It is evident from the facts and undisputed that the accident occurred on 09.06.2012, as a result of which Jepu Khan succumbed to injuries whereas, for insurance of the vehicle in question. However, the case set up by the appellant company is that the insurance policy (Ex. 11) produced by the owner is fake and correct copy of insurance policy was tendered in evidence on behalf of appellant company as Ex. A/1 being Policy No. 2313200275427800000 according to which the vehicle was insured for the period 12.06.2012 to 11.06.2013 whereas, the accident took place on 09.06.2012. Thus, the burden of proving the fact that the insurance policy produced by the owner is forged and fabricated and the vehicle in question was in fact insured for the period 12.06.2012 to 11.06.2013 was upon the appellant insurance company. The appellant insurance company in support of contention produced NAW/1 Pankaj Sharma in evidence who stated that the policy produced by the owner is forged and in this regard a complaint was lodged before the Superintendent of Police, Jaisalmer. However, the said witness has categorically stated that complaint in this regard was not filed for four years from 15.09.2012 to 12.04.2016. Further the said witness has also denied having any knowledge with regard to the agent who issued the said policy. The said witness has also denied having any knowledge with regard to the fact whether the amount against the premium was received in cheque or cash and also failed to produce any record with regard to the receipt of premium by the company. {Para 11}
12. It is pertinent to note that in the matter in hand, the insurance company has admitted coverage of vehicle through insurance policy Ex. A/1 but denied the period of coverage with regard to which claim petition was filed under insurance policy Ex. A/11 filed by the owner/claimant.
13. The accident was caused on 09.06.2012 and the claim petition was pending before the Tribunal from year 2012 but the insurance company did not initiate any proceedings against the owner for producing forged and fabricated policy and it is only in the year 2016 that a complaint was sent to the Superintendent of Police, Jaisaler. The appellant insurance company could have produced the record containing the receipt of premium, proposal form, name of agent and code etc to prove that the policy produced by the company as Exhibit A/1 is the genuine one and was issued for the period 12.06.2012 to 11.06.2013. However, as rightly noticed by the learned Judge, MACT Cases, the appellant insurance company has failed to prove the same.
14. As far as the case of Sobina Iakai (Supra) relied upon by the learned counsel for the appellant insurance company, the same relates to the date and time from which the policy would be effective. Hon'ble Supreme Court in the said case has held that when the specific time and date is mentioned, then the insurance policy becomes effective from that point of time and not from an earlier point of time. Herein this case, the respondent had produced the policy issued by the appellant insurance company which was very much effective on the date of accident and the appellant insurance company has failed to prove that the said insurance policy was forged or fabricated and therefore, the case relied upon by the counsel for the appellant is not applicable in the facts and circumstances of the present case.
IN THE HIGH COURT OF RAJASTHAN AT JODHPUR
S.B. Civil Misc. Appeal No. 2623/2016
Decided On: 03.02.2017
HDFC ERGO General Insurance Company Ltd. Vs. Nimaji and Ors.
Hon'ble Judges/Coram:
Goverdhan Bardhar, J.
Citation: MANU/RH/0086/2017,2017 ACJ 2830 Raj
1. Instant appeal has been filed by the appellant Insurance company under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 06.09.2016 passed by learned Judge, MACT-I, Jodhpur in Claim Case No. 749/2012 whereby, the learned Judge, MACT Cases has awarded compensation in the sum of Rs. 6,94,272/- to the claimant respondents.
2. Succinctly stated, facts of the case are that a claim petition was filed by the respondent No. 1 & 2 before the Motor Accident Claims Tribunal, Jodhpur, stating therein that on 09.06.2012, when the deceased Jepu Khan was coming home from Ramzan ki Dhani, at that time around 1:15 PM one Jeep bearing No. RJ 19-TA-0433 being driven rash and negligently by the driver hit the Jepu Khan and consequently due to grievous injuries, he died on the spot. As per claim petition, the deceased was 19 years of age and was earning Rs. 9000/- per month, therefore, it was prayed in the claim petition that a sum of Rs. 48,75,000/- may be awarded as compensation in favour of the claimants.
3. The non-applicant No. 1 & 2, the owner/insured and driver of the vehicle filed reply to the claim petition and stated that the accident was caused due to negligence of the deceased and since the vehicle was insured with the insurance company, the liability to pay compensation is upon the insurance company. The appellant insurance company filed its reply and raised preliminary objection that Vehicle No. RJ-19 TA-0433 was not insured with the insurance company on the date of accident as the policy No. 23132002275427800000 was valid from 12.06.2012 to 11.06.2013 whereas, the accident occurred on 09.06.2012 i.e. prior to the insurance and therefore, the insurance company is not liable to make payment of compensation.
4. On the basis of pleadings, the learned Judge, MACT Cases framed following issues for consideration:-
"1. Whether on 09.06.2012 at 1:15 PM on the road from Falsund to Bhurjgarh near Ladhu Khan ki Dhani, the non applicant No. 1 Driver of vehicle No. RJ 10-TA-0433 while driving the vehicle in rash and negligent manner caused the accident due to which Jepu Khan succumbed to injuries?
2. Whether non-applicants is absolved from liability to pay compensation to the claimants?
4. Whether the claimants are entitled to get compensation as claimed in the claim petition, if yes, from who and how much and in what proportion the claimants shall be entitled to receive the amount of compensation?
5. In support of claim petition, the claimants produced Latif Khan and Ladhe Khan and exhibited 12 documents.
6. Learned Judge, MACT Cases after taking into consideration the entire facts of the case decided issue No. 1 and 2 in favour of the claimants and taking the monthly income of the deceased as Rs. 3822/- awarded compensation in the sum of Rs. 6,94,272/- to the claimants and the Insurance company, owner and driver were held to be liable jointly and severally.
