Patna High Court
Branch Manager, New India Assurance Co. ... vs Nakul Sah And Ors. on 11 January, 2002
Equivalent citations: 2002ACJ1916, 2002(50)BLJR373
JUDGMENT Radha Mohan Prasad, J.
1. This appeal is directed against the judgment and award passed by 5th Additional District Judge, Bhagalpur in Claim Case No. 8 of 1987 allowing the application, on contest, with costs against the appellant company and directing them to pay Rs. 50,000 with pen-dente lite and future interest at the rate of 12 per cent per annum within one month.
2. In the present case, the deceased aged about six years was run over by jeep bearing registration No. BHQ 6869, for which Nathnagar P.S. Case No. 159 (9) of 1986 under Sections 304-A and 279 of Indian Penal Code was registered. It is alleged that the jeep was being driven rashly and negligently and crushed the boy and then sped away.
3. According to the case of appellant, the vehicle is claimed to be insured from Bhagalpur Branch of appellant company, bearing registration No. 4322123076. The case was contested by the appellant and the written statement was filed in which insurance of the vehicle with the company was not admitted.
4. Learned Tribunal framed issues and examined witnesses and on consideration of the same came to the conclusion that the applicants have not proved insurance policy but have given the number, which has not been produced by the opposite party. The Tribunal also considered the evidence of company witness OPW 1, who stated that the jeep was not insured with the company and that policy No. 4322118874 is the policy of vehicle No. BHD 1256. Despite opportunity, the insurance company failed to produce the policy, number of which has been disclosed by the claimants and on said failure, the Tribunal, with reference to the decision of Andhra Pradesh High Court in the case of New India Assurance Co. Ltd. v. Anga Chinni Babu 1992 ACJ 281 (AP), held the company responsible to pay the amount of compensation.
5. In this appeal, this court, vide order dated 1.12.2000, directed the appellant to file a supplementary affidavit annexing therewith a photocopy of the policy No. 4322123076 and policy No. 4322118874 of Bhagalpur Branch of the company in order to satisfy the court that the jeep in question was not insured with the company.
6. A supplementary affidavit was filed on 29.11.2001. Learned counsel for the appellant produced the photocopy of the policy No. 4322118874, but failed to produce the copy of policy No. 4322123076. Since thereafter the court granted three adjournments on the prayer of the appellant for production of the copy of the said policy but learned counsel for the appellant submitted that despite his best efforts, he has not been supplied with the copy of the said policy by the appellant and under such circumstances, he has failed to produce the same before this court.
7. Andhra Pradesh High Court in the case of New India Assurance Co. Ltd. v. Anga Chinni Babu 1992 ACJ 281 (AP), under similar circumstances, has held that when the claimants furnished the number of the policy, it is the duty of the insurance company to produce the policy and on failure, the court is rightly justified in drawing an adverse inference.
8. In the present case also, this court finds that even in this court the appellant has failed to produce a copy of the policy, the number of which has been furnished by the claimants in the court below itself, despite opportunity granted.
9. Under such circumstances, this court does not feel persuaded to interfere with the impugned award. The appeal is, thus, dismissed.
10. The appellant is directed to pay the awarded amount with interest within three weeks. The claimants will be entitled to withdraw the statutory amount deposited by the appellant in this court, vide Challan No. 54 dated 30.4.1999.