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Judgment
B V L N Chakravarthi, J
This appeal is preferred by the 3rd respondent/Insurance Company, challenging the order and decree dated 06.06.2011 passed in M.V.O.P.No.599/1998 on the file of Motor Accidents Claims Tribunal-cum-District Judge, Vizianagaram, wherein the learned Tribunal while partly allowing the petition, awarded compensation of Rs.3,14,000/- with interest @ 6% p.a. from the date of petition, till the date of realisation for the death of Reddy Raghu in a motor vehicle accident occurred on 19.02.1998.
For the sake of convenience, the parties are arrayed as parties in the trial Court.
As seen from the record, originally the petitioner filed an application U/s.166 of Motor Vehicles Act, 1988 (for brevity “the Act”) claiming compensation of Rs.3,24,000/- on account of the death of Reddy Raghu in a motor vehicle accident occurred on 19.02.1998.
The facts show that the petitioners are the parents of the deceased Reddy Raghu. On 19.02.1998 the deceased and two others started on a scooter being driven by the deceased, when they reached near Ramabhadrapuram at about 04.15 p.m. a lorry bearing No.AP 35T 1080 came in opposite side, in a rash and negligent manner, at high speed and even without blowing horn and traffic rules, dashed the said scooter, as a result, the two persons, who were travelling along with Reddi Raghu died on the spot due to simple and grievous injuries. The deceased Raghu sustained simple and grievous injuries all over the body and while he was taking to Vizianagaram from Salur, he died. The Station House Officer, Ramabhadrapuram P.S. registered the case in Cr.No.12/1998 U/s.304-A IPC against the 1st respondent.
The deceased was aged 25 years and working as Radio and T.V.Mechanic and also doing videography business under the name and style of Manikanta Electronics at Gajapathinagaram and earning Rs.3,000/- per month. The petitioners are depending on the earnings of the deceased.
The petition against the respondent No.1 was abated, as he was reported dead.
The respondent No.2 remained exparte.
Before the learned Tribunal, the 3rd respondent/Insurance Company filed counter, while traversing the material averments with regard to proof of age, avocation, monthly earnings of the deceased, manner of accident, rash and negligence on the part of the driver of the offending vehicle, and liability to pay compensation, contended that the accident was occurred only due to the negligence driving of deceased and two others. There is no valid and subsisting driving license to the driver of scooter. The amounts claimed by the petitioners are highly exaggerated.
On the strength of the pleadings of both parties, the learned Tribunal framed the following issues for trial:
Whether the accident occurred due to rash and negligent driving of the accident vehicle as alleged in the O.P.?
Whether the respondents No.1, 2 and respondent No.3 or any of them are liable to pay any compensation, interest and costs, to the petitioners and if so, to what amounts?
To what relief?
To substantiate their claim, the petitioners examined P.Ws-1 and 2 and got marked Exs.A-1 to A-7. On behalf of the 3rd respondent, R.Ws-1 and 2 were examined and Ex.B-1 was marked.
The learned Tribunal, taking into consideration the evidence of P.Ws-1 and 2, coupled with Exs.A-1 to A-7, held that the accident took place due to the rash and negligent driving of the lorry bearing No.AP 35 T 1080, and further, taking into consideration the evidence of P.Ws-1 and 2, corroborated by Exs.A-1 to A-7, awarded a compensation of Rs.3,14,000/- with interest @ 6% p.a. from the date of petition, till the date of realisation against the respondents 2 and 3.
The contention of the learned counsel for the appellant/Insurance Company is that the crime vehicle involved in the case is a lorry bearing No.AP 35T 1080 and the petitioners initially impleaded the Oriental Insurance Company Limited, represented by its Manager, Salur, Vizianagaram District saying that the insurance policy for the crime vehicle was issued by the said office; and later, the learned Tribunal passed an award dated 30.10.2000 granting compensation of Rs.83,400/- only; then the petitioners filed C.M.A.3633/2000 on the file of High Court on the said appeal was disposed of by order dated 31.12.2009; The appeal was allowed setting aside the award of the learned Tribunal; The case was remitted to the Tribunal for fresh disposal, and in the appeal, the name of the 3rd respondent was amended as per orders of the Court as Oriental Insurance Company Limited, represented by Divisional Manager, Divisional Office, Dwaraka Nagar, Visakhapatnam; accordingly, the said office filed counter before the learned Tribunal contending that the policy No.43220/1997 mentioned in the M.V.I.Report is not correct; There was no Branch at Salur in the year 1997 and therefore, the crime vehicle was not covered by any insurance policy issued by the 3rd respondent at the time of accident, but the learned Tribunal in the present order dated 06.06.2011, which is under challenge in this appeal, did not consider the said plea of the appellant and fastened liability jointly and severally along with the insured.
