,
Nisha M. Thakore, J",
1.0. The present appeal is filed by the original claimants under Section 173 of the Motor Vehicles Act seeking enhancement of the claim which was,
partly allowed by the learned Motor Accident Claims Tribunal, Surat for an amount of Rs.1,66,000/- with 9% interest and costs by the impugned",
judgment and award dated 5.5.2009 passed in MACP No.9 of 1987. By the said judgment and award the Tribunal has exonerated respondent no.2-,
Insurance Company and has held respondent no.3 the owner of the offending vehicle liable towards the aforesaid award.,
2.0. The facts in nutshell as emerges from the record of the appeal are as under:,
2.1. The deceased viz. Vitthalbhai Somabhai who was son of appellant no.1 (expired pending the claim petition deleted) and the brother of the,
appellant no.2 along with one Vinubhai were walking on the footpath as pedestrian on 14.6.1986. Suddenly one Luxury Bus bearing registration No.,
GTK 3001 came in full speed being driven by the respondent no.1 in rash and negligent manner and dashed with the deceased from behind. Deceased,
received serious injuries and died on the spot.,
2.2. The claimants being heirs and legal representatives of deceased preferred Claim Petition before the Motor Accident Claims Tribunal, Surat,",
which was registered as MACP No.9 of 1987. The Claim Petition was filed under Section 166 of the Motor Vehicles Act seeking amount of,
compensation of Rs.2 lakhs with interest and costs. The Claim Petition was filed against the respondent no.1 who was driver of the offending Luxury,
Bus, opponent no.2 being the Insurance Company and opponent no.3 who was the owner of the Luxury Bus were joined as party opponents.",
2.3. The opponent nos. 1 and 3 were duly served, however they chose not to appear before the Tribunal and opponent no.2- Insurance Company was",
represented through their lawyer. The Insurance Company had filed written statement vide Exh.63 mainly contending that the claimants are not,
entitled to realize the compensation from them.,
2.4. The Tribunal after considering the rival contentions of the parties, had framed the issues at Exh.53. The same are reproduced as under:",
“1. Is it proved that applicant sustained injuries and died due to rash and / or negligent driving of the driver of vehicle involved in the accident, as",
alleged ?,
2. Whether the claimant/s is/are entitled to get compensation ? If yes what amount?,
3. What order and from whom?â€,
After considering the evidence on record, the Tribunal proceeded to answer those issues. Ultimately, the Tribunal holding the driver of the vehicle",
being negligent, held opponent nos. 1 and 3 jointly and severely liable and awarding compensation of an amount of Rs.1,66,000/- to be realized from",
the opponent 3 only. At the same time, the Tribunal exonerated opponent no.2- Insurance Company. The sole reason being that the policy particulars",
were not brought on record by the original claimants.,
2.5. The claimants being aggrieved and dissatisfied with the aforesaid conclusion of the Tribunal as well as compensation awarded by the Tribunal,",
has approached this Court by way of present appeal.,
3.0. This Court by order dated 26.08.2009 has admitted this appeal. Rule has remained unserved for original opponent no.1- driver of the offending,
vehicle. The report of service of notice qua respondent no.3 reveals that the original opponent no.3 â€" owner of the vehicle has expired. Ms. Karuna,
Rahevar, learned advocate has appeared on behalf of the respondent no.2- Insurance Company. The matter was listed for final hearing and on various",
occasions matter was adjourned directing the learned advocate for the appellants- original claimants to take necessary steps qua the unserved,
respondent. The learned advocate had failed to take necessary steps. Considering the fact that the matter relates to the accident of year 1986, the",
appeal was peremptorily heard with the assistance of the learned advocates on record. The Record and Proceedings was called for and same has,
been examined by this Court.,
4.0. I have heard Mr. Hiren Modi, learned advocate for the appellants and Ms. Karuna Rahevar, learned advocate for the respondent no.2- Insurance",
Company.,
5.0. Mr. Modi, learned advocate for the appellant at the outset invited attention of this Court to the findings and the reasons recorded by the Tribunal,",
more particularly, while deciding the issue of negligence.",
5.1. He has reiterated the manner in which the accident has taken place and has further drawn attention of this Court to the panchnama of place of,
accident, which is brought on record vide Exh. 76. By referring to and relying upon the aforesaid panchnama, he submitted that the Tribunal",
committed serious error in concluding that the claimants have failed to furnish any particulars of Insurance Policy in respect of offending vehicle. He,
submitted that on bare reading of the content of the aforesaid panchnama, it clearly transpires that owner of the Luxury Bus has taken Insurance",
Cover of the offending vehicle from respondent no.2, which had policy bearing No.14250/ 110 / 00000/30/85/10873 and it was valid upto 6.12.1986.",
