Swapan Dey vs Uttam Shil

[1] This appeal has been filed by the owner of the offending vehicle challenging the award dated 17.07.2018 passed by the Motor Accident Claims Tribunal (No.1) of Gomati Judicial District at Udaipur in case No.T.S.(MAC)74 of 2015 whereby compensation of a sum of Rs.3,64,130/- with 6% annual interest was awarded to the claimant for injuries suffered by him and appellant was directed to pay the entire amount of compensation. Hence this appeal.

[2] Pursuant to notice issued by this court, the respondents have appeared.

[3] Uttam Shil, respondent No.01 received grievous injuries in the accident which took place near Netaji Subhash Chandra Bose Mahavidyalaya at Udaipur when he was travelling on his motor bike from Udaipur to Agartala. The vehicle of the appellant carrying registration No.TR-03-C-1908 hit his motor bike at a high speed as a result of which claimant respondent No.01 slipped from his bike and got injured. After the accident, he was treated in various hospitals as an indoor patient and after recovery he claimed compensation for the injuries and loss suffered by him in the said accident by means of filing an application in the said Motor Accident Claims Tribunal at Udaipur.

[4] After conducting trial, the said tribunal awarded compensation of a sum of Rs.3,64,130/- with 6% annual interest thereon from the date of filing the claim petition till payment and directed the appellant owner of the offending vehicle to pay the entire amount of compensation to the claimant observing as under:

"9. Now the question arises who is to pay the compensation. The OP Nos. 1 and 2, the owner and driver of the offending vehicle No.TR-03-C- 1908(Bolero Pickup) though contested the case by filing written statement but did not prove the vehicular documents into evidence though sufficient opportunities were given to them to adduce evidence on their behalf. Besides, in the written statement they also did not dispute the fact that OP No.1 was not the owner of the offending vehicle and that their vehicle was not involved in the accident. The charge-sheet of the police case(Ext.2) reflects that the accident occurred out of use of the vehicle no.TR-03-C-1908(bolero pickup), so, liability of making payment of compensation shall be borne by him."

[5] Aggrieved by and dissatisfied with the said order, owner of the offending vehicle being appellant has challenged the impugned order of the tribunal only on the ground that his vehicle was duly insured and the policy was in force on the date of occurrence and in terms of the policy, the insurer is liable to pay the compensation.

[6] I have Heard Mr.S.Bhattacharjee, learned counsel appearing for the petitioner as well as Mr.A.K. Deb, learned counsel appearing for the respondent insurance company.

[7] None of the parties has challenged the award with regard to the amount of compensation awarded by the tribunal.

[8] As noted, appellant owner has assailed the impugned award of the Tribunal only on the ground that in terms of the insurance policy, liability to pay the compensation lies with the insurer. Mr.S.Bhattacharjee, learned counsel of the appellant has submitted that the appellant does not oppose the award on any other ground save and except the liability of paying the compensation.

[9] Mr.A.K.Deb, learned counsel appearing for the respondent insurer agrees that the insurance policy of the offending vehicle was in force on the date of accident.

[10] In view of the submissions of the parties, this court will not go into any other issue save and except the question of liability of paying the compensation awarded by the tribunal.

[11] In so far as the question of liability of making payment of compensation is concerned, it appears from the record that the claimant made the insurance company a party to the original claim petition as respondent No.3 along with the owner and driver of the offending vehicle who were impleaded as respondent No.1 & 2 respectively. Respondent no.1 and 2 submitted a joint written statement in which they pleaded that their vehicle was insured with National Insurance Company vide policy No.203001/31/14/6300004559 which was in force from 15/11/2014 to 14/11/2015 and since the occurrence took place on 16/12/2014, the said insurance policy was in force on the date of accident to indemnify the liability of the owner.

[12] The insurer also appeared at the tribunal and submitted separate written statement wherein it was pleaded by the insurer that the insurance policy was subject to certain terms and conditions and exceptions. Therefore, liability of the insurance company would not arise if any of the policy terms was violated. Contention of the insurance company in paragraph (7) of its written statement was as follows:

"(7)That the opposite party Insurance Company issued Insurance Policy subject to certain terms and conditions and exceptions. Therefore, if it is found that owner/ O.P. having been issued an Insurance Policy has violated any of the terms and conditions of the policy in that case the O.P. Insurance Company is not liable to indemnify any loss sustained by the Policy holder. And in that event the Insurance Company is not liable to indemnify the act, liabilities of the Policy holder "

[13] Since said policy could not be produced at the trial by owner of the vehicle, the tribunal after awarding compensation to the clamant directed the owner of the vehicle to pay the entire amount of compensation awarded by the tribunal.

[14] The appellant owner has now submitted the said insurance policy in this court along with the memo of appeal which demonstrates that the offending vehicle bearing registration No.TR-03-C-1908 owned by the appellant was insured with the National Insurance Company Ltd. [respondent No.3] vide policy No.203001/31/14/ 6300004559 which was in force from 15/11/2014 to 14/11/2015.

[15] Therefore, there is no doubt that on the date of occurrence, the owner had a valid insurance policy of his vehicle and in terms of the said policy the insurer is liable to pay the compensation awarded by the tribunal. No violation of policy conditions has been alleged by the insurer. Since the insurer was made a party to the claim petition at the tribunal by the original claimant and the policy no. was also quoted by the owner in his written statement, the tribunal should have directed the respondent insurance company to produce copy of the said insurance policy from their official records or make a statement with regard to the veracity of statement of the owner made in this regard before fixing the liability to the owner. Insurance company cannot be allowed to shirk off its responsibility by merely saying that owner could not produce the policy document at the tribunal.

[16] In view of the discussions and observations made above, award dated 17/07/2018 of the MAC Tribunal (MACT-1) Gomati Judicial District, Udaipur is modified to the extent that the compensation awarded by the Tribunal shall be paid to the claimant by National Insurance Company Ltd.[Respondent No.3] who is the insurer of the offending vehicle. The amount of compensation will carry interest at the rate sanctioned by the Tribunal from the date of filing of the claim petition at the Tribunal till payment.

[17] In terms of the above, the present appeal is disposed of.

Pending application(s), if any, also stands disposed of.