Karnataka High Court
The New India Assurance Co Ltd vs Sri Basheer Ahmed on 20 November, 2012
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 20TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
MISCELLANEOUS FIRST APPEAL NO.11418 OF 2008(MV)
Between :
The New India Assurance Co. Ltd.,
Divisional Office:P.B.Road,
Opp:Savali Sadhan,
Patel College Road,
Dharwad,
Represented by Divisional Office-12
Mayur Complex, KIADB Main Road,
Peenya, Bangalore - 560 058
By its Senior Divisional Manager.
...Appellant
(By Sri C.R.Ravishankar, Advocate)
And :
1. Sri Basheer Ahmed
Aged about 57 years,
S/o Sri Abdul Raheem Sab
R/at 2nd Cross, Subhashnagar,
Kyatasandra, Tumkur District.
2. M/s.Bellada and Company
Vidyanagar, Hubli,
2
Dharwad District,
Represented by its Manager.
... Respondents
(By Sri Murali B.S., GPA holder for R2
Sri Ravishankar, Advocate for R1)
This MFA is filed under Section 173(1) of MV Act
against the Judgment and award dated 01.03.2008
passed in MVC.No.245/1999 on the file of Presiding
Officer, Fast Track Court-IV & Additional MACT,
Tumkur, awarding a compensation of Rs.1,36,300/-
with interest @ 6% P.A. from the date of petition till
award is made good.
This MFA coming on for hearing this day, the
Court delivered the following:-
JUDGMENT
Aggrieved by the judgment and award passed by the Tribunal, the insurer has filed the present appeal questioning the liability to satisfy the award.
2. It is contended that - firstly, there is no policy at all. Secondly, even if there is a policy, there is violation of conditions. Hence, they are not liable to satisfy the award. It is further contended by the learned 3 counsel for the appellant that no policy has been produced before this Court.
3. Heard the learned counsels and examined the records.
4. While considering the question of negligence, two additional issues were framed by the Tribunal, namely, "1. Whether R.2 insurance company prove the violation of policy condition by R.1 as contended in para - 12 of its W.S., and hence R.2 is not liable to indemnify the loss and damage to the petitioner on behalf of R.C. owner?
2. Whether R.2 proves that copy of policy produced by R.1 does not pertains to the vehicle on hand?
3. What order and award?"
4
5. On additional issue no.1, the Tribunal held between para - 16 to 20, that no evidence was led-in by the insurer. None of its Officers were examined. No case was made out on violation of policy conditions by respondent no.1. Even the driver of the lorry was not examined. The insurer did not choose to call upon the driver of the vehicle to produce the driving licence, if any. It has not even called upon the licencing authority to produce the driving licence if any issued to the driver. Under these circumstance, the Tribunal held that the insurer has failed to prove its defense with respect to the issue on hand.
6. On additional issue no.2, the Tribunal held at at para - 21 and 22, that the specific contention of the claimant as well as respondent no.1 was that the policy bearing No.3167200017780, was issued by respondent no.2 - insurance company, on 31.03.1998, which was in force upto 30.03.1999 for the vehicle. That the 5 insurer has not come forward to deny the information and to assert on oath that the particular policy did not pertain to the tractor in question. None of the Officers of the insurer was examined to establish the case of falsity. That the insurer has not taken any steps whatsoever to substantiate his plea. Hence, additional issue no.2 was held in the negative and against the insurer.
7. On considering the contentions as well as the reasoning adopted by the Tribunal, I do not find any error committed by the Tribunal that calls for interference. The additional issues framed were to be proved by the insurer. The insurer has failed to prove the additional issues. No evidence has been led-in. Hence, the additional issues were held in the negative by assigning substantial reasons for the same. 6
8. The contentions would necessarily have to emanate from the evidence and the records. They cannot be raised for the first time before the Appellate Court. Even otherwise, there is absence of material if any, for the appellant to rest on. Under these circumstances, the contention raised before this Court cannot be accepted. Even otherwise, the reasoning adopted by the Tribunal in holding the additional issue nos.1 and 2 against the appellant is justified and in accordance with the records. Hence, I do not find any error that calls for interference. The appeal being devoid of merits is dismissed.
9. The amount in deposit be transmitted to the Tribunal for necessary orders.
Sd/-
JUDGE JJ