The Oriental Insurance Company Limited vs Peer Sab

Aravind Kumar, J.—Insurer is in appeal questioning the correctness and legality of the judgment and award passed by MACT., Shimoga dated 03.10.2007 in M.V.C. No. 693/2006, where under claim petition filed by the father and mother of the deceased has been allowed in part and a compensation of Rs. 1,50,000/- has been awarded with interest at 6% per annum from the date of petition till the date of payment or deposit, whichever is earlier.

I have heard the arguments of Sri A. Ravishankar, learned counsel appearing for the appellant-Insurer, Sri Lakshmeesh Rao, learned counsel appearing for respondents 1 (a) and 2 and Sri G. Venkatachala, learned counsel appearing for respondent No. 3. Perused the records secured from the Tribunal. The only issue that arises for consideration in this appeal is:

Whether the appellant-insurer should be absolved of its liability or not?

It is the contention of Mr. A. Ravishankar that complaint filed by the father of the deceased at an undisputed point of time which was also relied upon by claimants before the Tribunal would indicate the manner in which accident in question occurred and it explains as to how complainant''s son was got crushed by the offending vehicle which was on account of deceased sitting in the offending vehicle and as such he accidentally, fell down and was crushed in the rotary wheel fixed to the Tractor resulting in his instantaneous death. He contends that seating capacity of offending vehicle being NIL namely except driver, no other person was entitled to travel and as such insured cannot be held liable to indemnify the claim. As such, he seeks for allowing of the appeal and prays for setting aside the judgment and award in question and in support of his submission, he has relied upon the following judgments:

Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Others,

National Insurance Co. Ltd. and Others Vs. Govindamma and Others,

United India Insurance Co. Ltd. Vs. Hussain Sab and Others,

Per contra, Sri Lakshmeesh Rao, learned counsel appearing for the claimants would support the judgment and award in question and contends that Tribunal has rightly fastened the liability on the insured to be indemnified by the insurer on the ground that there was an existing policy, which was in force and vogue as on the date of the accident and as such, the insurer cannot stave off it liability to answer 3rd party claims. Hence, he prays for dismissal of the appeal.

Perusal of the records would indicate that the insurer did not raise a specific plea before the Tribunal contending as to why insurer need not indemnify the claimants on account of negligence exhibited by the deceased himself or in other words, it was not contended by the insurer that deceased was sitting on the offending vehicle and as such, he fell down due to the impact he was crushed. On the other hand, it has been contended by the insurer that there was no rash and negligent driving on the part of the driver of the offending vehicle apart from other contentions raised in the written statement. Official witness was examined on behalf of the insurer as DW. 1. In his examination-in-chief dated 24.08.2007, he has stated that deceased having not observed that the driver of the offending vehicle was reversing the said Tractor, was crushed under the Tractor. It was this plea, which was raised by the insurer before the Tribunal both in the pleadings as well as in the evidence. However, in the present appeal, it has been now contended that accident occurred due to the fact that deceased was sitting in the offending vehicle and as such, he fell down and got crushed. This is a new plea, which has been raised in the appeal. Division Bench of this Court in the case of Ramakrishna Reddy Vs. The Manager, Purchase, Hindustan Machine Tools Limited and Another, has held that written statement should contain all available contentions or pleas and it should not be vague with regard to pleas. It is further held that new pleas cannot be permitted to be raised in an appeal as an opportunity of countering such a case is lost to the claimant. It has been held by this Court as under:-

"19. We may also at this stage refer to the pernicious habit of some branches of insurance companies in filing stereotyped written statements denying all and everything. They routinely deny the insurance, then alternatively plead that even if there was an insurance, there was a breach of terms of the policy, that driver did not have a valid driving licence, and lastly there was no negligence on the part of driver of the insured vehicle. They do not bother to verify whether the insurance policy covered the risk or not and whether driver had a licence or not. We recognize that insurers are sometimes handicapped for want of full information, while giving instructions to their Counsel, and therefore the objections may be general in nature. We are also conscious that we cannot frown upon a party taking all permissible defences. But, applications for motor accident claims are not to be treated by insurers as normal private adversary litigation, where technical contentions can abound in pleadings and the sole intention is winning the lis. Under the policies of Insurance, the insurers discharge statutory obligations towards third parties. They should do so keeping in view the object and spirit of the Act, and the position of hapless victims of motor accidents. Insurers should balance their concern to safeguard its financial interest, with their obligations as instruments of social justice under the Motor Vehicles Act.

