Gujarat High Court
Oriental Insurance Company Ltd.At ... vs Jayeshbhai Bhagubhai Patel on 28 January, 2022
C/FA/4114/2009 JUDGMENT DATED: 28/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4114 of 2009
With
R/FIRST APPEAL NO. 4115 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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ORIENTAL INSURANCE COMPANY LTD.AT ORIENTAL HOUSE,A/25/27,
Versus
JAYESHBHAI BHAGUBHAI PATEL & 2 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 2
MR AMIT N PATEL(2749) for the Defendant(s) No. 1
SERVED BY AFFIX. (R) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 28/01/2022
ORAL JUDGMENT
1.1 First Appeal No. 4114 of 2019 is preferred by Appellant- Insurance Company against the judgment and order passed by Learned Motor Accident Claims Tribunal (Main), Valsad in Motor Accident Claim Peition No. 1446 of 2002 (Old No. 427/1999) mainly on the ground that the policy of the truck bearing registration No. MP-23-V-0662 is fake and Insurance Page 1 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 Company is not liable to pay the amount of Rs. 3,00,000/- compensation with 8 % p.a interest to the claimants of First Appeal No 4114 0f 2009.
1.2 First Appeal No. 4115 of 2019 is preferred by Appellant- Insurance Company against the judgment and order passed by Learned Motor Accident Claims Tribunal (Main), Valsad in Motor Accident Claim Petition No. 1447 of 2002 (Old No. 428/1999). The claim petition is filed for the son, who died after 3 hours after he born.
2. Brief facts of the case are as under:
2.1 As per the claim petition, it is the case of the claimants that on 30.04.1999, the deceased - Dakshaben Jayeshbhai Patel was sitting as pillion rider on the scooter bearing registration No. DD-03-4042, going towards Pardi and as she reached near Damani Zapa, opposite Mohan Dayal Hospital, another truck bearing registration No. MP-23-V-0662 had come from the opposite side and dashed with each other. The deceased Dakshaben, who was pregnant at the time of accident, was taken to the hospital, where she delivered a child and later she scummed to her injuries and accordingly the FIR was registered at Pardi Police Station being CR. No. 157/1999 against the opponent No. 1. Further, it is the Page 2 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 submission of the claimant that at the time of accident, the deceased was aged 20 years and she was earning Rs. 3,000/-
per month by selling vegetables and, therefore, the claim petition is filed to get the compensation of Rs. 3,00,000/- from the opponents.
2.2 The Tribunal has issued notice to the opponents in the Motor Accident Claim Petition filed by claimants. Thereafter, the opponent No. 1 is deleted in the claim proceedings. Opponent No. 2 - owner, has not filed any written statement against the claim petition. The respondent No. 3 - Insurance Company has appeared before the Tribunal and has filed the written statement by disputing the averments made in the claim petition. It was further averred in the written statement by the Insurance Company that at the time of accident, insurance was not availed from the Insurance Company and Insurance Company is wrongly impleaded as party in the claim proceeding. Insurance Company has neither received any premium nor issued any policy as indicated in the documentary evidence produced in the claim petition. Therefore, the Insurance Company has denied its liability to pay any amount of compensation.
2.3 The Tribunal has framed issues at Exhibit 36 and has recorded the oral deposition of the claimant - Jayeshbhai Bhagubhai Patel at Exhibit 52 after considering the Page 3 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 documentary evidence produced on the record at Mark 54/5. The Insurance Company has also produced documentary evidence by way of affidavit filed by its officer at Exhibit 30 and deposition of its officer - UrmilaBen at Exhibit 72. Thereafter, the Tribunal has also considered the oral deposition as well as considered the documentary evidence produced at Exhibit 78 - the insurance policy and other documentary evidence and has considered the submission of the rival parties and thus decided the claim petition by jointly directing opponent Nos. 2 & 3 to pay the amount of compensation of Rs. 3,00,000/- with 8 per cent p.a interest to the claimant. Hence, present appeal is preferred by Insurance Company.
