IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.258 of 2002 The New India Assurance Company Limited having its Registered and Head Office at 87, Mahatma Gandhi Road, Fort, Bombay 400023 and amongst others a Divisional Office at Muzaffarpur and a Branch Office at Motihari, represented through P. Serafin, the Assistant Manager (Legal) at Regional Office, B.S.F.C. Building, VI Floor, Fraser Road, Patna 1, a duly constituted Attorney of the Company. ….Opposite Parties No.3 to 5/Appellant. Versus 1. Bangali Bhagat, S/O Late Govind Bhagat, resident of Village-Braharpur, P.O.-Gayghat, P.S. Harsidhi, Dist.- East Champaran. ….Claimant-Applicant-Respondent. 2. Smt. Kanta Devi, W/O Mahendra Singh resident of Village-Motiaria, P.O.- Makhua, P.S. Harsidhi, Dist.- East Champaran----Owner of the offending Vehicle Bus BHE 3417. 3. Rahmat Mian, S/O Pir Mohammad Mian Resident of Village Ghewadhar, P.S. Harsidhi, Dist.-East Champaran-----Driver of the offending Vehicle Bus BHE 3417. …Opposite Party No. 1 & 2/Respondents. ----------- 6. 28 .09. 2010. Heard the parties. This Misc. Appeal is directed against the order dated 20.04.2002, passed by the 2nd Additional Sessions Judge, East Champaran, Motihari, in Claim Case No. 15/2001/18/2001 has ordered the National Insurance Company to pay interim compensation to the tune of Rs. 50,000/- to the claimant. 2. However, the appellant is New Insurance Company. 3. Learned counsel for the appellant however, contended that the claim application filed by the claimant was hopelessly barred by law of limitation as 2 the occurrence took place in the year 1996 whereas the claim petition has filed in the year 2001. It has further been contended that cover notes of policy filed in the lower court was illegible and Insurance Company could not verify as was in search of the concerned policy to verify, but the Tribunal refused to grant sufficient time and without enquiry passed the impugned order under Section 140 for interim compensation. The appellant has relied upon decision reported in 1994 (1) P.L.J.R. 79 that Tribunal was required to conduct enquiry before the order passed, so the order is bad. It has further been contended that the driver of the alleged vehicle did not hold any valid driving licence and the driver neither appeared nor filed driving licence and the driving licence is also forged and fabricated one. 4. Learned counsel for the respondent however, contended that application for claim was filed in the year 2001 and the Insurance Company was noticed. The Insurance Company appeared in the case in the year 2001 itself and took several adjournments and the Insurance Company appeared on 12. 10. 2001 and filed their power and took several adjournments and finally order for ad-interim compensation was passed on 20. 04. 2002, given several opportunities to the Insurance Company, but even on several 3 adjournments, the Insurance Company did not file confirmation report and in absence of specific denial or contrary report in respect of policy described in the petition it was held that offending vehicle was insured and order to pay interim compensation 5. Hence on the rival contention of the parties two points arises whether the claim is barred by limitation and the second point is whether in absence of specific finding that the vehicle was insured, the Insurance Company is liable to pay the interim compensation. 6. So far the first question for limitation is concerned, no such point has been taken before the Tribunal. However, the occurrence took place in the year 1996 and the claim petition was filed in the year 2001. Section 166 (3) of Motor Vehicle Act provided the limitation of six months for filing the claim case within six months and the Tribunal was given to condone the delay for a further period of six months. However, Section 166 (3) of Motor Vehicle Act was deleted by the Parliament and in the decision reported in 1996 (4) S.C.C. page 652 Dhan Lal Vrs. D.P. Vijay Viyavargiya and others held that effect of deletion of Sub clause 3 of Section 166 the limitation is not applicable in claim case and the effect of deleting of Section 166 (3) 4 extended to pending claim case where the plea of limitation has been raised and to be applicable with retrospective effect and held that claim petition can not be thrown out on the ground that claim petition was barred by time. Further decision reported in 2003 (7) SCC page 713, New India Insurance Co. Ltd. Vrs. C. Padma & others reiterated and relied 1996 SCC cases (supra). The fact of the case reported in 2003(7) SCC is that accident took place on 18. 02. 1989, the claim petition was filed on 02.11.1995 and in the facts and circumstances of the case it was held that case is not barred by limitation when Section 166 (3) of Motor Vehicle Act having been deleted. Limitation Act not applicable in claim cases as the limitation clause having been deleted, the Tribunal was bound to entertain without taking note of the date on which accident took place and hence there is no merit that claim case is barred by limitation. 7. However, in the facts and circumstances of the case, the Bus admittedly involved in accident mentioned in the Fardbeyan as well as in the F.I.R. The vehicle in question by which the accident took place is BHE 3417 and the death of deceased by the said bus. The claim petition filed. The Insurance Company appeared on 12th October, 2001 and the impugned 5 order passed in April, 2002 and several opportunity was given to the Insurance Company but neither produced the insurance policy nor filed confirmation report of specific denial. However, order has been passed for interim compensation on 02.04.2002 under Section 140 Motor Vehicle Act and the case is still at the stage of enquiry as the petition under Section 166 Motor Vehicle Act is still pending. 