High Court · 2012

No.03/1994. 3. Mr. S. Dutta, learned counsel appearing for the appellant, at th e outset had drawn attention of this Court to the judgment and order dated 11.11 .2002 as passed in W.C. 1935 of 2011 whereby this Court has observed as under: (cid:28)Vide the impugned order dated 25.09.2000 the Tribunal granted compensation at R s.1,15,000/- to be paid by the petitioner Oriental Insurance Company Ltd. The ca se of the petitioner is that the offending vehicle NL/02/A 1838/AS-03-4405 (as r enumbered) was not insured with them and as per the documents available on recor d the said vehicle was insured with National Insurance Company Ltd. On receipt o f the process the petitioner filed Written Statement stating the above fact and denied their liability and to realise the said amount from National Insurance Co mpany Ltd. However, the Tribunal took the stand that when the petitioner Orienta l Insurance Company Ltd. had taken the plea that vehicle under reference was ins ured with the National Insurance Company Ltd. the burden lies on the petitioner. Oriental Insurance Company Ltd. to satisfactorily establish and prove its case. There can not be any basis for such explanation. The burden is always on the cl aimant. In view of the above the impugned order passed by the Tribunal is set aside and the matter is remitted back to the Tribunal for fresh disposal in accordance wit h law after impleading the National Insurance Co. Ltd. as party respondent. The claimant as well as the writ petitioner contesting the matter shall appear befor e the Member, Motor Accident Claims Tribunal, Jorhat on 12.12.2002 and thereafte r the Tribunal shall proceed to dispose of the matter as expeditiously as possib le preferably within a period of four months, as the claimant is suffering from 1993. The Tribunal may call for the records of the criminal case in original alo ng with the seized documents, if available. It is submitted that an amount of Rs .25,000/- was deposited by the Oriental Insurance Co. Ltd. and it was allowed to be withdrawn by the claimant and as such it will be subject to the final decisi on of the Tribunal. (cid:29) 4. The appellant herein had filed an additional Written Statement w here they stated that the offending vehicle No.NL-02/A-1838 was not insured with them. The O.P.W. No.2 deposed for the Oriental Insurance Company Limited (O.P.N o.3) in the Tribunal and admitted Exbt. ’Ka’. From Exbt. ’Ka’ it appears that th e Cover note No.B-163623 was not issued by their company. He clearly deposed tha t NL-02/A-1838 vehicle was never insured with their company. In his cross examin ation he(O.P.W.2) stated that in the Additional Written Statement submitted by O .P. No.3 it was mentioned that the cover note No.B-163623 was issued by National Insurance Company (O.P. No.4) and they had enough evidence to establish it. Dur ing his cross examination he further stated that Registered letter was sent to t he owner of the offending vehicle but they had no knowledge whether the letter w as received by the owner of the vehicle or not. He denied that with an intention to avoid the liability of paying the compensation to the claimant they submitte d the Exbt. ’Ka’. He admitted that he did not submit any format issued during th e period from 30.04.93 to 29.04.94. He denied that at the relevant period the ve hicle No.NL-02/A-1838 was not insured with the National Insurance Company (the O .P. No.4). 5. The O.P. No.1 deposed, for the O.P. No.4 (the National Insurance Company Ltd.). From his evidence it is found that the cover note No.B-163623 wa s issued from their company which was signed by one Development Officer, Ranjit Hazarika. The Exbt. ’Ka’ is the office copy of the cover note No.B-163623. He st ated that by that cover note (Exbt. ’Ka’) they insured a Bajaj Scooter bearing R egistration No.AS-03/4405 and the owner of the vehicle was Md. Abdul Aziz. Accor ding to him, the vehicle No.NL-02/A-1838 was not insured by the said Cover note. From his testimony it reveals that on the earlier occasion they submitted a wri tten statement in which they denied that the vehicle No. NL-02/A-1838 was insure d with their company and as such, their company’s name was struck off by the Tri bunal. 6. Thereafter, Mr. S. Dutta, learned counsel for the appellant has made a reference to the findings of the tribunal which are extracted for appreci ation: (cid:28)O.P.W No.2 stated that Exbt. ’Ka’ was received by their company from the office r-in-charge of Borholla P.S. Exbt. ’Ka’ which is submitted by O.P. No.3 in suppo rt of their claim that the offending vehicle was insured with the National Insur ance Company Ltd. is not a copy received from the concerning police station. Bec ause the I.O. during investigation seized a photocopy of Insurance Policy No.B-1 63623 which was issued by the Oriental Insurance Company Limited. Exbt. ’Ka’ was issued on 04.10.93 and it covers the period from 4.10.93 to 5.10.94. From Exbt. ’Ga’ it is found that on 30.04.93 a Bajaj Scooter bearing Registration No.AS-03 /4405 was insured with O.P. No.4. The O.P.W. No.2 for Oriental Insurance Company Ltd. in his evidence stated that he did not bring the policy register during th e period from 30.04.93 to 29.04.94. The accident took place on 28.11.93. The O.P . No.3 failed to show that from whose custody they obtained the Exbt. ’Ka’ to pr oduce the document in the Tribunal. Exbt. ’Ka’ and ’Kha’ are not identical with each other. Exbt. ’Kha’ is produced by O.P. No.4 from their office but O.P. No.3 failed to explain from whose possession they obtained the said document (Exbt. Ka) and produced before this Tribunal. (cid:29) 7. However, after appreciating the evidence on record both oral and documentary the Tribunal held that the offending vehicle bearing registration N o.NL-02/A-1838 was insured with the O.P. No.4. Later on, the Tribunal held that the C.W. 3 in his evidence stated that the offending vehicle No.NL-02/A-1838 was insured with the Oriental Insurance Company Ltd. The said company (the O.P. No. 3), in their first written statement did not deny that the offending vehicle was insured with it. Subsequently, in their Additional written statement they state d that the offending vehicle was insured with the National Insurance Company Ltd . It has been further stated that the O.P. No.3 got documentary evidence to esta blish it. O.P. No.3 failed to show from whose custody the Exbt. ’Ka’ was obtaine d by them and as such the genuineness of the Exbt. ’Ka’ cannot be free from susp icion. 8. Mr. S. Dutta, learned counsel appearing for the appellant submit ted that the said findings as returned by the Tribunal are absolute misreading o f the evidence. He submitted that from the Additional Written Statement as well as from the Exbt. ’Ka’ document it would be established that the appellant has n o liability or any nexus with the offending vehicle. On the other hand, Ms. S. Roy, learned counsel appearing for the respondent No.3., the National Insurance Company Ltd. submitted that the vehicl e was also not insured by them. The Exbt. ’Ka’ as produced by the appellant in t he Tribunal is a cover note for a Bajaj scooter, not for the offending vehicle ( truck). 9. This Court after appreciating the rival contentions and on deepe r scrutiny of the records as placed before the Tribunal finds that the appellant in the written statement stated at Para-15 that in absence of the insurance par ticulars in the claim petition it is denied that the alleged vehicle was insured with them. This statement cannot be treated either as an admission or as an eva sive denial. It demonstrates that the definite statement has not been made for l ack of particulars. A statement is found in the clam petition that the Oriental Insurance Company Ltd. was the insurer of the vehicle having Policy No.163623. T here had been no denial in the Written Statement, in this regard. But thereafter , the appellant filed an additional written statement. It is to be pointed out t hat the said entry regarding the insurance policy was provided by the claimant w ithout any reference to the record. The entry was initially in the name of the N ational Insurance Company, Jorhat Divisional Office, Jorhat. Thereafter by way of amendment the entry as referred has been altered on 27.05.1996. The appellant by filing an additional written statement categorically st That in the said written statement, this O.P. stated in para-15 that in ated that : (cid:28)2. the absence of the Insurance particulars it has denied that the offending vehicl e was validly insured by them. 3. That now the Opposite Party is in a position to deny its involvement as the number of cover note-163623 as given by the claimant does not pertain to the insurance policy issued by the O.P.