He further submitted that the accident had taken place on 14.6.1986. He, therefore, submitted that particular of policy being valid upto 6.12.1986 has",
come on record, once the panchnama was exhibited. In such circumstances, the burden of proving the fact of insurance cover was upon the",
Insurance Company and the Tribunal ought to have called upon the respondent no.2 to furnish the copy of Insurance Policy on record. He, therefore,",
submitted that present appeal be allowed holding respondent no.2 also liable to compensate the original claimants.,
5.2. On the second issue of compensation, Mr. Modi, learned advocate for the appellants submitted that the Tribunal committed error while deducting",
half of the amount towards personal expenses. He submitted that only 1/3rd of the amount was required to be deducted towards personal expenses.,
He, therefore, prayed to re-calculate the future loss of income by considering 2/3rd of the amount. In support of his above submissions, he relied upon",
the decision of this Court in the case of Bijoy Kumar Dungar Vs. Bidyadhar Dutta & Ors. reported in AIR 2006 SC 1255 and in the case of Bilkish,
Vs. United India Assurance Co. Ltd. reported in 2008 ACJ 1357. He further submitted that the Tribunal also committed an error in not considering the,
future prospective income while determining the compensation to be awarded to the original claimants. He therefore prayed for enhancement of the,
award amount under the aforesaid two heads and to award appropriate interest on such enhanced amount.,
6.0. On the other hand, present appeal has been vehemently objected by Ms. Karuna Rahevar, learned advocate for the Insurance Company No.2.",
6.1. Ms. Rahevar, learned advocate invited attention of this Court to the fact that father of the deceased i.e. appellant no.1 has expired pending the",
claim petition and the present appeal is filed by the brother of the deceased. She submitted that the brother cannot be considered as dependent and,
therefore, is not liable to seek compensation.",
6.2. She further submitted that the Tribunal has rightly exonerated the respondent no.2 Insurance Company on the ground that the claimants have,
failed to bring on record the particulars of Insurance Policy. She objected to the submission of Mr. Modi that the panchnama being proved on record,
by giving exhibit 76, the factum of policy bearing No.14250/ 110 / 00000/30/85/10873 being valid upto 6.12.1986, is sufficient proof to fasten liability to",
compensate the original claimants. She invited attention of this Court to the evidence which has been brought on record by the original claimants and,
submitted that accident is of the year 1986. The evidence was recorded before the Tribunal in the year 2009. All throughout these years, the claimants",
have been given sufficient opportunity and burden was upon the claimants to prove the fact that the respondent no.2 was liable to pay compensation.,
6.3. She invited attention of this Court to the affidavit dated 5.5.2009 filed by one Mr. Bipinchandra Shah-Assistant Mananger of Oriental Insurance,
Company who has declared before the Tribunal that no policy was available with their office in respect to the offending vehicle as on date of accident.,
She further submitted that generally the record is maintained for 10 to 15 years and Insurance Company cannot be burden of placing on record policy,
which is otherwise not with the Insurance Company.,
6.4. She further referred to and relied upon the provisions of Code of Civil Procedure and submitted that as per the provisions of law, it is the duty",
casted upon the appellants to give details of such evidence at the stage of submitting application before the Tribunal and considering the fact that two,
decades have expired, the Insurance Company cannot be expected to bring the record which is otherwise not available with the Insurance Company.",
7.0. In rejoinder, Mr. Hiren Modi, learned advocate for the appellants has objected to such stand of the Insurance Company and submitted that at the",
stage of filing of claim petition the claimants cannot be expected to produce the copy of the Insurance Policy which is otherwise a document executed,
between the owner of the vehicle and the Insurance Company. He submitted that the claimants who are heirs and legal representatives of the,
deceased are “third partyâ€. He further submitted that the prima facie material in the nature of policy number and date on which the said policy,
was in force has been brought on record by way of panchnama as evident from the panchnama itself. In these circumstances, the Insurance",
Company was under duty to disclose the particulars of the Insurance Policy.,
8.0 In support of his submission, Mr. Modi has relied upon the decision of this Court in the case of New India Assurance Company Limited vs.",
Nuriben Wd/o Abdulbhai Jamalbhai Badarpura and others rendered in First Appeal No.733 of 1990 dated 09.08.2007. He invited attention of this,
Court to the facts of the aforesaid case as reproduced in para 3 of the said judgment and submitted that in similar case where the positive evidence in,
the form of panchnama prepared on the spot which contains the name of the Insurance Company and particulars of policy being noticed, the",
