1 fa300.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.300 OF 1998 1 Nawalsingh Vedu Wagh 2 Shaikh Hanif Shaikh Enam ...Appellants vs. 1 Smt.Rukminibai Anasaheb Gondkar 2 Chandrakant Annasaheb Gondkar 3 Sunil Annasaheb Gondkar 4 Deepak Annasaheb Gondkar 5 Sangita Annasaheb Gondkar 6 United India Insurance Company Ltd. 7 Bhaskar Trimbak Korde ...Respondents Mr.Niranjan A. Mogre i/b Mr.S.M.Gorwadkar for the appellants None for the respondents CORAM :A.S.OKA,J. DATE : AUGUST 26, 2010 ORAL JUDGMENT : 1 I have Heard the learned counsel for the appellants. The appellants are the opponent Nos.1 and 2 in a claim petition filed by the respondent Nos.1 to 5 under the Motor Vehicle Act,1988. 2 The allegation in the claim petition is that the 1 st appellant is the owner of the truck and the 2 nd appellant is the driver of the truck. The allegation is that driver of the truck had halted the truck in the middle portion of national highway without observing the rules and taking precautions before halting the truck. It is alleged that there was negligence on the part of the driver of the truck in not putting the lights on or not placing the guard stones on the rear side of the 2 fa300.sxw truck. The front wheel of the driver s side of the truck was punctured and that was the reason for halting the truck. The deceased was driving a jeep. The allegation is that from the opposite direction a truck came with full glaring head lights on, as a result, the jeep dashed against the rear side of the stationary truck. The deceased succumbed to injuries sustained in the accident. 3 The claim petition was contested by the appellants. They contended that the front wheel on driver side of the truck was punctured and therefore the appellant no.2 halted the truck on the left side of the road for the purpose of replacing the wheel. In short, the contention of the appellants was that there was no negligence on the part of the 2 nd appellant. The case made out by the claimants was that the truck was validly insured with the United India Insurance company Ltd. The stand taken by the 6 th respondent insurance company was of denial. The tribunal recorded a finding that the deceased himself contributed to the accident. The contribution of the driver of the truck was held to be of 25%. The tribunal accepted the case made out by the insurance company at the time of recording of evidence that the truck was not validly insured on the date of accident. 4 The learned counsel for the appellants has taken me through the notes of evidence and impugned Judgment. He pointed out that the finding on the issue of negligence against the appellants is completely erroneous. He pointed out that in fact the truck was parked on the left side of the road after taking precaution of putting the parking lights on. He submitted that no negligence can be attributed to the driver of the truck. He urged that the finding of the tribunal on the issue of insurance of 3 fa300.sxw the truck is completely erroneous. The officer deposed before the Court admitted that the cover note was verified from the record maintained by only one of the offices of the insurance company. He submitted that the certificate issued by the R.T.O was sufficient evidence of the validity of the insurance on the date of the accident and therefore, the tribunal committed a gross error by exonerating the insurance company. None appears for the respondents. 5 I have carefully considered the submissions. The first question is whether the offending truck was validly insured with the United India Insurance Company on the date of the accident. The certificate issued by the RTO relied upon by the original claimants disclosed the cover note no.620533 of the policy of the insurance and the name of the 6 th respondent as insurer. The certificate shows that on the date on which the accident occurred, the truck was insured with the 6 th respondent. The said certificate has been admitted in evidence and the same has been marked as Exhibit-53. 6 The insurance company examined one Anil Shah, Assistant Divisional Manager who was working in the Nashik Divisional Office of the said company. He stated that the cover note bearing no.620533 was of a motor cycle bearing registration no. MAN-1683 which was insured with the said company for the relevant period. He produced a certified copy of the cover note. He also produced certified copy of the cover note no.620535. He stated that the said cover note also relates to a motor cycle. He stated that the offending truck was never insured with the said company. 