IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FOURTEENTH DAY OF MARCH TWO THOUSAND AND ELEVEN :PRESENT: THE HON'BLE SRI JUSTICE K. S. APPA RAO M.A.C.M.A.No.4621 OF 2008 Between: ICICI Lombard General Insurance Co. Ltd., Rep. by its Manager, Banjarahills, Hyderabad ..... APPELLANT AND Smt.S. Srilatha and others .…. RESPONDENTS JUDGMENT: Aggrieved by the judgment and decree dated 25-08-2008 passed in O.P.No.1575 of 2006 on the file of the Additional Metropolitan Sessions Judge for the trial of JHCBBC Cum Additional Family Court cum XXIII Additional Chief Judge, Hyderabad, present M.A.C.M.A. is filed by the appellant-insurance company mainly urging that the lower Court has not properly considered the oral and documentary evidence and much weight was given to an inadmissible document, which is marked as Ex.A- 8 Photostat copy of the insurance policy filed by the applicants and the same was not issued by the appellant-insurance company. Therefore, there is no valid insurance coverage on the offending vehicle as on the date of the accident and that insurance company is not liable to pay any compensation. Accordingly, the order of the lower Court is not sustainable. Now the point for consideration is whether the finding of the lower Court in granting compensation to the petitioners is sustainable. POINT:- It is the contention of the appellant-insurance company that the offending vehicle was not insured with the appellant-insurance company and they do not issued any insurance policy in respect of the offending vehicle and that the owner of the said vehicle was not paid any premium and therefore, the liability cannot be fastened to the insurance company. To prove the same the appellant-insurance company authority is examined as RW-1. According to him, the petitioners mentioned in their claim petition that the policy number alleged to have been issued by the appellant-insurance company (R-3 in O.P.) to one Mr.Syed Ismail (R-2 in O.P.) for the offending vehicle. But on verification of the said policy number, it was issued to R-2 and there is no premium collected from R-2 and there is no existing policy with the said number. The theory of non-tallying of the insurance policy alleged to have been produced by the petitioners was at the time of the evidence of RW-1, an employee in the insurance company. On perusal of the counter-affidavit filed by the insurance company it is evident that nowhere they have been taken the specific and positive stand as stated by RW-1 before the Court. The denial in the counter is only an omnibus denial which cannot be said that evidence of RW-1 was based on the counter averments made by the insurance company at the time of filing counter. RW-2, owner of the offending vehicle was also gave the evidence that he paid the premium to appellant-insurance company against the policy issued to the offending vehicle and the same is in existence with valid coverage on the date of the accident. The counsel for the appellant also urged that a notice was sent to the owner for production of the document relating to the vehicle but the owner of the vehicle was not responded to the notice. The same cannot be taken into consideration since it was issued at the earliest point of time requesting the owner of the vehicle to produce the records. The claimants in the first instance i.e., at the time of filing of the petition have furnished the particulars of the vehicle so as to enable the insurance company to verify the details. If the insurance company has found details of the insurance policy produced by the claimants false in the first instance definitely it would have apprised the claimants that the policy particulars furnished by them are false. The appellant at the last hour through the evidence of RW-1 now introduced a theory that insurance policy filed by the claimants is not issued by R-2- insurance company. Learned counsel appearing for the appellants placed reliance on a decision reported in United India Insurance Company Limited represented by its Divisional Manager, Kurnool v. B. Jaya Lakshmi and others[1] that it is for the claimants to prove the genuineness of the policy basing on which they are claiming compensation and the insurance company cannot be found fault in non-discharging the burden when the policy on which the claimants claiming compensation is genuine or not. In the present case on hand, the appellants taken a plea that the policy produced by the claimants was not issued by them as the format of the present policy is different to the format now being followed by the insurance company. That being the case, it is the burden of the insurance company to prove when the format was changed and since how long they are following the format. More over, none of the witnesses on behalf of respondent-insurance company were examined on that score. The learned judge in the impugned order well discussed the evidence on record in detail while answering issue No.2 from paragraph Nos.11 to 16 and gave a positive finding that the insurance company did not discharge their burden. More over, non denial of the policy produced by the claimants in the first instance as stated by RW-1 before the Court and the theory introduced thereafter is only an after thought to avoid the liability. Viewing from any angle, in the totality of the circumstances, the evidence of RW-2 coupled with the evidence of RW-1 and the material evidence it is amply proved that the petitioner discharged their burden of proving that the offending vehicle had valid insurance coverage and accordingly, insurance company shall indemnify the compensation payable to the petitioner. Therefore, the finding of the lower Court is justified and accordingly sustainable. In the result, the appeal is dismissed. There shall be no order as to costs. ___________________ K.S. APPA RAO, J March 14, 2011 Pn THE HON'BLE SRI JUSTICE K. S. APPA RAO M.A.C.M.A.No.4621 OF 2008 March 14, 2011 [1] 2004 (5) ALT 50