( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ FIRST APPEAL NO.273 OF 1990 FIRST APPEAL NO.273 OF 1990 FIRST APPEAL NO.273 OF 1990 The New India Assurance Co. Ltd. ..Appellant V/s. 1. Shri Dhiraj M.Chedda 2. Shri Makbool Ahmed Patel 3. Shri Mohamood Ahmed Majid 4. Shri Babu Chandrakant Gurav ..Respondents ...... Smt.Urmila K.Sanil for the appellant None for respondents ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 16th April, 2009 DATED : 16th April, 2009 DATED : 16th April, 2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. One Mr.Babu Chandrakant Gurav i.e. present respondent No.4 filed Application No.2120-A of 1987 before the learned III Additional Motor Accident Claims Tribunal, Greater Bombay for compensation in regard to the accident which had taken place on 5th April, 1987 causing the death of Chandrakant. Said Babu had joined present respondent No.1 as the registered owner of the vehicle, respondent No.2 and 3 were joined as opponent Nos.2 and 3 as a subsequent owners of the said vehicle. The present appellant was joined as opponent No.4 as Insurance Company. 2. Perusal of the judgment delivered by learned ( 2 ) Member of the III Additional Motor Accident Claims Tribunal, Greater Bombay (hereinafter referred to as the "learned Member") dated 18th July, 1989 shows that the accident in question took place on 5th April, 1987 and scooter No.MMZ-3268 had knocked the said Chandrakant causing his death. The respondent No.4 filed the application for compensation on account of the death of Chandrakant with a positive case that the said scooter No.MMZ-3268 was insured with the present appellant at the time of the accident i.e. on 5th April, 1987. The learned Member by his judgment dated 18th July, 1989 granted compensation to the respondent No.1 to the tune of Rs.46,000/- and also ordered payment of interest. The said order was passed against the original opponent Nos.2 and 3 and the present appellant in its capacity as the Insurance Company. This judgment and order dated 18th July, 1989 is challenged in this first appeal. 3. I have heard learned advocate Smt.U.K. Sanil appearing on behalf of the appellant Insurance Company. She has taken me through the entire record including the notes of evidence and exhibits in particular namely Exhibit 9 being the letter dated 5th July, 1988 received from the RTO office as well as RTO extract of scooter No.MMZ-3268 at Exhibit 19 issued by the RTO office. She had also taken me through the ( 3 ) notes of evidence and in particular evidence of employee of appellant by name Arvind Dalal. 4. On consideration of the arguments and the record, following points do arise for my determination:- (i) Whether the appellants had sold Insurance Policy to the owner of the said scooter and that the said policy was alive on 5th April, 1987 ? Ans. In the Negative. (ii) Whether any interference is required in the impugned judgment ? Ans. In the affirmative. (iii) What orders ? Ans. As per the final order. 5. With the assistance of learned advocate Smt. Sanil on behalf of the appellant, I have perused the evidence of Arvind Dalal who has produced letter from RTO at Exhibit 9 stating that the scooter No.MMZ-3268 was not insured as of 5th July, 1987. RTO extract at Exhibit 19 concerning the scooter shows that New India ( 4 ) Assurance Company has sold policy for the period 15th April, 1987 to 14th April, 1988. She had also drawn my attention to the endorsement showing that earlier the vehicle was insured with United India Insurance for the period from 5th December, 1985 to 4th December, 1986. She had submitted that RTO extract of the motor vehicle shows that the vehicle was not insured as on 5th April, 1987 with any Company whatsoever. I have perused the documents at Exh.9 and 19. It is clear that the vehicle was not insured with the appellant as of 5th April, 1987 i.e. date of the accident. If this is so, the appellant cannot be made liable to pay compensation to respondent No.4. 6. In this connection, one will have to refer to the impugned judgment. At paragraph 9, the learned Member has arrived at a peculiar conclusion saying that the Insurance Company should have produced record and shown that the vehicle was not insured with them. He came to the conclusion that the Insurance Company is not helping the Court and ultimately held the Insurance Company liable. The reading of paragraph 9 of the impugned judgment shows that the learned Member did not take into consideration the two documents namely document at Exh.19 and document at Exh.9 which clearly show that the appellant had not sold any Insurance Policy to the owner of the said scooter. ( 5 ) The appellant had examined Arvind Dalal who produced the document at Exh.19 i.e. RTO extract. He has also specifically given evidence that after checking up all the record, he found that the concerned scooter was not insured with the Insurance Company. It is difficult to understand as to what more was required to be placed before the Court by the Insurance Company to say that they had not sold the policy to the owner of the said scooter. The observations of the learned Member at paragraph 9 cannot be accepted in the wake of the aforesaid record. If this is be so, granting compensation to the respondent No.4 and making the appellant liable to pay the compensation was wrong. Hence, the impugned judgment is required to be set aside and that the appeal will have to be allowed. In view of the aforesaid observations, point No.1 will have to be answered in the negative and point No.2 will have to be answered in the affirmative. 7. For the reasons mentioned aforesaid, the first appeal is disposed of by passing following order. ORDER ORDER ORDER . The first appeal is allowed. The judgment and order dated 18th July, 1989 passed by III Additional Motor Accident Claims Tribunal, ( 6 ) Greater Bombay as against the appellant is set aside. . In the facts and circumstances of the case, there shall be no order as to costs. . If any amount is deposited by the appellant and if it is not paid to respondent No.4, the Court in which the said amount is deposited shall repay the amount to the appellant. . If the amount is already invested in the fixed deposit, the interest accrued thereon shall also be paid to the appellant. If the amount deposited by the appellant is paid to any person, the appellant is free to take steps to recover the same on the basis of this judgment. . In view of the dismissal of the first appeal No.273 of 1990, the Civil Application No.2221 of 1990 is disposed of with no order as to costs. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)