3. The learned advocate for the Insurance Company Mr. Palak H Thakkar has raised only contention about the fake Policy of the truck. He has submitted that the policy which is produced on the record at Exhibit 78, is not issued by the Appellant - Insurance Company. He has further submitted that the in affidavit filed at Exhibit 30 by the officer of the Insurance Company - Shailendra Kumar, who was Senior Divisional Manager of the Oriental Insurance Company Ltd, Jamshedpur, District East Singhbhum, officer has specifically averred that the policy No. 063005689, was never issued by its office. More particularly, in the affidavit, the said officer has indicated some glaring errors that the basic premium Page 4 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 shown in the said policy is Rs. 2870/- but actually, the rate of premium in the relevant period was Rs. 2779/-. He has also stated in the affidavit that in the policy, at the top, it is mentioned as "passenger carrying vehicle", though the vehicle is a truck, a commercial vehicle. Learned advocate Mr. Thakkar has further drawn attention of this Court to the deposition of UrmilaBen, at Exhibit 72, who is serving as Assistant Manager at Valsad office, where she has deposed that averments made in the affidavit at Exhibit 30, signed by the Shailendra Kumar, are true as, she is aware about the signature of the said officer-Sailendra Kumar. Learned advocate Mr. Thakkar has further drawn my attention towards the Policy at Exhibit 78 whereby he has tried to indicate that at the top of the Policy, mentioning of passenger carrying vehicle, creates suspicion about genuineness of Policy. He has also indicted that at the relevant point of time, policy from the Insurance Company was normally issued in handwritten manner whereas the present Policy is issued by using typewriter. Therefore, the Policy is fake one and on that count only, the Insurance Company is wrongly fastened the liability of the payment of compensation by the Tribunal and the Tribunal has erred in awarding the amount of compensation by holding the present appellant liable to pay the compensation therefore, he prays to allow the appeal as there is no liability of the Insurance Company, as no relationship with the insured and insurer is existing as per his Page 5 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 submission.
3.1 He has submitted that the claimant has produced the zerox copy of the Insurance Policy at Exhibit 72 before the Tribunal. Therefore, that document cannot be relied upon in absence of original document produced on the record. Mr. Palak Thakkar has not made submissions or any other issues.
4. I have also learned advocate Mr. Amit Patel appearing for the claimant. Learned advocate Mr. Amit Patel has drawn my attention to the affidavit filed by Shailendra Kumar by contending that the said officer is serving at Bistupur town, Jamshedpur District, Singhbhum, where the Policy bearing No. 630056789 is issued from the Jamshedpur office of the Insurance Company. He further submitted that officer - Mr. Shailendra Kumar is not available for the cross-examination as he has merely filed affidavit and the the Insurance Company has not choose to call him or made him available for the cross-examination. Therefore, in absence of any opportunity to cross-examine such witness, such deposition merely by filing affidavit, should be discarded. Learned advocate Mr. Patel has also submitted that if we look at the deposition of the another witness - Urmilaben, who has also been cross-examined at Exhibit 72 by the claimants, it is transpired that she has admitted in the evidence that the Insurance Company came to know about such fake Policy in the year 2003. The said Page 6 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 witness has deposed on 14.07.2008 before the Tribunal and till that at that point of time, she has clearly admitted in her cross-examination that she has yet have no knowledge whether any complaint is filed pursuant to the such fake Policy by the Insurance Company or not?. Urmilaben has also admitted in the cross-examination that she has no personal knowledge whether any Notice correspondence is entered about fake Policy with the owner of the vehicle by the Insurance Company or not?. She has categorically stated that she is not aware about any such action taken by the Jamshedpur office of Insurance Company and she has also admitted that at Valsad office, where she is working, Inurance Company has also not filed any complaint pursuant to the said fake Policy. Learned advocate Mr. Patel drawn attention of this Court on the document of the said Policy, which is produced at Exh. 78, where learned advocate Mr. Patel he has indicated that on the top of the Policy, it is mentioned as commercial vehicle, then after as passenger carrying vehicle, then after Motor Vehicles Act, 1988 in the seriatim. Moreover, he has pointed out from the document itself that the vehicle bearing No. MP- 23-V-0662 is mentioned as Truck in the Policy itself. He has also pointed out that the said document is available with him as he received the copies from the police papers as police have registered FIR against the opponent No. 1 and at that point of time, police might have gathered the documents from the opponent No. 1. Therefore, the claimant being 3 rd party cannot Page 7 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 have original policy with them and the owner of the vehicle- opponent No. 2 has not choose to appear in the claim petition. Therefore, the claimant being third party cannot be fastened with the liability to produce original document on the record. In support of his contention that the Insurance Policy is liable to pay the amount of compensation. Mr. Patel has also relied upon decisions rendered by this Hon'ble High Court in First Appeal No. 701/2010 in the case of National Insurance Company Ltd vs. Kanjibhai Odhabhai Koli and has pointed out that in view of that judgment, Hon'ble High Court has found that Insurance Company is liable to pay the amount of compensation in almost similar set of circumstances of the present case. He has also relied upon the judgment of this Hon'ble High Court in First Appeal No. 733 of 1990 in the case of New India Assurance Co. Ltd. vs. Nuriben WD. O Abdulbhai Jamalbhai Badarpura. In that judgment he has relied on Para No. 5, which reads as under:-
"5. The positive evidence, which has come on the records is in the form of panchnama prepared on the spot, which contains name of the Insurance Company and the policy number. Unless such papers were available at the time of the accident, the panchas were not required to mention the name of the Insurance Company or the policy number. Details set out in the panchnama would clearly show that the name of the Insurance Company and the policy number were brought to the notice of the panch witnesses from the document Page 8 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 which was made available on the spot.