Insurance Company having not produced on record the register of policy or register containing number and details of the insured and the period of,
validity of such policy, this Court has upheld the decision of the Tribunal of holding Insurance Company liable. He further relied upon the decision of",
the Hon’ble Supreme Court in the case of Pappu and Ors vs. Vinod Kumar Lamba and others reported in 2018 ACJ 690. He invited attention of,
this Court to the facts of the case and submitted that in a case the driver was holding valid license and the Tribunal having allowed the claim petition,",
passed an order of pay and recover, the appeals were disposed of accordingly.",
9.0. Responding to the aforesaid judgment relied upon by the learned advocate for the appellants- claimants, Ms. Rahevar, learned advocate for the",
Insurance Company relied upon two decisions.,
9.1 She invited attention of this Court to the order passed by this Court in First Appeal No.2265 of 2007 and other allied appeals in the case of United,
India Insurance Company Limited vs.Vankar Manguben Mulabhai and others dated 10.12.2008. She referred to and relied upon para 7 & 8 of the,
judgment and submitted that the Insurance Company cannot be held liable unless the claimant and owner have brought satisfactory evidence that the,
vehicle was insured with the Insurance Company whereby premium was paid and period of insurance covered by the policy i.e. on the date of,
accident, policy was in existence. It is only when these facts are proved by the claimant or owner before the Tribunal, the Insurance Company can be",
fastened with the liability to pay compensation to the claimant.,
9.2 She further relied upon the decision of the Hon’ble High Court of Allahabad High Court in the case of Smt. Mamata Soni & Ors vs. Union of,
India rendered in First Appeal From Order No.43 of 2005 dated 8.8.2019 for the proposition of law that the contents of panchnama are not the,
substantive evidence. The substantive evidence is a piece of evidence which is proved by examining the panchas or the person concerned who enters,
into the witness box. She, therefore, submitted that merely a panchanma being exhibited does not prove the contents thereof to be read as a evidence.",
She further submitted that claimants having failed to examine the panchas or investigating officers in the witness box, the panchnama does not takes",
place of the substantive evidence, more particularly, does not itself be treated as satisfactory evidence as against bringing on record the policy of the",
Insurance Company as on the date of accident. She, therefore, urged to dismiss the present appeal.",
9.3 It would be required to be noted that in the case of Vankar Manguben ( supra), this court was examining whether the Tribunal committed error by",
not framing separate issue when insurance company has specifically contend in their written statement that the vehicle in question being goods vehicle,",
no insurance policy was brought on record. However, it appears that the Tribunal without examining by framing separate issue, straight way",
proceeded to held insurance company liable. It is in this peculiar facts of the case, the Court held so. Thus, in my opinion this Court has held in the",
facts of the case, whereas in the present case the Tribunal has without appreciating the secondary evidence which has been brought on record in the",
form of panchnama has been ignored. As regards the second decision relied upon by Ms. Rahevar in the case of Mamata Soni ( supra) is concerned,",
in my opinion the said decision will not come to aid of the respondent Insurance company for the reasons which I am going to assign and for the fact,
that this was a case where the Court find that evidence of eye witness could not have been discarded on the basis of the contents of the panchanama,
particularly when no question was asked in regard to the statement recorded in the Panchnama during course of cross examination.,
10. Having considered the aforesaid submissions being made by the learned advocates for the respective parties, the only issue which falls for",
consideration of this Court is as to whether the Tribunal committed any error in passing the impugned judgment and award. While answering the,
aforesaid issue, three aspects are required to be looked into. First point of determination, which is required to be examined is with regard exoneration",
of the respondent no.2-Insurance Company from its liability to pay compensation to the original claimants. I have carefully gone through the Record,
and Proceedings of the original claim petition as well have also examined the impugned judgment and award.,
10.1. It is a settled proposition of law that in motor accident cases, the terms of the insurance policy for the purpose of imposing liability cannot be lost",
sight of. Undoubtedly, an insurance policy is one kind of contract entered upon between insured and insurer where the owner of the vehicle insured",
and the insurance company were ""ad idem"" on the liability undertaken. It would be appropriate at this stage to remind ourselves that the Motor Vehicle",
Act, 1939 has intervened to make the insurance against third party liability compulsory and to prescribe the statutory limits. The relevant provisions",
