1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.102 OF 1996 New India Assurance Co. Ltd., having its registered office at New India Assurance Building, 87, M.G.Marg, Fort, Bombay-1 and having offices at Jalgaon and Divisional Office at Aurangabad Appellant Versus 1 Prabakar s/o Popat Parve, age about 27 years, Occ: Agri., Milk Poultry Business, R/o Bhamra (Bk), Tq.Chalisgaon, Dist.Jalgaon. 2 Suresh Zulal Patil, age: 32 years, Occ: Driver, R/o Don Digar, Tq.Chalisgaon, District Jalgaon. 3 Subhash Sitaram Patil, age: 35 years, Occ: Agri. Trader Transport owner of Bajaj Matador No.MWD 1548, R/o Don Digar, Tq.Chalisgaon, District Jalgaon. 4 Deva Manga Pardeshi, age: 33 years, Occ: Driver, Mah. State Road Transport Corporation C/o Depot Manager, Chopda, District Jalgaon. 5 Maharashtra State Road Transport Corporation having its registered office at Mah.Vahatuk Bhavan, Dr.A.N.Joshi Marg, Central ST Stand, Bombay-8. Respondents 2 Mr.A.S.Osmanpurkar, advocate holding for Mr.K.V.Kulkarni, advocate for appellant. Mr.P.B.Shirsath, advocate for Respondent No.1. Mr.Satyajeet S. Bora, advocate for Respondent No.4. CORAM: R.M.BORDE, J. DATE : 12 th January, 2010. JUDGMENT: 1 This is an appeal presented by original opponent no.3 Insurance Company raising challenge to the judgment and award passed by Member, Motor Accident Claims Tribunal, Jalgaon on 20.11.1995 in Motor Accident Claims Petition No.22 of 1988. 2 Original claimant - Respondent No.1 herein stated in his petition that on the relevant day he was travelling in S.T. bus bearing Registration No.MCA-5620 from Chalisgaon to Chopda. Claimant had occupied last seat near window in the S.T. bus. It is his contention that when S.T. bus reached near Patonde village, a Matador bearing Registration No.MWD-1548 came from opposite direction in high speed and gave dash to S.T. bus, as a result of which, claimant, who was sitting in the bus near window, sustained injuries and suffered permanent disablement. The claimant holds drivers of both the vehicles responsible for causing accident and claims compensation to the tune of Rs. 1,50,000/-. Opponent no.3 is the Insurance Company, who has secured insurance of offending vehicle i.e. Matador bearing Registration No.MWD-1548. 3 The claim petition presented by claimant was opposed by Insurance Company – opponent no.3 and driver of S.T. bus as well as M.S.R.T.C. by presenting separate written statements. The owner as well as driver of offending vehicle matador, however, did not contest the claim nor filed written statement. 3 4 After considering evidence led by the parties, Tribunal came to the conclusion that claimant has established his claim and it was held that claimant is entitled to receive compensation to the tune of Rs.60,000/- along with interest at the rate of 12% p.a. 5 The judgment and award passed by the Tribunal has been challenged by Insurance Company – opponent no.3 on the ground that the claimant has not established that there was valid insurance issued by Insurance Company in respect of offending vehicle involved in the accident. It is vehemently contended by appellant that claimant has not established beyond doubt that opponent no.3, who is insurer of the vehicle belonging to opponent no.2, is responsible to reimburse claim raised against said respondents. 6 On perusal of record, it transpires that the claimant, in his claim petition, has contended that the offending vehicle i.e. Matador was insured with opponent no.3. The claimant has placed on record insurance particulars supplied by Deputy Regional Transport Officer, Dhule. The certificate issued by Deputy Regional Transport Officer, Dhule certifying that the vehicle in question is insured with New India Insurance Company Ltd. bearing Policy No.41652775 for the period between 06.05.1987 to 05.05.1988 is placed on record. The certificate issued by Deputy Regional Transport Officer, Dhule on 12.01.1988 is duly proved by claimant and is marked as Exhibit-46-A. Except denying liability arising from contract of insurance, opponent no.3 – Insurance Company has done nothing. Insurance Company has not led any evidence nor has placed any material on record to reach the conclusion that vehicle in question was not insured and that insurance policy number given in the certificate issued by Deputy Regional Transport Officer, Dhule is erroneous. The claimant has examined himself as C.W.2 and has specifically deposed about the liability of Opponent No.3 under the 4 Insurance Policy purchased by Opponent No.2. The certificate at Exhibit-46A is duly proved by claimant. Opponent no.3 has cross examined claimant, however, there is no question put to the witness in respect of insurance policy. There is not even a suggestion given to the witness indicating that the vehicle in question involved in the accident was not insured with opponent no.3. In this view of the matter, it cannot be said that opponent no.3 has discharged its burden of establishing that the offending vehicle was not insured with them or that the certificate issued by Deputy Regional Transport Officer, Dhule, giving details of the policy, is in any way erroneous. The case put up by claimant in respect of offending vehicle being insured with opponent no.3 – Insurance Company is even not denied by concerned opponent i.e. appellant herein. 7 An application came to be tendered at Exhibit-53 after closure of evidence of parties even after arguments in the matter were heard. Along with application Exhibit-53, a xerox copy of letter, allegedly written by opponent no.2 to Insurance Company wherein it is stated that opponent no.2, owner of offending vehicle i.e. Matador in question has not purchased insurance policy from opponent no.3-Insurance Company, is placed on record. A communication addressed by Divisional Manager of Opponent No.3-Insurance Company to its Regional Office at Aurangabad is also placed on record. In the said communication dated 30.01.1990, it is noted that the vehicle in question, as per office record, appears to have been insured with Insurance Company for the period between 13.07.1986 to 12.07.1987 but the date of of accident is 18.07.1987. It is not known as to whether policy has been renewed thereafter. Except placing xerox copies of letters along with application on record, opponent no.3 has not taken any steps. Opponent No.3 even did not care to examine any witness on their behalf nor has produced any record to demonstrate that policy in question bearing relevant number was not purchased by opponent no.2. Whether policy bearing relevant number, recorded in the certificate issued by Deputy Regional 5 Transport Officer, Dhule, is purchased by opponent no.2 or not is a fact within exclusive knowledge of opponent no.3-Insurance Company. It was, therefore, responsibility of the Insurance Company to place on record relevant material in that regard. It was also necessary for the Insurance Company to examine opponent no.2, owner of vehicle in question, who is stated to have purchased said policy. However, opponent no.3 has not taken any efforts to disapprove the case put up by claimants. As stated earlier, there was even no suggestion put to the claimant, who has deposed before the Court in respect of offending vehicle having been insured with opponent no.3 and bears policy number as recorded in the certificate issued by Deputy Regional Transport Officer, Dhule. There is no challenge to the evidence led by claimant or there is no rebuttal evidence led by the Insurance Company to discard the proof in the form of certificate issued by Deputy Regional Transport Officer, Dhule, which has been duly proved by the claimant. In these circumstances, the Tribunal was justified in fixing responsibility on the Insurance Company in respect of payment of compensation along with owner of offending vehicle. 8 For the reasons stated above, no interference is called for in the appeal. Appeal is devoid of substance. Hence stands dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/fa10296