1 S.B. Civil Miscellaneous Appeal No.1620 of 1999. S.B. Civil Miscellaneous Appeal No.1622 of 1999. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T 1. S.B. Civil Miscellaneous Appeal No.1620 of 1999. Smt. Amrit Marwari wife of Shri Ghanshyam Marwari VERSUS Shri Ghanshyam Marwari son of Shri Bhanwar Lal Marwari & Another. 2. S.B. Civil Miscellaneous Appeal No.1622 of 1999. Smt. Amrit Marwari wife of Shri Ghanshyam Marwari VERSUS Shri Ghanshyam Marwari son of Shri Bhanwar Lal Marwari & Another. Date of Judgment :::: 21st November, 2009. Hon'ble Mr. Justice Dalip Singh Mr. K.N. Tiwari, Counsel for the Claimant-appellant Mr. A.K. Bhandari, Senior Counsel, assisted by Mr. Rizwan Ahmed, Counsel for the Respondents *** By the Court : Heard learned counsel for the parties and perused the record as well as the award of the learned Tribunal. These two miscellaneous appeals, under Section 173 of the Motor Vehicles Act, 1988, have been preferred against the award passed by the learned Motor Accident 2 S.B. Civil Miscellaneous Appeal No.1620 of 1999. S.B. Civil Miscellaneous Appeal No.1622 of 1999. Claims Tribunal, Jaipur in Claim Cases No.1253/1996 and 1252/1996 decided on 27.07.1999. In both these miscellaneous appeals, the learned counsel for the claimant-appellants has contended that the insurance-company (respondent No.2) has been exonerated on the ground that the insurance-company has not issued a comprehensive insurance policy so as to cover the risk of the passengers since the deceased and injured were traveling in the vehicle, which met with the accident. Learned counsel appearing for the respondents fairly conceded that had it been the case of comprehensive insurance policy, the risk of the passengers of the vehicle would have been covered, but in the instant case, the policy is not that of comprehensive insurance and, therefore, the risk of the passengers traveling in the vehicle was not covered and the insurance company was not liable to pay the compensation amount on behalf of the insured to the claimants. Since, the question involved is a short one, the whole crux of the matters lies on the adjudication as to whether the policy of the insurance in the instant case Exhibit-11 is a comprehensive insurance or not. In the instant case, only the Cover-Note (Exhibit-11) has been filed by the claimants and the policy as such has not been produced. A look at the pleadings in the instant case go to 3 S.B. Civil Miscellaneous Appeal No.1620 of 1999. S.B. Civil Miscellaneous Appeal No.1622 of 1999. show that the claimants had arrayed the insurance company (United India Insurance Company Limited) as non-claimant No.2 to the claim petition. In Para 27 of the claim petition, it was averred as follows : .....यह Ǒक ǒवप¢ी संÉ या एक कार नं. आर जे 14 सी 3367 का चालक व मािलक था तथा जो वÈ त दघ[टना ु कार को चला रहा था । ǒवप¢ी संÉ या दो उÈ त वाहन कȧ बीमा कà पनी है कार मɅ बैठे हये å यǔÈ तयɉ का बीमा ु Ǒकया हआ है इस कारण ¢ितपूित[ हेतु उ× तरदायी हɇ। ु ". In reply to the above, the respondent No.2– insurance-company filed its reply. In the reply to the pleadings in Para 27, it was stated by the insurance company- respondent No.2 as follows : "...यह Ǒक ूाथ[ना पऽ कȧ चरण संÉ या - 27 मɅ अंǑकत समः त तØ य £ान के अभाव मɅ अः वीकार है । ूाथȸया अपना प¢ ः वयं समुिचत साआ य Ʈारा ूमाǔणत करɅ।". The claimant in the claim petition, which was filed under Section 163-A of the Motor Vehicles Act, 1988 the number of the cover-note was disclosed by the claimants as No.0188-04 in the cause-title itself and the branch of the insurance company from where the said policy was taken namely; Sanganer Branch (Jaipur) was also stated. Thus it 4 S.B. Civil Miscellaneous Appeal No.1620 of 1999. S.B. Civil Miscellaneous Appeal No.1622 of 1999. would be possible for the insurance company to detect and trace the policy, in question and tender it in evidence. As has been stated above, the claimants have filed in their evidence, the Cover-Note as Exhibit-11, which bears the aforesaid number i.e. 0188-04 issued by the respondent No.2 – insurance company. This was admitted by the respondent– insurance company and bears the remark “admitted”. It may be noted here that the