4. e National Insurance Co. Ltd. (cid:29) That as a matter of fact this cover note No.163623 had been issued by th

10. Reference to the deposition of O.P.W.2 for the appellant may be essentia l as he categorically stated in the Tribunal that the offending vehicle bearing registration No.NL-02/A-1838 was insured by the National Insurance Company Ltd. and he stated that on due diligence they could not collect the insurance certifi cate and that was exhibited under objection. The said document is available with the record. From a reading of the said document, it appears that the said docum ent was issued by the National Insurance Company Ltd. and from the said policy c ertificate bearing cover note No.B-163623 it further appears that the National I nsurance Company Ltd. issued the same in the name of Md. Abdul Aziz for covering the risk of his Bajaj scooter. National Insurance Company Ltd. also admitted th at the said cover note was issued under No.B-163623 by them for a Bajaj scooter. The O.P.W. No.1 namely Sri Sujit Kr. Chanda however deposed that the cov 11. er note as referred in the claim petition did not tally with the cover note as u sed by the National Insurance Company Ltd. But no model cover note was submitted for scrutiny of the Tribunal. From the cross examination of the O.P.W No.2, it transpires that the app 12. ellant had made a thorough search to locate the insurer of the said vehicle and during that search they could collect the copy of the Exbt. ’Kha’ document from the police. At the fag end of the cross examination he denied the suggestion tha t the offending vehicle bearing registration No.NL-02/A-1838 was not insured wit h the National Insurance Company Ltd. The appellant thus has categorically estab lished that the offending vehicle was not insured with them. 13. However, Mr. S. Dutta, learned counsel mentioned that the specific forma t as used by the appellant for providing the insurance cover note is at the Exbt . ’Ga’. When the Exbt. ’Ga’ is compared with the disputed cover note, it surface s without equivocality that these two formats are not only different but differe nt altogether and as such in the opinion of this Court, the appellant has suffic iently discharged their onus in proving that the insurance cover note at Exbt.A. ’Ka’ was not issued by them. For mere non production of the policy register the Tribunal would not have held that the appellant insured the offending vehicle. When an existence of a particular fact is pleaded negatively and is proved its n on-existence, there cannot be any room left for presumption. As corollary to this, the findings of the Tribunal are set aside and it 14. is held that the appellant has no liability of any sort as emerged from the said accident as there is no proof that the appellant had any nexus with the vehicle in any capacity or they had any contract of insurance as regards the said vehic le at any point of time. 15. The statutory deposit accordingly be returned to them. The appellant has categorically made an assertion by the testimony of the O.P.W. No.1 who stated that the vehicle is insured with the National Insurance Company Ltd. though the National Insurance Company Limited has denied their involvement and asserted tha t Exbt. ’Ka’ as produced in the Tribunal is a cover note for a scooter, not for the offending vehicle. But the inquiry had not been directed to ascertain whethe r the vehicle was insured with the National Insurance Company Ltd. or not. The f ocus of the inquiry was entirely fixed on the nexus of the offending vehicle wit h the appellant herein. 16. In view of this, the claim would again remit back to the Tribunal for ma king necessary inquiry in this aspect within a period of 2(two) months from the date of receiving the records for deciding the claim afresh on the aspect of the insurance coverage in accordance with law and in terms of this order. In the pr oceeding the appellant stands struck off. The Tribunal shall record necessary co rrections in the records. 17. icated above. For the aforesaid reason this appeal stands allowed to the extent as ind There shall be no order as to costs.