Mritunjai Kumar Jha, IPS, S.P.Purnea (retired) v. Harpal Jath

Patna High Court MA No.298 of 2002 (24) dt.09-12-2013 2 with interest has required the owner of the vehicle to discharge the obligation inter alia on grounds of a suspicion being created as regarding the insurance coverage of the offending vehicle. The claimants are before this Court being aggrieved by that part of the direction of the tribunal by which the owner respondent no. 2 has been saddled with the responsibility and not the insurance company. Facts of the case briefly stated leading to the claim application is that the wife of the appellant no. 1 who happens to be the mother of the other appellants was travelling in a Gypsy bearing registration no. B.E.K. 2918 from Patna to Purnea when the said Gypsy was dashed against by a truck bearing registration no. H.R.T. 6285 near Bihpur More within Bihpur Police Station of the District of Bhagalpur on the National Highway No. 31. A police case was registered giving rise to Bihpur P.S. Case No. 108 of 1989 against the driver of the offending vehicle and charge sheet submitted. The claimants i.e. the husband and the children of the deceased filed a claim case giving rise to Claim Case No. 1 of

1990. Initially the claim case was directed towards the driver and the owner of the offending vehicle, namely, Harpal Jath and Pathan Singh respectively but subsequently the tribunal allowed Patna High Court MA No.298 of 2002 (24) dt.09-12-2013 3 the prayer of the claimants for addition of the United India Insurance Company, Hisar and Divisional Manager at Bhagalpur as opposite party nos. 3 and 4 respectively vide order passed on

09.01.1997 which was carried out by the claimants on 28.08.1997. It was case of the claimants that the vehicle was covered under the cover note bearing no. 260220 by the United India Insurance Company Limited and which was valid from 01.11.1988 to

31.10.1989 and since the accident occurred on 11.07.1989, hence it was within the coverage period. A written statement was filed by the respondent no. 4 the Divisional Manager contesting the claim. It was specifically stated by the Divisional Manager at paragraph-13 of the written statement correspondence made with Hisar Office, it was discovered that the cover note bearing no. 260220 dated 26.10.1988 did not pertain to Hisar office. The Insurance Company besides examining the Divisional Manager as opposite witness no. 1, also led five exhibits marked as exhibit-A to exhibit-E. Exhibit-A is a letter dated 31.05.2001 issued by Hisar office addressed to the Divisional Office at Bhagalpur in which the cover note bearing no. 260220 appertaining to vehicle no. H.R.T. 6285 which is the number of the offending truck of which Pathan Singh was the owner, has been accepted. A cloud, however, was sought to be created in the letter by stating that Patna High Court MA No.298 of 2002 (24) dt.09-12-2013 4 though the signature is of the Development Officer Ravindra Kumar who has also owned the same but it is filled up in a different hand writing. Exhibit-B is the investigation report of the Investigator Jai Singh and which candidly mentions the acceptance of Pathan Singh of owning the vehicle and having got the same released on ‘Supardari’ but however, it was stated by Pathan Singh that he has since sold the truck. Exhibit-C is a letter written by Jai Singh, Advocate and also the Investigator addressed to the licencing authority seeking verification as regarding the statement of Pathan Singh and which has been found to be true. Exhibit-D is the letter of the Development Officer Ravindra Kumar who admits to the signature on the cover note bearing no. 260220 dated 26.10.1988 but states that he has not filled up the same. Exhibit-E is the premium register and as against the date

26.10.1988, the receipt no. 6530 is pertaining to receipt of premium of Rs. 2767/- from the account of one Pathan Singh. The tribunal on the basis of the rival pleadings and the evidence led by the parties considered the matter and on the sole testimony of the Divisional Manager Sanjay Kumar Roy that the cover note related to Ratan Singh and not Pathan Singh and that Patna High Court MA No.298 of 2002 (24) dt.09-12-2013 5 the cover note was never issued from Hisar Office, the same was treated to be a forged document and having held as such the tribunal even while allowing the claim case has shifted the responsibility of payment of compensation on the owner of the offending vehicle who never chose to appear before the tribunal despite valid service. It is this part of the direction which has aggrieved the claimants to prefer this appeal. I have heard Mr. Ajay Kumar, learned counsel appearing on behalf of the claimants and Mr. Syed Qaiaser Hasan, learned counsel appearing for the respondent nos. 3 and 4 the United India Insurance Company Limited. Despite valid service, the owner and the driver of the offending vehicle have yet not chosen to appear. Although in normal circumstance where the claim has been allowed by the tribunal, the claimants cannot be called a person aggrieved but considering the statutory provisions as also the conduct of the owner and the driver of the offending vehicle who never chose to appear before the tribunal despite valid service coupled with the statutory obligation cast upon the insurance company under Section 149 of the Act, it requires examination whether the claimants have made out a case for indulgence. Mr. Ajay Kumar, learned counsel for the claimants has submitted that since the claimants had no knowledge of the insurance policy, hence the case was directed against the driver Patna High Court MA No.298 of 2002 (24) dt.09-12-2013 6 and owner of the offending truck bearing registration no. H.R.T.

