THE HONOURABLE SRI JUSTICE P. SWAROOP REDDY C.M.A.No.1238 OF 1998 JUDGMENT: This civil miscellaneous appeal is filed against the Judgment and Decree in M.O.P.No.425/93 dated 31.01.1998 passed by the learned II Additional District Judge, Visakhapatnam. 2. Heard the learned counsel for the appellant. 3. The brief facts are as follows: On 24.12.1992 at about 10.50 a.m., while the petitioner was traveling in an auto bearing No.AEV 2883 in order to go to railway hospital situated at Dondaparthy from Mukund Railway Quarters at Thatichetlapalem, the driver of the auto drove it in a rash and negligent manner and lost control, on account of which, the auto turned turtle and the petitioner received grievous injuries, i.e. fracture of both bones of left hand and also dislocation of the same apart from injury on the left eye. The petitioner was shifted to railway hospital. The petitioner was working as a teacher in Little Garden School, Kotha Road, Visakhapatnam, earning Rs.1400/- per month. On account of the accident, the petitioner became permanently disabled. She took bed rest for six months. On account of the accident, she lost her employment and the prospectus of her marriage are affected. Therefore, she claimed compensation of Rs.80,000/-. The second respondent-insurance company denied the allegations in the petition and disputed about the vehicle involved in the accident being insured with the company. The first respondent filed a counter denying the allegations in the petition. Basing on the allegations and the counter allegations, the trial Court framed the following three issues: 1. Whether the accident occurred due to rash and negligent driving of driver of Auto AEV 2883? 2. Whether the petitioner is entitled for compensation, if so, for how much? 3. To what relief? On behalf of the petitioner, the petitioner herself was examined as P.W.1 and Exs.A1 to A4, FIR, copies of wound certificate, charge sheet and salary certificate were marked. On behalf of the respondents, R.W.1 was examined and Exs.B1 to B3, cover note of insurance policy of LML Vespa Scooter, Insurance policy and cover note and reply were marked. 4. On the basis of the material on record, the trial Court came to the conclusion that the petitioner was entitled for compensation of Rs.30,000/- and the second respondent- insurance company is liable for the same. 5. In this C.M.A., the quantum of compensation is not seriously disputed by the appellant-insurance company. The main contention is that the vehicle involved in the accident was not at all insured with the second respondent. 6. Thus, the only point that arises for consideration is, whether the vehicle auto bearing No.AEV 2883 involved in the accident was insured with the second respondent-insurance company as on the date of accident? 7. On behalf of the petitioner, no material is filed to show that the vehicle was insured with the second respondent-insurance company. On behalf of the respondents, Exs.B1 to B3 are filed. R.W.1, the insurance official, in his evidence has stated that Ex.B1 cover note number 129282 was issued for a vehicle LMPL Vespa with chasis number mentioned in it and the vehicle involved in the accident was not that vehicle and Ex.B3 cover note confirm the same. 8. The learned trial Judge did not dispute that Exs.B1 and B3 do not show that the vehicle involved in the accident was insured with the second respondent-insurance company, but held that this plea was not specifically taken in the counter and that those could have been fabricated subsequently. This approach of the learned Judge is not appropriate. As seen from the counter, though it is not specifically stated that the vehicle is not insured with the appellant-second respondent, it is stated that there is no material to show the same and the fact of the vehicle being insured is in dispute. Then, the burden lies on the petitioner- appellant to prove that the vehicle was insured with the second respondent-insurance company, for which she has not taken any steps at all. On the other hand, the material produced on behalf of the insurance company Exs.B1 to B3 would show that the vehicle was not insured with the second respondent. In such circumstances, the presumption of the learned Judge that Exs.B1 to B3 might have been fabricated is unwarranted. The decision relied on by the learned trial Judge reported in MOHD.IBRAHIM AND ANOTHER v. THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, NEW DELHI AND OTHERS[1] is not totally applicable to the present case. 9. In these circumstances, it has to be held that the vehicle involved in the accident was not insured with the second respondent-insurance company. Consequently, it has to be held that the second respondent is not liable for the compensation. Accordingly, it is held that the second respondent is not liable for the compensation awarded. 10. The appeal is accordingly allowed with costs. ______________________ P. SWAROOP REDDY, J. 14th June 2010, Rns [1] 1996(2) A.L.T. Page 950(DB)