which requires attention are thus :,
“95. Requirements of policies and limits of liability.â€" (1) In order to comply with the requirements of this Chapter, a policy of insurance",
must be a policy which:--,
(a) Is issued by a person who is an authorized insurer or by a co-operative society allowed under section 108 to transact the business of an insurer;,
and,
(b) Insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred,
by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place in Pakistan,
or in a reciprocating territory: Provided that a policy shall not required:--,
(i) To cover liability in respect of the death, arising out of and in the course of his employment, of the employee, of a person insured by the policy or in",
respect of bodily injury sustained by such an employee arising out of and in the course of his employment, other than a liability arising under the",
Workmen’s Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee:--",
(a) Engaged in driving the vehicle; or,
(b) If it be a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle; or",
(c) If it be a goods vehicle, being carried in the vehicle, or",
(ii) Except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of contract of,
employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the",
vehicle at the time of the occurrence of the event out of which a claim arises; or,
(iii) To cover any contractual liability.,
(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident upto the following",
limits, namely:--",
(a) where the vehicle is a goods vehicle, a limit of twenty thousand rupees in all, the liabilities, if any, arising under the Workmen’s Compensation",
Act, 1923, in respect of the death of, or bodily injury to employs other than the driver being carried in the vehicle being limited to six such employees;",
(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, in",
respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees; and in respect of passengers a limit of twenty",
thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers",
excluding the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers",
excluding the driver;,
(c) where the vehicle is vehicle of any other class the amount of the liability incurred.,
(4) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the,
policy is effected a certificate of insurance 2 [* * *] in the prescribed form and containing the prescribed particulars of any conditions subject to which,
the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed, in different cases.",
(5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the",
person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those,
classes of persons.,
96. Duty of insurers to satisfy judgments against persons insured in respect of third party risks.â€",
(1) If, after a certificate of insurance 3 [******] has been issued under sub-section (4) of section 95 in favour of the person by whom a policy has",
been effected, judgment in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 95 (being",
a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled",
to avoid or cancel or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section pay to the person entitled to",
the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he was the judgment -debtor in respect of the liability,",
together with any amount payable in respect of costs and any sum payable in respect of interest of that sum by virtue of any enactment relating to,
interest on judgments. 1 Omitted by the Motor Vehicles (Amdt.) Act, 1947 (XXVII of 1947).",
2 Certain words omitted, ibid. 3 Certain words omitted by Motor Vehicles (Admt.) Act, 1947 (XXVII of 1947). (2) No sum shall be payable by an",
insurer under sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given,
the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon",
pending an appeal; and insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to,
defend the action on any of the following grounds, namely:--",
(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and",
that either certificate of insurance was surrounded to the insurer or that the person to whom the certificate was issued has made an affidavit stating,
that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident the insurer has",
commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105; or,
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--",
(i) a condition excluding the use of the vehicle;(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not",
covered by a permit to ply for hire or reward;,
(b) for organized racing and speed testing; or,
(c) for a purpose not allowed by the permit under which the vehicle is used where the vehicle is a public service vehicle or a goods vehicle; or,
(d) without side-car being attached, where the vehicle is a motor-cycle; or (ii) a condition excluding driving by a named person or persons or by any",
person who is duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification;",
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or",
(e) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in,
