policy (exhibit-6) is
fake. The Respondent No.3 has chosen not to give his version before the learned Tribunal and he was proceeded ex-parte. The Respondent No.2 exhibited a photocopy purporting to be certified to be true copy of the insurance policy (exhibit-6). During her cross-examination she admitted that she was unaware about the documents and the insurance policy of the vehicle. There is no evidence at all of the purported insured i.e. Respondent No.3 with regard to the insurance policy (exhibit-6). Respondent Nos. 1 and 2 are not privy to either of the insurance policies (exhibit-6 and exhibit-A). The evidence of Respondent Nos.1 and 2 with regard to the genuineness or otherwise of insurance policy (exhibit-6) is immaterial as they were not privy to it. The mere fact that the Respondent Nos. 1 and 2 had produced the insurance policy (exhibit-6) believing it to be genuine would not thus turn the table against the Appellant. The records reveal that the Appellant realized that the insurance policy (exhibit-6) was not genuine only at the time when they were required to give evidence before the learned Tribunal. Thus, filing of the insurance policy (exhibit-A) along with the application dated 05.04.2018 cannot be termed belated as it is trite that limitation for alleging fraud or forgery would arise from the date of knowledge. In any case records reveal that on 05.04.2018 when the Appellant filed the application only the Respondent Nos.1 and 2 and their witnesses had been examined and the said witnesses would not have, ordinarily, any knowledge about the genuineness of insurance policy (exhibit-6). The learned Tribunal has held that the Appellant failed to examine the Branch Manager of the Darjeeling Branch who had purportedly issued the insurance policy (exhibit-6). The learned Tribunal failed to appreciate that had it allowed the application dated 05.04.2018 of the Appellant to file additional written statement; additional evidence may have been led. Instead, the learned Tribunal permitted the Appellant to file additional documents only. Thus, the failure of the Appellant to examine the Branch Manager of the Darjeeling Branch of the Appellant cannot be held against the Appellant. The learned Tribunal has also held that it was unbelievable that the Respondent No.3 would obtain a fake certificate by paying premium at his risk and cost. However, the learned Tribunal did not consider that the Respondent No.3 had not even bothered to file a written statement and assist it in arriving at the truth. It is unclear as to how the learned Tribunal came to the conclusion that Respondent No.3 had paid premium for the said insurance policy (exhibit-6). Although, the Respondent Nos. 3 and 4 had chosen not to appear before the learned Tribunal pursuant to the summonses issued by this Court they have appeared through Mr. Ajay Rathi, learned Legal Aid Counsel. They have chosen to remain silent even at this stage and argue only on the various discrepancies in the evidence led by the Appellant before the learned Tribunal.
A perusal of the application dated 05.04.2018 filed by the Appellant makes it evident that it was only before the date fixed for the Appellant’s evidence that they discovered that the insurance policy (exhibit-6) was not genuine. Immediately the Appellant moved an application bringing this fact on record and seeking a prayer to file additional written statement with additional documents which was partly turned down. No opportunity was granted to the Appellant to allege and prove that the insurance policy (exhibit-6) was fake. Consequently, the learned Tribunal could not come to a definite conclusion as to whether the insurance policy (exhibit-6) was genuine or fake. The contractual liability of the Appellant can be determined only through the insurance policy (exhibit-6). When admittedly the learned Tribunal could not determine its genuineness it may not be correct to fasten liability upon the Appellant without giving them an opportunity to assert and prove the allegation made in the application dated 05.04.2018 and in the evidence on affidavit of Sonam Tshering Sherpa, the Branch Manager of the Appellant. The judgment of this Court in re: Silli Man Subba v. Man Bahadur Subba MANU/SI/0073/2014 relied upon by Mr. Tarun Choudhary is distinguishable. In the said case the insurance company had not denied that the policy was issued by its employee. The evidence produced by the Appellant in this regard prima-facie does reflect that it needs to be examined during trial. Had the learned Tribunal permitted the Appellant to file additional written statement on this limited aspect allowing them to lead evidence, cross-examination would have churned the truth. The fact that the accident occurred as a result of which the Respondent No.1 suffered injuries is not questioned. The fact that a Tata Sumo vehicle (silver colour) bearing registration No.WB-76-8185 