6285. It has been fairly submitted by him that it is only upon completion of the police investigation that the claimants became aware that the offending vehicle had a valid insurance cover and also gathered information about the cover note bearing no. 260220 dated 26.10.1988. It is upon gathering such information that they made an application for addition of the said insurance as a party to the claim case which was allowed on 09.01.1997 and a formal addition took place on 28.08.1997. Upon notice issued, a written statement was filed by the Divisional Manager at Bhagalpur contesting the claim and disowning the insurance of the cover note. Although the cover note does not seem to be a part of the lower court records but has been enclosed as Annexure-1 of the memo of appeal and this Court in the interest of justice and taking into consideration that the foundation of the grievance rests on the said document, would not shirk from looking into the contents. Learned counsel with reference to the cover note has stated that it is a running policy as is manifest from the entries which shows that the truck was under a coverage since 16.08.1987 and which was renewed from 01.11.1988 and was valid until

31.10.1989 meaning thereby the date of accident was covered. The cover note is in the name of Pathan Singh and since the truck Patna High Court MA No.298 of 2002 (24) dt.09-12-2013 7 was hypothecated with Canara Bank, hence their name also finds mention against the name of the insured. Learned counsel with reference to Exhibit-A which is the letter of Hisar Office responding to the query by Bhagalpur Office and is dated

31.05.2001, has submitted that the issuance of the cover note is not in dispute and even the signature of the Development Officer Ravindra Kumar is admitted. It is submitted that an unwarranted bogie is sought to be created on the basis of the fill up to the forms. It is with reference to Exhibit-D which is the letter of Ravindra Kumar dated 31.05.2001 submitted that the said Development Officer has admitted to his signature. Learned counsel with reference to the premium register which was led as Exhibit-E has submitted that against receipt no. 6530, a payment of Rs. 2767 has been received and which figure fully tallies with the amount on the cover note which is Annexure-1. Mr. Kumar very fairly submitted that since name of the insured has been inscribed in such a manner so as to create a confusion, the insurance company taking cue therefrom has created a ghost of Ratan Singh without leading any document relatable thereto. He submits that despite these evidence on record, the tribunal has completely misdirected itself to reject the insurance cover and to direct the insured to make the payment. With reference to the judgment of the Supreme Court reported in Patna High Court MA No.298 of 2002 (24) dt.09-12-2013 8 (2013) 7 SCC 62 (S. Iyyapan vs. United India Insurance Company Limited and Another) and a Division Bench judgment of the Jharkhand High Court reported in 2007 ACJ 2567 (Annapurna Choubey & Anr. vs. Abdul Khalique & Ors.), it was sought to be canvassed that whereas it is the liability of the insurer to make payment of the compensation where the insurance is established, a mere non-cooperation by the insured in a proceeding cannot defeat the contentions of the claimants. The argument of Mr. Kumar has been contested by Mr. Hasan relying upon the deposition of the Divisional Manager and the findings of the tribunal in the judgment impugned more particularly paragraph-11 thereof. It is submitted that since the documents on record admittedly created a cloud as regarding the veracity of the cover note, no fault lies in the conclusion drawn by the tribunal and even otherwise the claim having been allowed, the claimants cannot be a party aggrieved. Having heard learned counsel for the parties and having perused the materials on record, this Court is of the opinion that the issues which require determination is: Whether there were sufficient materials demonstrating the coverage of the offending truck and/or whether there were cloud as to the coverage requiring the owner to make payment thereof or to establish the same and/or whether the suspicion was of such Patna High Court MA No.298 of 2002 (24) dt.09-12-2013 9 nature that in the circumstances, the order impugned was the only order which could have been passed. The accident took place on 11.07.1989 and the claim case followed thereafter on 06.01.1990 and the addition of the insurance company took place even thereafter and in fact seven years later in the year 1997 when the prayer of the claimants for their addition was allowed. As has been fairly admitted by learned counsel for the claimants, the knowledge regarding the coverage of the offending vehicle by the respondent insurance company was gathered by them quite belatedly and which led to the delay in addition of the parties. Initially a written statement was filed by the Divisional Manager straightaway disowning the issuance of such cover note in paragraph-13 of the written statement but the said statement stands falsified by the very exhibits which was led on behalf of the insurance company and marked as Exhibit-A to Exhibit-E. The letter of Hisar Branch Office led as Exhibit-A addressed to Bhagalpur Office in fact is itself sufficient to render the written statement filed by the Divisional Manager as an attempt to mislead the Court. Whereas it was stand of the Divisional Manager that the cover note no. 260220 was never issued from Hisar Office, the same stands contradicted by Hisar Office in their letter dated 31.05.2001 which is marked Exhibit-A and admits to the issuance of the said cover note in name of Patna High Court MA No.298 of 2002 (24) dt.09-12-2013 10 Pathan Singh and the fact that the signature thereon is of the Development Officer Ravindra Kumar. The cover note was valid from 01.11.1988 to 31.08.1989 and the accident having taken place on 11.07.1989, the vehicle was covered on the date of the accident. The premium register led as Exhibit-E also confirms this position but the insurance company have tried to wriggle out therefrom by creating a ghost of Ratan Singh when a glance thereof makes it clear that it is in the name of Pathan Singh and even the amount mentioned there fully tallies with the cover note. Moreover, no document was led by the insurance company in support of their contention that the said premium was paid by Ratan Singh. In fact the ghost of Ratan Singh has been created subsequently by the insurance company merely to wriggle out of their liability and the learned tribunal has got swayed by the said piece of deposition. It does not require any further discussion to hold that the offending vehicle was validly insured and premium has been paid in respect thereof and the insurance was valid on the date of accident. That being the position, the opinion expressed by the tribunal to shift the responsibility of payment of compensation from the insurance company to the owner of the offending vehicle cannot be upheld and to that extent the judgment and award stands modified to read that the liability for making payment of the Patna High Court MA No.298 of 2002 (24) dt.09-12-2013 11 compensation amount would be of the insurance company and who shall be under a duty to discharge the liability in terms of the judgment and award impugned within three months from the date of receipt/production of a copy of this order. The appeal is allowed. Let the lower court records received in connection with Claim Case No. 1 of 1990 be returned to the court of 3rd Additional District and Sessions Judge-cum-Motor Vehicles Accident Claim Tribunal, Bhagalpur forthwith. S.Sb/- (Jyoti Saran, J)