FAO No. 4716 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 4716 of 2009 (O&M) Date of decision: 11.1.2010 Dharamveer Singh and another .. Appellants v. New India Assurance Company Ltd. and another ..Respondents. CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Mohd. Yusuf, Advocate for the appellants. Mr. Vivek Singal, Advocate for respondentNo. 1. Mr. Ashwani Arora, Advocate for respondent No. 2. ... Rajesh Bindal J. Reply to the application under Order 41 Rule 27 CPC filed in court today is taken on record. Challenge in the present appeal is to the award dated 17.3.2009, passed by the Motor Accidents Claims Tribunal, Patiala, (for short, `the Tribunal'), whereby on account of an accident of a Trolla No. UP-17B-1452, owned by Dharamveer Singh (appellant No. 1) and driven By Mohmad Murtja (appellant No. 2), the Tribunal awarded a sum of Rs. 4,90,000/- as compensation to respondent No. 2-Inderjit Singh. The Insurance Company was absolved of the liability on account of the fact that the appellants had not been able to prove on record the insurance of the vehicle with respondent No. 1. Learned counsel for the appellants submitted that the appellants had engaged an Advocate to represent them before the Tribunal, however, after putting in appearance initially, he did not take care of the case and as a result of which they were proceeded against ex parte and, therefore, the insurance policy could not be proved. They were never intimated by the counsel about the dates of hearing and the requirement of evidence to be led by them. They being residents of Muzaffar Nagar (Uttar Pradesh) remained under the belief that the counsel will take care of the case diligently. Along with the appeal, application for leading additional evidence has been filed placing on record the receipt showing payment FAO No. 4716 of 2009 [2] of insurance premium to the authorised agent, namely, Indusind Bank Ltd. Saharanpur, for which, according to learned counsel for the appellants, even a cover note was also issued. He further submitted that even in the cross- examination of RW1-M. Rama Chandaran, Senior Divisional Manager of the Insurance Company, he admitted that the cover note contained signatures of the earlier Senior Divisional Manager of the Company. The said cover note was marked as `RX'. However, in the absence of any clinching evidence on record regarding insurance of the vehicle, the entire liability was put on the appellants and the Insurance Company was absolved of the liability, whereas in fact, there is sufficient material to prove that the amount of premium was paid to the authorised agent of the Insurance Company. In case there is any miscommunication or non- deposit of the premium or the cover note by the agent to the Insurance Company, the insured cannot be made to suffer. On the other hand, learned counsel for the Insurance Company submitted that the appellants in the present case having failed to discharge the onus on them regarding the insurance of the vehicle and the company having not issued the policy and there being no evidence showing the payment of premium to the agent, the Insurance Company cannot be made liable to pay the compensation. Learned counsel for respondent No. 2 submitted that it is a dispute inter-se between the owner of the vehicle and the Insurance Company, whereas the claimant has not been paid even a single penny. He further submitted that this Court had directed the appellants to deposit a sum of Rs. 2,00,000/- on 12.11.2009, which was deposited by the appellants on 13.11.2009 and the same is lying in the Registry of this Court, besides Rs. 25,000/- deposited by the appellants at the time of filing of the appeal. At least this amount deserves to be disbursed to respondent No. 2-claimant and further the appellants should be directed to pay the entire compensation and recover the same from the Insurance Company in case ultimately, they are found entitled to the same. After hearing learned counsel for the parties, in my opinion, the impugned award passed by the Tribunal deserves to be set aside to the extent it fixes liability of the appellants on account of insurance policy having not been proved on record and the matter remitted back to the Tribunal for fresh consideration with regard to liability of the Insurance Company by permitting the appellants to lead evidence regarding the insurance of the vehicle, for which the claim is that the amount of premium was paid to the duly authorised agent of the Insurance Company, namely, Indusind Bank, which was duly recorded in its accounts books. The appellants were even issued a receipt for payment of the FAO No. 4716 of 2009 [3] premium. A cover note was also issued, which was duly signed by the authorised officer of the Insurance Company. Copies of documents, referred to above, along with application for additional evidence prima facie establish the claim. The same could not be proved on record on account of the fact that the stand of the appellants is that their counsel did not take care of the case diligently, though engaged by them. The Insurance Company may also rebut the evidence, which may be led by the appellants showing the insurance of the vehicle. Let the parties appear before the Tribunal on 6.2.2010 for further proceedings. As far as payment of amount to respondent No. 2-claimant is concerned, sum of Rs. 2,00,000/- deposited by the appellants in terms of the order passed by this Court on 12.11.2009 and further Rs. 25,000/- deposited along with the appeal shall be disbursed by Registry of this Court to respondent No. 2 by way of a demand draft payable at Rajpura. The appeal is disposed of in the manner indicated above. (Rajesh Bindal) Judge 11.1.2010 mk