Against this,the Insurance Company has brought negative evidence on the records to show that they had no copy of such policy. Unfortunately, they did not produce register of policies nor the register containing number and details of the insured and the period of validity of the policy. They could have successfully proved by producing such register that either policy was not issued or if was issued, it was in favour of someone else."
4.1 He has submitted that Insurance Company has not taken any proper action against owner of the Truck to prove their case about the fake Policy except filing affidavit and deposition in proceeding before the Tribunal. Learned advocate Mr. Patel has also relied upon the judgment of Bombay High Court rendered in First Appeal Stamp No. 15567 of 2017 in the case of Shriram General Insurance Co. vs. Suniol Vithoba Pawar & Anr. Para No. 11 to 13 of said judgment is being reproduced as under :-
11. A perusal of the findings recorded by the Tribunal indicates that it was a specific case of the appellant that the insurance policy relied upon by the driver of the offending vehicle was false, fake and misleading. It was the case of the appellant that no such policy was issued in the name of the owner of the offending vehicle. Though the appellant had examined a witness who was the Legal Manager of the appellant, the said witness produced a photocopy of the cover note only of the said policy. However, in his cross-Page 9 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022
C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 examination, the witness Mr.Shankar Balaram Talekar admitted that he had investigated C.R.No.127/2010 and found that at the time of accident, the offending vehicle was covered by insurance with the appellant bearing Cover Note No.901226 and validity of the said cover note was from 19 th March 2010 till 11th March 2011. At the time of the said accident, the offending vehicle was covered by the said insurance policy
12. Based on the said evidence of Mr.Talekar, Tribunal has rightly held that on the date of accident, the offending vehicle was covered by insurance policy with the appellant. Except producing photocopy of the cover note, the appellant did not bother to examine the said Mr.Jaisaranraj M., who according to the appellant, was the policy ppn 7 2.fast-
15567.17 & ors..doc holder of the said policy produced by the owner of the offending vehicle.
13. Tribunal has also recorded detailed reasons including the reason that the appellant had not produced outcome of the criminal complaint filed by the appellant in respect of such alleged false, fake and fabricated cover note. In my view, since it was the case of the appellant that the policy relied upon by the owner of the offending vehicle was false, fake and misleading, the onus was on the appellant to prove such allegation before the Tribunal. The appellant having failed to prove such case, the Tribunal is justified in rendering the findings based on the evidence produced by the appellant and also Mr.Talekar that the offending vehicle was covered by the said insurance policy in question. The finding of Page 10 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 facts rendered by the Tribunal being not perverse cannot be interfered with by this Court in this First Appeal.
4.2 Learned advocate Mr. Amit Patel has submitted that in the present case the Insurance Company has failed to discharge its duty to prove such allegation about fake Policy by resorting to the procedure of filing criminal complaint as well as issuing notice to the owner even Insurance Company came to know about such policy in the year 2003. Therefore, learned advocate Mr. Amit Patel has submitted that in view of decision of 2018 5 SCC 656 Mangla Ram vs. Oriental Insurance Company Ltd and Ors where he has relied upon para 35 and 36 of the judgment and stated that in any case, at the most, this Hon'ble Court may direct Insurance Company to pay first to the claimants and then recover from the owner of the vehicle, if finds fit to do so. Therefore, he prays to dismiss the present appeal of the Insurance Company as Insurance Company is not able to prove its case of fake Policy in accordance with law and claimant is third party for any dispute about the contract between insurer and insured.
