1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.891 OF 1988 The Oriental Insurance Co. Ltd. .... Appellant Vs. Smt. Hashibai Hasuram Patil & Ors. .... Respondents Mrs. Anita A. Agarwal & N.B. Kamat, Advocates for appellant. Mr. R.S. Datar, Advocate for respondents. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 16th June, 2009 P.C. 1. By the order dated 4th February 2008, memo of appeal was allowed to be amended to implead respondents no.8 and 9 thereto. Respondent no.8 is stated to be the owner of the offending vehicle and respondent no.9, it’s insurer. Thereafter the name of respondent no.8 has been deleted from the proceedings at the instance of the appellant as respondent no.8 was not available for service. Since the appeal is dismissed against respondent no.8, the owner of the offending vehicle, it cannot survive against respondent no.9, the insurer, the liability to pay compensation being primarily of the owner of the vehicle. 2. This appeal is preferred by the Oriental Insurance Company Limited to challenge the order dated 30th January 1988 passed by Motor Accidents Claims Tribunal, Thane allowing Claims Application No.373 of 1983 awarding compensation of Rs.90,000/- to the original claimants with interest @10% per annum from the date of the application. Respondents no.1 to 5 are the heirs and legal representatives of one 2 Hasuram Pandurang Patil who died in a motor accident on 14th June 1983. He was working as carpenter, earning Rs.1,000/- per month. On 14th June 1983, he was waiting for bus at Kalher bus stop to go to Thane for purchasing carpentry material. At that time the offending vehicle bearing No.MMG 2174 belonging to respondent no.7, dashed against him being driven in a rash and negligent manner by respondent no.6. Hasuram was removed to Civil Hospital where he died. Respondents no.1 to 5 filed petition to claim compensation on account of his death claiming compensation of Rs.3,10,000/-. However, they restricted their claim to the sum of Rs.1,00,000/-. 3. After service of summons the owner of offending vehicle, respondent no.7 did not appear before the Court. The appellant filed its written statement contending that respondents no.1 to 5 had failed to give proper insurance particulars and as a consequence the appellant despite putting best efforts could not trace the insurance policy or the certificate in its office. Therefore according to the appellant, it is not concerned with the offending vehicle and hence not liable to pay any compensation to respondents no.1 to 5. 4. The evidence led before the tribunal was of the widow of Hasuram and one Mustafa, employee from the Regional Transport Office. After appreciating the evidence, the learned Tribunal held that there was sufficient evidence before the Court to establish liability of the appellant and on considering the income of the deceased, granted compensation of Rs.90,000/- with proportionate costs and the interest thereon @10% per annum. 3 5. The appellant challenged the impugned judgment and decree claiming that there is no evidence to show that the offending vehicle is insured with him and therefore, it is not liable to pay compensation. Mrs. Agarwal, the learned counsel for the appellant submits that respondents no.1 to 5 have neither produced the certificate of Insurance nor the policy of insurance to establish that the offending vehicle is insured with the appellant. The only evidence of insurer brought before the Court by these respondents was of the evidence of one Mustafa, an employee from the Regional Transport Office who produced office record containing the information as regards the insurance of the offending vehicle. This information was given by the owner in a prescribed form at the time of registration of the vehicle. This witness in his cross-examination admits that the Certificate (Exhibit 46) does not make it clear that the number given therein of B50 IN-3011004 as of certificate of insurance policy. The certificate also does not make it clear as to person in whose favour it is issued. Based on this, Mrs. Agarwal submits that because of this incomplete information, it is not possible for the appellant to trace out either the certificate of insurance or the policy of insurance allegedly issued by the appellant. Therefore, according to her, the liability of payment of compensation cannot be foisted upon the appellant. Though in the cross-examination of witness Mustafa, the appellant has made an attempt to throw some doubt as regards the insurance policy, it has not led positive evidence of it’s witness to establish that there is no policy or certificate issued by the appellant bearing No.B50 4 IN-3011004 in respect of the offending vehicle. In the absence of such evidence, which was entirely within the power of appellant, the tribunal has rightly accepted the evidence of witness Mustafa. It has further held in paragraph 9 of the judgment that the amendment effected to Rule 201, sub-rule (3) (iii) says that the application for compensation filed under the suit shall be accompanied by the certificate regarding ownership and insurance particulars of the vehicle from the Regional Transport Officer or the Police. These particulars have been complied with in the present application. Beyond this, it is not possible for the claimants to bring any evidence as regards insurance of the offending motor vehicle. It was held that the appellant is liable to pay compensation to respondents no.1 to 3. No fault can be found with the above reasoning of the learned Tribunal. In the circumstances, there is no substance in the challenge to the appeal filed by the appellant, The appeal is therefore dismissed. (SMT.R.P. SONDURBALDOTA,J) 5