8. The owner of the bus did not appear neither Insurance Company nor the owner provided any document as well as Insurance Company also did not give reply for about six months even after appearance of the learned counsel for the Insurance Company and case adjourned on several dates and the agony of claimant can well be considered. The claimant has relied upon the observation in para 10 of decision reported in 1988 (1) S.C.C page 626, "Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Company, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act 6 are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy 7 of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasied. " 9. Hence sufficient opportunity was given to the insurer to enquire and give reply whether the said vehicle is insured. However, even after appearance of the learned counsel on behalf of the Insurance Company no reply was filed and the Tribunal became handicapped as neither the Insurance Company nor owner responded before the Tribunal to give information about the fact whether the vehicle is insured and hence impugned order was passed. However, in the appeal, Insurance Company has taken a plea in the ground of appeal in para 10 that the alleged accident took place on 16. 06. 1996, but admitted that the vehicle was insured with the appellant for the period from 14. 11. 1989 to 13. 11. 1990 and as such date of accident is not covered under any policy issued by the appellant. However, no such averment ever made before the Tribunal and hence it a matter of enquiry by the Tribunal as only interim order has been passed under the facts and circumstance 8 stated above and enquiry is still open. However, it is not a case that there was no insurance at all rather Insurance Company in para 10 of his ground of appeal has admitted that the vehicle was insured with the appellant for the period 14. 11. 1989 to 13. 11.1990, and it is a matter of enquiry whether the said policy continued. However the Insurance Company in his reply has taken plea in para 5 of the ground of appeal that the claimant filed a Xerox copy of cover note that the alleged offending vehicle insured with the appellant company covering risk period from 14. 11. 1995 to 13. 11. 1996 and the alleged accident took place on 16. 06. 1996 and the correctness and genuineness of which was doubted by the Company and further in para 11 has taken plea as the appellant is entitled to recover amount of interim award from the claimant and hence, since sufficient opportunity was given to the appellant before passing the order, but the appellant did not give any material during enquiry before the Tribunal at the time of passing of the interim compensation but raised point in the appeal which has not been raised before the Tribunal or the material not placed before the Tribunal when the case is still open and pending there. 10. Learned counsel for the appellant has relied decision reported in 1994 (2) P.L.J.R. page 820 9 that the order ought not have been passed without proper enquiry. However, under the facts and circumstance of the case reported in 1994 (2) that the accident took place with a Bus bearing Registration No. BRD 7879 and the owner of the Bus appeared on notice and denied the involvement of his Bus in the accident, but the Claim Tribunal rejected the objection on the basis of witnesses recorded in course of investigation of the police case where witnesses have stated that the deceased died out of the accident with Bus bearing Registration No. BHD 7879, whereas the petitioner was owner of the Bus bearing Registration No. BRD 7879 and the Claim Tribunal passed order for payment of interim compensation on the basis of statement of the witnesses recorded in course of investigation of police case without holding enquiry as to which of the Bus in fact was involved in the accident and under the facts and circumstance of the case the impugned order was set aside on the ground that no inquiry conducted by the Tribunal to ascertain the bus involved. 11. However, facts and circumstance of the case reported in 1994 (2) P.L.J.R. is quite different from the facts and circumstance of the present case, yet in the case at hand several opportunity was given to the Insurance Company and the impugned order passed 10 after appearance of the learned counsel for the Insurance Company and giving several opportunity to the counsel of the Insurance Company for six months and even several adjournments was granted but no fact was placed before Tribunal or reply filed to suggest that the vehicle was not insured or vehicle was not involved. However, impugned order is only interim in nature and the appellant may raise issue and even recover the amount if found not liable. 12. However, it is not proper to interfere with the impugned order at this stage when the enquiry and proceeding under Section 166 Motor Vehicle Act is still pending and the appellant may raise issue before the Tribunal and after giving opportunity to the parties, issue can well be settled. 13. However, point raised in the matter between the insurer and the owner, but the third party would not suffer for the dispute between the insurer and the owner that who will pay and hence I do not find merit to interfere with the impugned order at this stage and hence the appeal is dismissed. m.p. ( Gopal Prasad, J.)