7 In the cross examination, he admitted that that a 4 fa300.sxw copy of the claim petition was served with a copy of RTO certificate showing that the vehicle was insured with the said company. He stated that the said certificate is at Exhibit-53 and even the said company had requested the RTO to furnish information and that RTO furnished the information stating that the first appellant was the owner of the said vehicle and same was insured with the said company. In the cross examination, he admitted that the cover note produced by him was from the office of the said company at Malegaon. He stated that there are regional offices and divisional offices of the said company. He stated that each branch has books containing cover notes. He stated that cover note book of each region is separate. He stated that in every region the separate cover note books containing separate numbers are distributed, but in Bombay region there can be a cover note bearing same number. He stated that the compensation payable under the no fault liability was deposited by the company but a letter was issued by the company to the 1 st appellant to supply particulars of the policy. He admitted that he has not placed the said correspondence on record. He admitted that Exhibit-53 shows that there was a hypothetication in favour of a finance company mentioned therein but the company has not made correspondence with the said finance company. He admitted that he did not ascertain from Mumbai regional office as to whether the cover note bearing the same number was issued by the said office . He stated that no correspondence has been made with the Regional Transport Office by pointing out that the cover note mentioned at Exhibit-53 was not in respect of the truck. He admitted that he had no knowledge whether any regional office has issued such a cover note except Malegaon office. He admitted that he was unable to state whether any regional office has insured the truck under the said 5 fa300.sxw cover note. 8 Perusal of the certificate at Exhibit-53 shows that it gives all details of the vehicle including the cover note number and name of the 6 th respondent company. However, it does not record that the cover note has been issued by a particular branch or regional office of the insurer. This is a case where the insurer accepted an Award under section 92-A of the said Act of 1939 and made payment. What is produced by the 6 th respondent is a true copy of the cover note which bore the same number as mentioned in Exhibit-53. The said cover note is issued by the Malegaon office. The witness examined by the 6 th respondent admitted that in Bombay region, there can be a cover note bearing the same number. Admittedly, he did not seek information from his Bombay regional office to ascertain whether the cover note in question was issued by the said office. Thus, the evidence of the insured at highest indicates that its Malegaon office has not issued the said cover note. There is no attempt made by the insurer to ascertain whether its Bombay regional office or any other office had issued the said cover note. The roznama of the proceedings shows that the certificate of the Regional Transport Office was exhibited without any objection. The said certificate shows that the truck was validly insured with the 6 th respondent. The evidence of the witness Anil Shah is not sufficient to show that the contents of the RTO certificate are incorrect. The important aspect that there can be a cover note of the same number issued by other regional office is not noticed by the learned Presiding Officer of the Tribunal. Therefore, the finding of the Tribunal on this aspect will have to be set aside and it will have to be held that the truck was validly insured with the said insurer. 6 fa300.sxw 9 As far as the finding regarding negligence is concerned, it will be necessary to make reference to the oral evidence led by the parties. The 2 nd witness examined by the claimants stated that the truck of the appellants was not having any reflector or indicator or tail lamp and there was no signal showing breakdown of the truck. The finding on this aspect recorded by the Tribunal will have to be considered. The tribunal has considered the position of the vehicles as reflected from the panchnama. After considering the evidence of the 2 nd witness examined by the claimants, the tribunal came to the conclusion that except for the bare words of the 2 nd appellant, there is no evidence to support the version that tail lamps of the truck were working. The finding of the tribunal is that there is absolutely no evidence to show that guard stones were kept by the 2 nd appellant. It must be noted here that the accident occurred at about 1.00 or 1.30 a.m on a national highway. It was the duty of the driver of the truck to take care especially while stopping the truck on a national highway when there was total darkness. As no evidence was adduced to show that the said duty was discharged by the 2 nd appellant, the tribunal held the 2 nd appellant responsible for the accident to the extent of 25%. It is not possible to disturb the said finding which is supported by the evidence on record. To that extent, the tribunal appears to be correct. However, the award will have to be modified by holding that the opponent no.4 United India Insurance Company Ltd will be jointly and severally liable to pay compensation along with the appellants. 10 Hence, I pass the following order : 7 fa300.sxw i) Impugned Judgment and Award is modified by directing that the original opponent nos.1 and 2 as well as the opponent no. 4-United India Insurance Company Ltd shall be jointly and severally liable to pay compensation under the impugned Judgment and Award. ii)Rest of the award is confirmed. iii)The amount deposited by the appellants if any, lying in this court, shall be refunded to the appellants with interest accrued thereon. iv)The appeal is partly allowed in above terms. There will be no order as to costs. JUDGEk