5. I have considered the rival submission of both the parties and also perused the relevant record of the Tribunal and also gone through the findings given by the Tribunal. The Tribunal has specifically discussed in Para No. 13 of the judgment about the aspect of liability of the Insurance Company and the Tribunal has rightly found that claimant being third party Page 11 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 in the present proceeding and since the dispute about the fake policy can be between the owner of the vehicle and Insurance Company and rights of 3rd party claimant cannot be affected by that and more particularly and the Tribunal has considered the judgments reported in 1997 (2) T.A.C. 693 V. Ravi vs. New India Insurance Company and another judgment 2003 (2) T.A.C. 407 (Calcutta) in the case of United India Insurance Company vs. Ms. Meena Mitra and another and has found that dispute regarding the fake Policy is not proved in the present case by convicing evidence and the liability of the Insurance Company cannot be denied about payment of the claim amount to the claimants, who are 3 rd party to such dispute about policy. Moreover, I found from the deposition of the witness of the Insurance Company-Urmilaben at Exhibit 72 that Insurance Company has failed to file any complaint or proceedings against the owner of the vehicle or any other person regarding such alleged fake Policy though the Insurance Company has knowledge about the fake Policy in the year 2003 and not only that Insurance Policy has neither entered into any notice correspondence with the owner of the vehicle regarding such Policy being fake nor any legal proceeding is found to be initiated against the owner of the vehicle or any such other person by the Insurance Company regarding the fake Policy. Therefore, the Insurance Company cannot shrug away its liability to pay the compensation pursuant to the Insurance Company. It is the cardinal principle while deciding Page 12 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 such compensation cases that hyper technical approach should not be adopted by the Courts while deciding claims in Motor Accident Claim Petition.
5.1 I am convinced with the submission made by the learned advocate for the claimants Mr. Amit Patel that in absence of any believable material, cogent and convincing evidence to prove that the policy is fake , the liability of Insurance Company for payment of compensation is rightly found by the Tribunal. Therefore, there is no merit in the submission made by the Insurance Company that Tribunal has erred in awarding the compensation by holding Insurance Company liable to pay the amount of the compensation to the claimant, as the Policy in question is fake Policy.
5.2 Since I have found that Tribunal has not committed any error or illegality in awarding the compensation and by holding the Insurance Company liable to pay the amount of the compensation to the claimant but, in the interest of justice and in the facts of present case, first pay and then recover. Principle may be applied to protect the interest of the Insurance Company by modifying the direction given in the judgment and award passed by the Tribunal to that effect. In view of above, the present appeal is dismissed. The present appeal is meritess against the claim made by the claimants and, therefore, appeal is dismissed to that effect. However, in Page 13 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 the interest of justice, it is kept open for Insurance Company, that in view of the judgment reported in 2004 13 SCC 224 (Oriental Insurance Co. Ltd. vs. Nanjappan and Others.), the Insurance Company can recover the amount deposited by Insurance Company from the owner.
6. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.
7. This Hon'ble Court while admitting the present appeals has passed the order on 26.10.2009 as under:-
"ORAL ORDER ADMIT.
ORDER IN CIVIL APPLICATIONS Page 14 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022 C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 Rule returnable on 08.12.2009.
Ad-interim relief in terms of Para-7(i) of both the applications on condition that the applicantInsurance Company will deposit the decretal amount with the Tribunal, on or before 01.12.2009, who, in turn, shall invest the same in F.D.R. in a nationalized Bank, initially, for a period of five years and which shall be renewed from time to time, without any orders from this Court in that regard, until the final disposal of the main matters. Till then, the quarterly interest accruing on such deposit shall be paid to the original claimant."
8. The amount lying in the FDR, shall be paid to the claimants forthwith by the Tribunal after due verification by way of account payee cheque and Insurance Company may recover the amount, which is deposited in pursuant to the above mentioned order from the owner of the vehicle- opponent No. 2 as indicated hereinabove.
9. With above observations, the following order is passed.
9.1. Both the appeals, First Appeal No. 4114/2009 and First Appeal No. 4115/2009, filed by the Oriental Insurance Company Ltd. are dismissed, with no order as to costs.
9.2 The record and proceedings lying before this Hon'ble court shall be sent back forthwith to the concerned Tribunal.
Page 15 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022C/FA/4114/2009 JUDGMENT DATED: 28/01/2022 9.3 In view of above appeals of the Oriental Insurance Company Ltd., are hereby dismissed with liberty granted to Insurance Company to recover such amount from the owner of the vehicle.
(SANDEEP N. BHATT,J) MANISH MISHRA Page 16 of 16 Downloaded on : Fri Feb 04 20:12:40 IST 2022