some material particular. 1 [(2-A) Where any such judgment as is referred to in sub-section (1) is a foreign judgment and is, by virtue of the provisions",
of section 13 of the Code of Civil Procedure, 1908 (V of 1908), conclusive as to any matter adjudicated upon by it, the insurer (being an insurer)",
registered under the Insurance Act, 1938 (IV of 1938J), shall be liable to the person entitled to the benefit of the decree in the manner and to the",
extent specified in sub-section (1) as if the judgment were given by a Court in Pakistan:,
(3) Where a certificate of insurance 2 [******] has been issued under sub-section (4) of section 95 to the person by whom a policy has been effected,",
so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions other than those in clause (b),
of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub-section (1) of section 95, be of no",
effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue,
only of this sub-section shall be recoverable by the insurer from that person. 1 Inserted by Motor Vehicles (Admt.) Act, 1947 (XXVII of 1947). 2",
Certain word omitted, ibid.",
(4) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the,
amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be",
entitled to recover the excess from that person.,
(5) In this section the expression “material fact†and “material particular†mean, respectively, a fact or particular of such a nature as to",
influence the judgment of prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the",
expression “liability covered by the terms of the policy†means a liability which is covered by the policy or which would be so covered but for the,
fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy.,
(6) No insurer to whom the notice referred to in sub-section,
(2) or sub-section (2-A) has been issued shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment as is referred to,
in sub-section (1) or sub-section (2-A) otherwise than in the manner provided for in sub-section (2)…….â€,
10.2. Section 96(1) provides that if, after a certificate of insurance has been issued under Sub-section (4) of Section 95 in favour of the person by",
whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1)",
of Section 95 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the",
insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to",
the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he was the judgment debtor, in",
respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any",
enactment relating to interest on judgments. This provision clearly limits the liability of the insurer to that covered by the terms of the policy, in other",
words, to the sum assured either equal to or in excess of the statutory limit. Sub-section (2) of Section 95 prescribes the limits of liability an insurance",
policy is to cover, subject to the proviso to Sub-section (1). The limit of liability of the insurer under Section 95(2)(a) can be enhanced by any contract",
to the contrary. Therefore, we have to see whether the contract of insurance entered into between the appellant-insurer and the respondent-owner",
provided for payment of enhanced amount in case the owner of the vehicle involved in an accident is required by the award to pay any higher amount,
as compensation. It is, as we have seen, open to the insurer to cover the risk up to a higher extent than the statutory limit, and if he does, the liability",
would be determined in terms of the risk so covered.,
10.3 Then comes the question, whose burden it is to prove the amount assured or liability undertaken ? The contract of insurance being a contract",
uberrimae fidei, both the minds had been ""ad idem"" on the liability and both must be presumed to be aware of it. The original policy is expected, as a",
matter of practice, to be with the assured.",
10.4 The question on whom as between the assured and the insurer, the burden lies to prove the terms of the policy will depend on the facts and",
pleadings of each case. Under Section 102 of the Indian Evidence Act, the burden of proof in a suit or proceeding lies on that person who would fail if",
no evidence at all were given on either side.,
10.5 The burden of proof in any particular case depends on the circumstances in which the claim arises. The rule is ei qui affirmat, non ei qui negat,",
incumbil probatio. It is just that he who invokes, the aid of law should be the first to prove his case ; and in the nature of things, a negative is more",
difficult to be established than an affirmative.,
However, as applied to judicial proceedings, the phrase ""burden of proof"" has two and frequently confused meanings. (1) The burden of proof as a",
matter of law and pleading and the burden, of establishing a case whether by preponderance of evidence or beyond reasonable doubt ; and (2) the",
burden of proof in the sense of introducing evidence. The burden of proof on the pleading, i.e., of establishing a case, rests upon the party, whether",
plaintiff or defendant, who substantially asserts the affirmative of the issue. It remains unchanged throughout the trial where the pleadings place it.",
The burden of adducing evidence may shift constantly, according as one scale of evidence or the other preponderates. The onus probandi in this sense",