7. In this appeal, the Insurance company has challenged the award mainly on the ground that the claimants produced the copy of insurance policy as Exhibit 11 wherein the period of insurance in respect of Jeep No. RJ-19 TA -0433 has been shown as 25.05.2012 to 24.05.2013 whereas the said vehicle was insured with the appellant company for the period from 12.06.2012 to 11.06.2013 and thus the vehicle was not insured with the appellant company on the date of incident i.e. 09.06.2012. It is submitted on behalf of the appellant company that the insurance policy (Ex. 11) produced by the claimants is fake and correct copy of insurance policy was tendered in evidence on behalf of appellant company as Ex. A/1 according to which the vehicle was insured for the period 12.06.2012 to 11.06.2013.
8. Learned counsel for the appellant argued that learned Judge disbelieved the evidence produced on behalf of appellant company and relied upon the policy produced on behalf of claimants. Learned counsel further argued that the insurance policy is generated through computer and there are no chances of manipulation whereas, from the policy produced by the claimants it appears that the same has been manipulated in order to bring the date of accident within insurance coverage. Learned counsel for the appellant company also argued that the owner of the vehicle was represented before the Tribunal but he failed to appear in the witness box or to produce the original of said insurance policy and therefore, adverse inference ought to have been drawn against the owner. It is submitted that since on the date of accident there was no policy in existence in respect of vehicle in question, therefore, appellant insurance company is not liable to pay compensation. Learned counsel for the appellant placed reliance on decision of Hon'ble Supreme Court in the case of 'National Insurance Co. Ltd. Vs. Sobina Iakai & Ors. reported in MANU/SC/2707/2007 : (2007) 7 SCC 786.
9. Per contra, learned counsel for the respondent claimants submits that the appellant insurance company in order to escape from the liability of payment of compensation has generated a false and fabricated policy which has been produced as Exhibit A/1 showing that the vehicle was insured for the period 25.05.2012 to 24.05.2013. It is further argued that the complaint with regard to the policy submitted by the claimant to be false and forged was made in the year 2016. It is vehemently argued that the learned Tribunal has rightly observed that the insurance company has failed to prove that the policy produced by the claimants is forged or fabricated as neither the insurance company conducted any departmental investigation nor it initiated any civil proceedings against the owner.
10. Heard learned counsel for the parties. I have gone through the record and perused the impugned judgment/award passed by the learned Judge, MACT cases, Jodhpur.
11. It is evident from the facts and undisputed that the accident occurred on 09.06.2012, as a result of which Jepu Khan succumbed to injuries whereas, for insurance of the vehicle in question. However, the case set up by the appellant company is that the insurance policy (Ex. 11) produced by the owner is fake and correct copy of insurance policy was tendered in evidence on behalf of appellant company as Ex. A/1 being Policy No. 2313200275427800000 according to which the vehicle was insured for the period 12.06.2012 to 11.06.2013 whereas, the accident took place on 09.06.2012. Thus, the burden of proving the fact that the insurance policy produced by the owner is forged and fabricated and the vehicle in question was in fact insured for the period 12.06.2012 to 11.06.2013 was upon the appellant insurance company. The appellant insurance company in support of contention produced NAW/1 Pankaj Sharma in evidence who stated that the policy produced by the owner is forged and in this regard a complaint was lodged before the Superintendent of Police, Jaisalmer. However, the said witness has categorically stated that complaint in this regard was not filed for four years from 15.09.2012 to 12.04.2016. Further the said witness has also denied having any knowledge with regard to the agent who issued the said policy. The said witness has also denied having any knowledge with regard to the fact whether the amount against the premium was received in cheque or cash and also failed to produce any record with regard to the receipt of premium by the company.
12. It is pertinent to note that in the matter in hand, the insurance company has admitted coverage of vehicle through insurance policy Ex. A/1 but denied the period of coverage with regard to which claim petition was filed under insurance policy Ex. A/11 filed by the owner/claimant.
13. The accident was caused on 09.06.2012 and the claim petition was pending before the Tribunal from year 2012 but the insurance company did not initiate any proceedings against the owner for producing forged and fabricated policy and it is only in the year 2016 that a complaint was sent to the Superintendent of Police, Jaisaler. The appellant insurance company could have produced the record containing the receipt of premium, proposal form, name of agent and code etc to prove that the policy produced by the company as Exhibit A/1 is the genuine one and was issued for the period 12.06.2012 to 11.06.2013. However, as rightly noticed by the learned Judge, MACT Cases, the appellant insurance company has failed to prove the same.
14. As far as the case of Sobina Iakai (Supra) relied upon by the learned counsel for the appellant insurance company, the same relates to the date and time from which the policy would be effective. Hon'ble Supreme Court in the said case has held that when the specific time and date is mentioned, then the insurance policy becomes effective from that point of time and not from an earlier point of time. Herein this case, the respondent had produced the policy issued by the appellant insurance company which was very much effective on the date of accident and the appellant insurance company has failed to prove that the said insurance policy was forged or fabricated and therefore, the case relied upon by the counsel for the appellant is not applicable in the facts and circumstances of the present case.
15. The result of the above discussion is that the finding and conclusion recorded by the learned Judge, MACT Cases for awarding compensation while holding the Insurance Company liable jointly and severally is based on proper appreciation of evidence on record. The appellant in view of the subsisting and valid insurance contract, is under obligation to indemnify the insured. Consequently, the appeal is hereby dismissed.
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