The learned counsel for appellant/Insurance Company Smt. A.Jayanthi vehemently contended that initially, the 3rd respondent is Oriental Insurance Company Limited, represented by its Manager, Salur Office and at that time, no notice was served to the 3rd respondent/Insurance Company, but it was set exparte and the learned Tribunal passed award dated 30.10.2000; it was challenged by the claimants before the High Court in C.M.A.3633/20000 for enhancement of compensation and in the appeal, as per orders of the High Court, claimants amended the name of the 3rd respondent/Insurance Company showing the Divisional Office, Visakhapatnam in the place of office at Salur; after matter was remitted to the learned Tribunal by setting aside the award dated 30.10.2000, the 3rd respondent/Insurance Company i.e., present appellant filed counter, stating that the insurance policy bearing No.43220/1997 mentioned in the M.V.I.Report is not in existence; it was not issued by their office and therefore, the crime vehicle was not covered by the insurance policy issued by the 3rd respondent at the time of accident; but the learned Tribunal failed to consider the evidence placed by the insurance company and erroneously fastened liability on the 3rd respondent.
The learned counsel for respondents/claimants would contend that the M.V.I.Report disclosed a policy bearing No.43220/1997 and the same was mentioned in the claim petition and as per orders of the High Court in C.M.A.3633/2000 details of the 3rd respondent were amended, showing its Divisional Office at Visakhapatnam instead of Salur Office; 3rd respondent though contended that the said insurance policy was not issued by them, did not place any evidence to prove the same; She further contended that the burden to prove the plea taken by the 3rd respondent/Insurance Company is on the 3rd respondent only; they failed to discharge their burden; in the absence of evidence produced by the 3rd respondent to prove that the insurance policy number mentioned in the M.V.I. report is false, there are no grounds to interfere in the appeal.
In the light of above rival contentions, the point that would arise for consideration in this appeal is as under:
“Whether the order and decree passed by the learned Tribunal warrants interference of this Court?”
POINT:
Perused the material available on record. It is an undisputed fact that the deceased Reddy Raghu is son of the claimants and he died in a motor vehicle accident on 19.02.1998. The learned Tribunal on consideration of the evidence placed before it about the manner in which the accident was occurred and the crime vehicle involved in the accident, on issue No.1 held that the evidence on record proved that the accident was occurred due to rash and negligent driving of lorry bearing No.AP 35T 1080. In the said accident, the deceased sustained injuries and died.
The contention of the insurance company is that as per section 151 of M.V.Act 1988, owner of the motor vehicle has a duty to furnish particulars of insurance, if called upon to do and the appellant issued a notice to the owner of the vehicle to produce the insurance policy, but he failed to do so, and the claimants also did not place any evidence as to how the vehicle was insured with the appellant/insurance company. The further contention of the insurance company is that there is no evidence available on record to show that the crime vehicle was insured with the appellant/insurance company and in fact, there was no office of the appellant/insurance company at the material point in time i.e., at the time of accident at Salur; and the learned Tribunal failed to appreciate the said fact and fastened liability on the 3rd respondent/insurance company along with the respondent No.2 jointly and severally.
The Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Swaran Singh and others 2004 (3) SCC 297 with regard to burden of proof on existence of insurance policy and pleas relating to violation of terms of the insurance policy taken by the insurer held as follows:
“The burden to prove the defence raised by the insurers as regard the question as to whether there has been any breach of violation of policy conditions of the insurance policy has been issued or not, would be upon the insurer. The breach on the part of the insured must be a wilful one being of fundamental condition by the insured himself and the burden of proof, therefore, would be on the insurer.”
In the case on hand, the petitioners filed Ex.A-3 certified copy of M.V.I.Report which discloses that the crime vehicle is a lorry bearing No.AP 35T 1080 and it is covered by the insurance policy bearing No.43220/1997 issued by the Oriental Insurance Company Limited.