rests upon the party who would fail if no evidence at all, or no more evidence, as the case may be, were given on either side. In other words, it rests,",
before evidence is gone into, upon the party asserting the affirmative of the issue ; and it rests, after the evidence is gone into, upon the party against",
whom the Tribunal, at the time the question arises, would give judgment if no further evidence is adduced. The burden of proof may be effected by",
statutory provision and this frequently is the case as to matters within the knowledge of a party.,
10.6 In the case on hand, in so far as the statutory liability is concerned, this court finds that applying the aforesaid principle of evidence law, the",
burden of proof placed on plaintiff to establish his case has primarily being established even by bringing on record the panchnama through which the,
policy details have been brought on record. As against that the defense raised by the insurance company of being not covered, has failed to lead any",
evidence. In absence of any evidence to lead, in my opinion the insurance company cannot shy away from it’s statutory liability to indemnify the",
insured.,
10.7.The claimants have produced three sets of list of documents. The complaint of the accident has been lodged by one Vinubbhai Talshibhai Koli,
who had accompaned the deceased and was walking along with him on the side of the road. The said complaint has been produced at Exh.75. From,
bare reading of the said complaint, it transpires that the deceased was hit from behind while he was walking on the side of the road by Luxury Bus",
bearing No. GTK 3001. The deceased died on the spot because of the injuries sustained. The original claimants have brought on record the,
panchnama of the spot vide Exh.76.The panchnama has been drawn by the concerned police station in respect of FIR registered. The dead body of,
the deceased and Luxury Bus was found on the spot. The particulars of the insurance policy has been referred by the Investigating Officer in the said,
panchnama wherein the name of the present respondent no.2 Insurance Company with the certificate no. No.14250/110/ 00000/ 30/ 85/10873 has,
been mentioned. It is stated to be valid upto 6.12.1986. The postmortem report of the deceased has also been brought on record vide Exh. 77 where,
the cause of death of deceased is shown as hemorrhage and shock due to rupture of liver, kidney and spleen. At the same time, I have also gone",
through the affidavit of the Assistant Manager of respondent no.2- Insurance Company which is produced vide Exh.83. Upon bare reading of the,
content of the affidavit, it transpires that the Assistant Manager has tried to offer explanation as regards attempts being made to trace out the original",
policy. Thus, the respondent no.2 Insurance Company has raised a defence that in absence of the particulars of the Insurance Policy being brought on",
record, the respondent no.2-Insurance Company is required to be exonerated. It is undisputed fact that the respondent no. 3 owner of the vehicle is",
held liable for the accident. In absence of any challenge being made by filing separate appeal, the same has attained finality. The panchnama which",
has come on record has not been questioned by the Insurance Company while cross-examining the original claimants. In these circumstances, the",
claimants have been successful to establish the fact that the deceased had succumbed to the injuries caused in the accident resulting from the,
negligency of the opponent no.1 involvement of the vehicle and that the said vehicle was insured with the respondent No.3 Insurance Company. The,
whole object of producing original insurance policy is mainly for the purpose to satisfy the factum of insurance cover as on the date of accident and,
liability to be fastened on the Insurance Company. In the given case, involvement of the vehicle is not in question. The fact that the policy cover is",
valid utpo 6.12.1986 has been established on record, as against date of occurrence of accident which has taken place on 14.6.1986. In my opinion, the",
original claimants have brought satisfactory evidence on record to establish the fact that vehicle was insured with the respondent no.2 Insurance,
Company which was valid upto 6.12.1986.,
11.0.The only question which is required to be looked into is the fact that whether the insurance cover was in the nature of “Act Policy†or was,
comprehensive in nature. In my opinion, once the insurance cover of the vehicle is established, the Court can always pass order of fastening such",
liability subject to order pay and recover, in a given case from the owner of the vehicle.",
11.1 Undoubtedly, the Court cannot go beyond statutory liability and proceeds to impose liability on insurance companies as the insurance assumes",
contractual character and the normal rules will apply.,
11.2 At this stage, it would be appropriate to look into certain provisions of evidence law. Section 106 of the Indian Evidence Act, thus reads as :",
when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.""",
11.3 The insurance liability is within the knowledge of both the assured and the insurer. Here the claimants got a notice issued to the insurer to,
