In the present case, the owner has neither filed
written statement nor has participated in the proceedings nor
has adduced any evidence in support of a plea that the premium
was paid on 23.01.2008 in response to which the policy was
issued on 28.01.2008. The owner has failed to discharge his
burden and hence the Insurance Company cannot be held jointly
and severally liable to pay the compensation along with the
committed an error in holding that the Insurance Company is
liable for payment of compensation. The award to that extent
cannot, therefore, be sustained.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
FIRST APPEAL NO. 1334 OF 2013
Bajaj Allianz General Insurance
Co. Ltd.,
Vs
Smt. Pushpa @ Bebi Bholanath
CORAM : R.K. DESHPANDE, J.
SEPTEMBER 10, 2014.
Citation;2015(2) ALLMR895
This appeal preferred by the Insurance Company
challenges the Award dated 12.07.2012 passed by the Motor
Accident Claims Tribunal, Wardha, in M.A.C.P
. No. 48 of 2008,
only to the extent it holds the Insurance Company liable to pay
the compensation and the interest along with the owner and
Driver of the vehicle. It was a specific stand taken by the
Insurance Company that the accident in question occurred on
24.01.2008 whereas the offending vehicle i.e. Auto rickshaw
time on 28.01.2008, which was valid up to 28.01.2009 and as
such the vehicle in question was not insured on the date of
accident.
bearing registration No. MH32/TC47 was insured for the first
2.
The Tribunal has recorded a specific finding that the
cover note at Exh. 68 was issued on 23.01.2008 from the book at
Exh. 83, which was issued subsequently on 28.03.2008 and
hence it cannot be relied upon. It is the finding recorded that
the cover note is totally manipulated and a policy at Exh. 81
issued on 28.01.2008 for the first time from 29.01.2008 valid
The Tribunal, however, proceeds to reject the defence
3.
upto 28.01.2009.
raised by the Insurance Company solely on the ground that no
evidence is adduced by the Insurance Company to show that the
premium was in fact received by the Insurance Company on
28.01.2008 and not on 23.01.2008. The inference is that,
though the premium was paid on 23.01.2008, the policy was
issued on 28.01.2008 and hence the Insurance Company is held
liable.
4.
The point for determination in the present case on
the basis of the aforesaid factual position is as under :
5.
“Whether the burden of proof to establish that the
policy was issued on 28.01.2008 in response to
the premium paid on 23.01.2008, was on the
appellant – Insurance Company or on the owner
of the offending vehicle ?”
Sections 102 and 103 of the Indian Evidence Act,
reproduced below:
1872, are attracted in the present case and the same are
103. Burden of proof as to particular fact.
The burden of proof as to any particular fact lies
on that person who wishes the Court to believe in
its existence, unless it is provided by any law that
the proof of that fact shall lie on any particular
person.”
“102. On whom burden of proof lies. – The
burden of proof in a suit or proceeding lies on
that person who would fail if no evidence at all
were given on either side.
In terms of Section 102, the burden of proof in a suit
or proceeding lies on that person who would fail if no evidence
at all were given on either side. In terms of Section 103, the
burden of proof as to any particular fact lies on that person who
wishes the Court to believe in its existence, unless it is provided
by any law that the proof of that fact shall lie on any particular
In the present case, the Tribunal has recorded a
6.
person.
finding that Exh. 68, which is a cover note dated 23.01.2008, is a
manipulated document and it has to be ignored. The appellant –
Insurance Company has produced on record the policy at Exh. 81
issued on 28.01.2008 valid for the period from 29.01.2008 to
28.01.2009 and has discharged its burden to prove that the
offending vehicle was not insured on the date of accident i.e. on
24.01.2008. It is the owner of the vehicle who would fail, if no
evidence is led by the either side to establish that the premium
was in fact paid on 23.01.2008 in response to which the policy
was issued on 28.01.2008 and therefore, he is not at fault. It is
the owner of the vehicle who wanted the Court to believe the
existence of the such facts. If he succeeds in proving such facts,
then the liability of the Insurance Company would be attracted,
in the absence of rebuttal.
7.
In the present case, the owner has neither filed
written statement nor has participated in the proceedings nor
has adduced any evidence in support of a plea that the premium
was paid on 23.01.2008 in response to which the policy was
issued on 28.01.2008. The owner has failed to discharge his
burden and hence the Insurance Company cannot be held jointly
and severally liable to pay the compensation along with the
committed an error in holding that the Insurance Company is
liable for payment of compensation. The award to that extent
cannot, therefore, be sustained.
owner and Driver of the vehicle. The Tribunal has, therefore,
8.
In the result, the First Appeal is allowed. The Award
dated 12.07.2012 passed by the Motor Accident Claims Tribunal,
Wardha, in M.A.C.P
. No. 48 of 2008, only to the extent it holds
the appellant – Insurance Company liable to pay compensation is
quashed and set aside. The Insurance Company has deposited
the entire decretal amount in this Court, hence, the appellant –
Insurance Company is permitted to withdraw the same along
with interest, if any, accrued thereon. No order as to costs.
JUDGE
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