It is pertinent to note down that the owner of the said crime vehicle i.e., 2nd respondent remained exparte before the learned Tribunal.
The 3rd respondent in support of its contention, examined its Administrative Officer as R.W-1 and also examined an Official from RTA Office as R.W-2. The learned Tribunal in its order stated that R.W-1 in his evidence simply mentioned that the insurance policy No.P554 valid upto 22.08.1998, but he did not state the branch name, whereas the M.V.I.Report discloses that policy No.43220/1997 of the Oriental Insurance Company Limited, Salur and date of expiry as 22.08.1998. R.W-1 in the cross-examination admitted that the appellant/insurance company did not take any steps to ascertain policy number and branch office mentioned in the M.V.I.Report. They pleaded that notice was issued to the owner of the vehicle, but did not file any such record to show that they gave notice to the owner of the vehicle to produce copy of insurance policy. He also admitted that the record relating to Investigator Report about conducting investigation about the policy number referred in the M.V.I.Report is also not placed before the Court. In the said circumstances, the learned Tribunal held that as per M.V.I.Report policy No.43220/1997 is valid upto 22.08.1998 and it is in the name of Oriental Insurance Company Limited.
In the view of non-production of any record by the appellant/insurance company to establish that it issued notice to the 2nd respondent/owner of the vehicle for production of copy of insurance policy and that they have appointed an Investigator to enquire about the insurance policy particulars mentioned in the M.V.I.Report, the oral evidence of R.W-1 will not help the case of the appellant/insurance company. Therefore, they failed to discharge their burden. Further, the learned Tribunal also observed that the appellant/insurance company in their counter did not take any specific plea that their office at Visakhapatnam not issued the said insurance policy to the crime vehicle and their registers did not disclose the said insurance policy number and in the absence of specific plea and evidence, the plea of the 3rd respondent/ insurance company cannot be considered and accordingly, rejected.
The counter filed by the 3rd respondent before the learned Tribunal do not disclose any specific plea that the insurance policy No.43220/1997 mentioned in Ex.A-3 M.V.I.Report, not relates to the 3rd respondent/insurance company and that no such insurance policy was ever issued by the office of 3rd respondent at Visakhapatnam.
It is also pertinent to note down that except the oral testimony of R.W-1, the appellant/insurance company did not choose to place any documents, which would establish the case of the 3rd respondent that it issued notice to the 2nd respondent U/s.151 of M.V.Act, 1988 to produce the said insurance policy. No record also placed before the learned Tribunal to establish that an Investigator was appointed to enquire about the said insurance policy and he found that no such policy was ever issued by the 3rd respondent/insurance company for the crime vehicle involved in the impugned accident.
In the light of principles laid down by the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Swaran Singh and others with regard to burden of proof and responsibility of the insurance company to discharge the same, the plea in respect of existence of the insurance policy and its terms, as in the case on hand, the appellant/insurance company neither take a specific plea that the insurance policy No.43220/1997 as mentioned in Ex.A-3 M.V.I.report never in existence and that it was not issued by their office at Visakhapatnam, appeal is liable to be dismissed. Further, no evidence placed before the learned Tribunal to establish that they issued notice to the 2nd respondent calling him to produce copy of insurance policy.
The claimants produced Ex.A-3, which is a copy of M.V.I.Report, stating that the crime vehicle was covered by the insurance policy bearing No.43220/1997 issued by the appellant/Insurance Company and it is valid upto 22.08.1998.
In that view of the matter, the contention of the appellant/insurance company that the claimants did not explain how the vehicle was insured with the particular insurance company, is not tenable. The judgment of this Court relied on by the learned counsel for the appellant/insurance company in United India Insurance Company Limited, rep. by its Divisional Manager Vs. B.Jaya Lakshmi 2004 LawSuit (AP) 392, has no application to the facts of the case on hand.
In the light of above discussion, this Court do not find any grounds to interfere with the order and decree passed by the learned Tribunal, and the appeal is liable to be dismissed. Accordingly, the point is answered.
In the result, the appeal is dismissed, by confirming the order and decree dated 06.06.2011 passed in passed in M.V.O.P.No.599/1998 on the file of Motor Accidents Claims Tribunal-cum-District Judge, Vizianagaram. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.