2015(4) ALL MR 163
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

T. V. NALAWADE, J.

New India Assurance Company Ltd. Vs. Sarjubai w/o. Ramgopal Loya & Ors.

First Appeal No.634 of 1998

24th July, 2014.

Petitioner Counsel: Mr. D.S. KULKARNI h/f Mr. S.L. KULKARNI
Respondent Counsel: Mr. S.P. SONPAWLE, Mr. S.V. KULKARNI

Motor Vehicles Act (1988), Ss.134, 138 - Accident claim - Liability of insurer - Collision between tempo and truck - Claimants have no knowledge about insurance of truck - No document like form A, cover note or Insurance Certificate was produced - Registration details of truck were produced by Insurance Company of tempo - Virtually no record to show truck was insured with appellant company - As per Ss.134, 154 no information supplied to the police by owner and driver - Insurance company not liable. (Para 6)

JUDGMENT

JUDGMENT :- The appeal is filed by the Insurance Company of truck against the judgment and award of claim petition No. 51 of 1990, which was pending before the Claims Tribunal, Aurangabad. The Tribunal has directed the Insurance company, present appellant to pay compensation jointly and severally with the owner. It is the case of the Insurance Company that it is not liable to pay anything in view of the provisions of Motor Vehicles Act and the terms of condition of the policy. Both sides are heard.

2. Accident took place on 20.9.1989. The deceased Ramgopal was travelling in the tempo and there was collision between between the tempo and one a truck. Ramgopal Loya died on the spot in the accident. The claim was made by widow and issues of Ramgopal and also by other relatives.

3. It is the case of the claimants that deceased was travelling in the tempo. There is no specific contention with regard to the capacity in which the deceased was present in the tempo.

4. Respondent No.7, New India Assurance Company, appellant filed written statement. It is the case of the Insurance company that claimants need to put to the strict proof of the contention. Everything was denied by the Insurance company including insurance of the vehicle.

5. The claimants have no personal knowledge about Insurance of truck bearing No. MCY 3595, which was standing in the name of original respondent No.4. There was no specific contention in that regard in the claim petition, due to want of knowledge. With the claim petition, no document like Form A or cover note or Insurance certificate was produced. It appears that registration particulars of truck were produced by the Insurance company of tempo. Registration particulars in respect of tempo shows that tempo was insured with United India Insurance Company at the relevant time. The particulars in respect of truck show that truck was also insured with the United India Insurance company at the relevant time. Particulars of certificates issued by Insurance Company in respect of truck are mentioned in the registration particulars.

6. The judgment delivered by the Tribunal does not show as to why Tribunal held the appellant, Insurance Company of truck responsible for paying the compensation. There was virtually no record to show that the vehicle, truck was insured with the appellant. Initial burden is always on the claimant and on owner of the vehicle to show that vehicle was insured. There are provisions in Motor Vehicles Act like Sections 134 and 158 mentioning that information is required to be supplied to the police by the owner and driver and on the basis of that information vehicle number, Insurance particulars and other record can be collected by the claimants. Such record needs to be sent by the police to the Tribunal. Absence of Form A shows when no such information was supplied by the owner of the truck to police. The matter proceeded exparte against the owner of truck. There was no record about insurance of truck. The appellate had not admitted the fact of insurance.

7. In view of aforesaid circumstances, this Court holds that the Tribunal has committed error in directing the Insurance Company of truck to pay compensation alongwith respondent No.1, owner of the truck. As interference is warranted, this Court holds that the appeal needs to be allowed. However, claimants will be entitled to recover the compensation from the remaining respondents. In the result, the appeal is allowed with no order as to costs. The judgment and award of the Tribunal making the Insurance Company of truck jointly and severally liable with the owner and other parties is hereby set aside. The claim made against the present appellant stands rejected. The amount, if any, deposited by the appellant in this Court is to be returned to it. If the amount is withdrawn, the appellant will be entitled to recover it from the owner of the vehicle. The award is to be prepared accordingly.

Appeal allowed.