owned by Respondent No.3 and driven by Respondent No.4 in a rash and negligent manner is not disputed. As a result of the accident Respondent No.1 was permanently disabled and her foot had to be amputated is not disputed. The fact that Respondent No.3 is the owner of the said vehicle is not disputed. If the vehicle was in fact insured with the Appellant through the insurance policy (exhibit-6) found to be genuine then it would be the Appellant who would be bound to indemnify the liability of the Respondent No.3. The Appellant however, asserts that the insurance policy (exhibit-6) is fake. Only a photocopy of the insurance policy (exhibit-6) was filed by Respondent No.1 and 2. The said photocopy of the insurance policy (exhibit-6) bears the seal of Namchi police station only and is not certified copy as claimed by the Respondent No.1 and 2 in the list of documents. The original would have been with Respondent No.3 if it was genuine. Respondent No.3 did not produce the original of the insurance policy (exhibit-6) if it existed or depose as to how he procured it. The only question which requires determination is whether the insurance policy (exhibit-6) is fake. The silence maintained by the Respondent Nos. 3 and 4 throughout the proceedings before the learned Tribunal also does not assist the Court in arriving at the truth. In the circumstances, this Court is of the considered view that the impugned judgment on the aspect of the genuineness of the insurance policy (exhibit-6) is incorrect and liable to be set aside. Although, the Appellant has not challenged the order dated 11.05.2018 passed by the learned Tribunal, this Court is of the view that the said order is an impediment towards the search for truth and therefore, the Appellant must be given an opportunity to allege and prove what they assert in the application dated 05.04.2018. Consequently, the findings of the learned Tribunal on the aspect of genuineness of the insurance policy (exhibit-6) and the liability of the Appellant to pay the compensation determined in the impugned judgment and award both dated 30.06.2018 are set aside.
The file in MACT Case No. 10 of 2016 is restored before the learned Tribunal. The learned Tribunal shall permit the Appellant to file additional written statement along with any document they seek to prove in support of their allegation that the insurance policy (exhibit-6) is fake. The Respondents shall be at liberty to file their response if they so desire and if the Appellant chooses to lead oral and documentary evidence (on this limited aspect) the learned Tribunal shall give opportunity to the Respondents to counter the same as per law including permitting them to lead additional evidence. On completion the learned Tribunal shall fix the liability for payment of compensation in the light of the evidence available before it.
The Supreme Court vide order dated 10.07.2019 had directed the Appellant to deposit the entire award amount along with accrued interest before the learned Tribunal and on such deposit being made an amount of Rs.5 lakhs be disbursed to the guardian of Respondent No.1. The rest of the amount was directed to be invested in a fixed deposit till the appeal is decided by this Court so that the deposit may enure the benefit in favour of the succeeding party. An affidavit of compliance was filed by the Appellant. Mr. Tarun Choudhary, learned Counsel for Respondent Nos.1 and 2 also confirmed receipt of Rs.5 lakhs on behalf of Respondent No.1. In the circumstances, this Court is of the view that the amounts invested in a fixed deposit should continue until the final determination on the question of liability for payment of compensation by the learned Tribunal. The fixing of the liability for payment of compensation between the Appellant and the Respondent No.3 would also determine who would ultimately have to bear the payment of Rs.5 lakhs made to the Respondent Nos. 1 and 2 as per the order dated 10.07.2019 passed by the Supreme Court.
The learned Tribunal is requested to determine the question of genuineness of the insurance policy (exhibit-6) and render its judgment on the liability of the compensation payable to Respondent Nos.1 and 2 at the earliest convenience.
The appeal stands allowed as indicated above. The impugned judgment and award both dated 30.06.2018 are set aside to this limited extent and the matter remanded for determination on the question of genuineness of the insurance policy (exhibit-6) and for fixing the liability of the compensation payable.
The observations of this Court on the insurance policies (exhibit-6 and exhibit-A) have been made for determination of the present dispute. The learned Tribunal shall not be bound by any such observation and determine the questions solely based on the evidence led by the parties.
A copy of the judgment shall be forwarded to the Court of the learned Tribunal, South Sikkim at Namchi.