produce the policy but the latter could not produce the policy. In absence of production of the Policy, the Tribunal has directed the entire amount to be",
paid by the owner and driver. On the other hand the policy being not produced on record whether it being act policy or comprehensive is not,
established and on the other hand there is no material to show that it did not cover any enhanced liability. Even before the Tribunal the Insurer had the,
opportunity to lead their evidence by producing the policy, but they could not produce the same.",
12. In Chandro Devi & Ors. Vs. Jit Singh & ors. , reported in 1989 ACJ 41 the Delhi High Court held that in the absence of proof of the insurance",
policy by the insurance company it shall be presumed that the liability of the insurance company is unlimited. Relevant para of the said decision reads,
as under:-,
The insurance company must prove that the policy in question is the “Act only†policy. The amount mentioned by the statute is the",
minimum amount. But the policy can always cover higher risk to third party by taking additional premium. It is obligatory on the part of the,
insurance company to prove the insurance policy and its terms and conditions. In a number of decisions by this court, it has been held that",
where the insurance company has to produce the insurance policy or prove the same in accordance with law, then, it shall be presumed that",
the liability of the insurance company is unlimited. As I have already held that the insurance company has failed to prove the insurance,
policy in accordance with law, so I hold that the liability of the insurance company is unlimited in the present case.""",
13. Even in the case of National Insurance Co. Ltd. Vs. Jugal Kishore, reported in 1988(1) SCC 626, the Hon’ble Supreme Court emphasised the",
obligation on the part of the insurer to produce a copy of the insurance policy before the Court. The Supreme Court in the aforementioned case held,
as follows :,
“10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies,, as was",
adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this",
connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a,
copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be,
helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract,
doctrine of burden of proof. This duly is greater in the case of instrumentalities of the State such as the appellant who are under an,
obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a,
copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in,
a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence.,
Even in the instant case, had it been done so at the appropriate state necessity of approaching this Court in civil appeal would in all",
probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in",
doing justice between the parties. The obligation on the part of the State or its instrumentalities to at fairly can never be over-emphasised.â€,
14. Thereafter, in the case of Tejinder Singh Gujral vs. Inderjit Singh & Anr., (2007) 1 SCC 508, the Hon’ble Supreme Court held thus :",
“The learned Tribunal, however, committed an error in opinion that the insurance policy was not required to be proved. Learned Single",
Judge of the High Court, in our opinion, rightly held that the insurance policy having not brought on records, a presumption would arise",
that the liability of the insurer was unlimited. â€,
15. In view of the aforesaid decisions, I am of the opinion that the respondent Insurance Company was under obligation to produce the complete",
office copy of the insurance policy so as to make it admissible under section 63 of the Evidence Act. In the event it is found by the appellant that its,
liability was confined to the statutory liability in view of the policy of the insurance, it can take recourse to recover the rest of the amount from the",
owner of the vehicle in terms of Section 96(4) of the M.V. Act.,
16. Second on fact, the Tribunal has pronounced to exonerate opponent No.1 driver of the luxury but by observing that no evidence is lead by the",
claimants against the opponent No.1. However, while answering issue No.1, the Tribunal after discussing evidence has held the opponent No.1",
negligent for the accident. Thus, in my opinion, the Tribunal committed error in exonerating the opponent No.1 from liability.",
17. So far as third contention raised with regard to the enhancement of compensation is concerned, while going through the computation of award",
under the different heads, it appears that the Tribunal has not committed any error deducting half of the amount by considering dependency benefit",
Particulars,Amount (Rs.)
Loss of dependency,"1,44,000/-
Loss of Estate,"15,000/-
Loss of Consortium,"40,000/-
Funeral Expenses,"15,000/-
Total,"2,14,000/-
the award amount within a period of two months from the date of receipt of the present order, which shall be deposited before the concerned",
Tribunal. The Tribunal shall be at liberty to pass order of disbursement on deposit of such amount. Thus, appeal is partly allowed. Registry is directed",
to transmit back the Record and Proceedings to the concerned Tribunal forthwith. No costs.,