respondents, in-spite of the discloser of the number of the cover-note and and name of the branch of the insurance company, which issued the said policy did not lead any evidence nor produced the policy in evidence and on the contrary admitted the cover-note, which was tendered in evidence, which discloses that it is not merely a third party coverage nor an Act only coverage and additional premium has been charged by the insurer. In case the respondents wanted to dispute and the authenticity of the cover-note and in the light of the averments made in Para 27 of the claim petition since the claimant had specifically averred that the premium in respect of passengers traveling in the Car had been paid and, therefore, the insurance company was liable, this fact had not been denied in the reply filed by the insurance company, which has been quoted, here- in-above. After the details of the insurance coverage having 5 S.B. Civil Miscellaneous Appeal No.1620 of 1999. S.B. Civil Miscellaneous Appeal No.1622 of 1999. been disclosed by the claimants, it was open for the insurance company, if it wanted to dispute the assertions of the claimant regarding payment of additional premium for covering the risk of the passengers, to have led the evidence in that behalf by producing the policy itself and proving the contents of the same by examining a responsible officer since these facts were within the special knowledge of the insurer, who had admitted the cover-note, Exhibit-11. In the instant case, the insurance company has rest contents with the aforesaid pleadings and despite the discloser of the details of the insurance coverage vide Exhibit-11 by the claimants giving the numbers of the cover-note, date of issue and the name of the branch by which it was issued and the averments made in Para 27 of the claim petition, the insurance company – respondent No.2 chose not to lead any evidence inrebuttal. In that view of the matter, the insurance company, which had taken a plea for avoiding its liability has failed to lead any evidence in support of its plea in defence. It is a settled law that the insurance company, which takes specific defence to avoid its liability despite existence of insurance cover it is under an obligations to prove the same and the burden for the same lies upon the insurance company itself to prove the said defence. 6 S.B. Civil Miscellaneous Appeal No.1620 of 1999. S.B. Civil Miscellaneous Appeal No.1622 of 1999. Having rest contents with its reply of denial and despite the cover-note being exhibited and produced by the claimants by virtue of Exhibit-11, which was admitted by the respondents during trial, the respondent insurance company could not fall back and contend that the claimant has failed to prove that the owner of the vehicle had paid additional premium for covering the risk of the passengers. This fact was within the special knowledge of the insurance company after the details of the cover-note were disclosed by the claimant and admitted by the respondent insurance company, the burden was upon the respondent no.2 as per Section 106 of the Evidence Act, which it failed to discharge. In that view of the matter, in the facts and circumstances the insurance company has failed to discharge its burden or lead evidence the defence and more particularly with regard to not having charged the premium for covering the risk of the passengers with a view to avoid its liability. In the facts and circumstances of the present case, therefore, the judgment of the learned Tribunal discharging the insurance company of its liability deserves to be set aside. Consequently, both these miscellaneous appeals to this extent are allowed. The claim, as allowed by the learned Tribunal is upheld. The claimant-appellants would be entitled to 7 S.B. Civil Miscellaneous Appeal No.1620 of 1999. S.B. Civil Miscellaneous Appeal No.1622 of 1999. recover the amount of compensation, as awarded by the learned Tribunal from the respondent No.2- insurance-company with interest @ 6% per annum with effect from the date of filing of the claim before the learned Tribunal i.e. 02.07.1996. There will be no order as to costs. (Dalip Singh), J. ashok/