19.1. The claimants are not litigants by choice, but are constrained to approach the Tribunal, because of the death of the breadwinner or injury to self, and because the owner and insurer of the vehicle involved, fail to pay the compensation. The insurer should bear in mind that the claimants are also handicapped in obtaining particulars of the insurance policy held by owner or driving licence held by the driver of the vehicle, and they solely depend upon the police for these particulars. The insurer should therefore verify whether there was any Insurance policy or not, whether the insured was covered by insurance policy in regard to the claim or not, and whether the driver had a licence or not before filing its statement of objections and narrow down the area of controversy. If the insurer were to file ''play it safe'' written statements, without verifying these aspects and mechanically denying all petition averments, the trial gets delayed and the claimants are put to misery and unjustly kept away from the direly needed compensation. It is time that insurers get rid of "Deny Everything and Await the Award Syndrome" and become responsible and responsive opponents in motor accident claims. We make it clear that the above observations are intended only for those officers of Insurance companies who refuse to recognize their statutory obligations to third parties, under the insurance policies issued to the insured."

In that view of the matter, the contention of Sri Ravishankar cannot be accepted.

Yet another fact, which requires to be noticed is that plea, which is available to the insurer to stave off its claim is under Section 149(2)(a)(ii) of the Motor Vehicles Act. The plea now raised in this appeal namely, plea of accident in question having occurred due to the negligence of the deceased, cannot be permitted to be raised at this stage.

Even otherwise, when such a plea has been raised by the insurer to get itself absolved from indemnifying the claimant, it goes without saying that burden is cast on the insurer to prove the same. No exercise has been undertaken in this regard by the insurer. It has utterly failed to prove that deceased sustained injuries, on account of his travelling in the offending vehicle. Last but not the least, it requires to be noticed that alleged complaint, which has been relied upon by the insurer which undoubtedly was filed by the father of the deceased would indicate that what he has stated before the Police is on the basis of the information received by him from one Mr. Ismail and there is no dispute to the fact that the complainant, namely, the father of the deceased i.e., the first claimant was not present at the time of the accident.. Hence, his statement is a hearsay statement. For this reason also, it cannot be held that the accident in question occurred in the manner sought to be put forward by the present appellant-Insurer.

The learned counsel for the appellant has relied upon the judgments referred to herein supra. In so far as Premlata Shukla''s case referred to supra relied upon by the learned counsel for the appellant, there cannot be any dispute with regard to proposition laid down thereunder. A document, which has been relied upon cannot be read disjunctively, but it has to be read as a whole. In the instant case, for reasons best known, the complaint that was given by the father of the deceased was not produced by the insurer nor the claimants themselves. It has not been marked as an exhibit. Certified copy of the FIR., which has been marked as Ex. P1 would indicate that deceased expired due to the injuries sustained in the accident that occurred on 07.05.2006 due to the rash and negligent driving of the offending vehicle by its driver. Even otherwise, the photocopy of said complaint which is available in the Tribunal records, has been examined by me and perusal of the same would indicate as already noticed hereinabove that complainant, who is the father of the deceased has stated as to how the accident in question occurred, which was based on the information given by one Mr. Ismail. It is a hearsay evidence. As such, much credence cannot be given to the said statement. Insurer has also not examined said Mr. Ismail. That apart, two independent witnesses have been examined by claimants to prove as to how accident in question had occurred. Out of these two (2), evidence of PW. 2 can be discarded for the single reason, he has admitted in his cross-examination that accident occurred even prior to his arrival at the spot. However, PW. 3 has stated that he was working in the adjacent agricultural farm and he had seen the manner and mode in which the accident had occurred. As such, his evidence deserves to be accepted and he has also stated that he has seen the accident which is corroborating the statement made in the claim statement as well as the evidence of PW. 1. Hence, the principles laid down in Premlata Shukla''s case would not assist the appellant-insurer in the present case. The other two judgments relied upon by Sri Ravishankar is in the lines of dicta laid down in Premlata Shukla''s case and as such, I am of the considered view that they would also not come to the rescue of the appellant-insurer. Hence, the following:

ORDER

(i) Appeal is hereby dismissed.

(ii) Judgment and award passed by MACT., Shimoga, in M.V.C. No. 693/2006 dated 03.10.2007 is hereby affirmed.

(iii) Amount in deposit in this appeal is ordered to be transmitted to the jurisdictional Tribunal by Registry of this Court forthwith for being disbursed by Tribunal in accordance with its judgment and award.

(iv) No order as to cost.