1 FA.888.01 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 888 OF 2001 Shrikrishna Shankar Gatane. ... Appellant Versus Anil Prabhakar Dhokane and others. ... Respondents ----- Mr. S.P.Shinde i/b Mr. M.M.Sathaye for the Appellant. None for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 08 th July, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellant. None appears for the Respondent No.3, who is the contesting Respondent. Office noting shows that the Respondent No.3 has been duly served. 2 The Appellant is the claimant in a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”). On 11 th April, 1991, the Appellant was driving his 2 FA.888.01 scooter from Nasik Road towards Nasik. When he was proceeding to Nasik, a pick-up van came from the opposite direction and gave a dash to the scooter. Due to the impact of the accident, the Appellant was thrown out from the scooter. As a result of impact, he became unconscious. According to the case of the Appellant, he suffered multiple fractures of facial bones and he lost all his teeth. The Appellant was initially admitted in intensive care unit of Nagaji Memorial Hospital and he continued in the said Hospital till 4 th May, 1991. The claim petition was opposed by the Respondent No.2. The claim petition was also opposed by the Respondent No.3. The Respondent No.3 is the Insurer of the pick-up van. Initially, in the claim petition, the number of the cover note of the insurance was mentioned as 070843. After verification of the said cover note, the Respondent No.3 found that the same was pertaining to other vehicle. Thereafter, the claim petition was amended. In the amended claim petition, the Appellant contended that the cover note number was 070842. To the amended petition, a supplementary written statement 3 FA.888.01 was filed by the Respondent No.3 in which it was contended that the cover note was issued in respect of the said pick-up van, but it was cancelled on the same day and therefore, the insurance was not valid on the date of the accident. However, the other particulars such as the date on which the cover note was issued were set out in the written statement. 3 By the impugned award, the learned Member of the Tribunal held that the accident occurred due to negligent driving on the part of the driver of the pick-up van. Therefore, the Tribunal held that the Respondent No.1 (owner) and the Respondent No.2 (driver) are liable to pay the compensation. However, the Tribunal accepted the case made out by the Respondent No.3 that the cover note was cancelled. Hence, no award was made against the Respondent No.3. A total compensation of Rs.57,510/- was granted by the learned Member of the Tribunal. 4 It must be noted here that during the pendency of the 4 FA.888.01 appeal, in execution application, the Appellant accepted a sum of Rs. 45,000/- from the Respondent No.1. A compromise purshis was filed in the execution application in which the Appellant stated that he was not pressing the execution against the Respondent No.1 in view of receipt of Rs.45,000/-. On the basis of the settlement arrived at in the execution application, the Appellant has deleted the names of the Respondent Nos.1 and 2 (the owner and the driver of the pick-up van). 5 The submissions made by the learned counsel appearing for the Appellant are two fold. The first submission is that the compensation granted is inadequate especially under the heading of pain and suffering. The second submission is that the evidence on record shows that after receipt of the premium, the cover note was issued and the same was unilaterally cancelled. He submitted that even assuming that cancellation was valid, the Respondent No.3 was liable to satisfy the award, which is made against the Respondent No. 1. The learned counsel appearing for the Appellant has taken the Court through the evidence on record and especially the evidence of 5 FA.888.01 two officers of the Respondent No.3 examined by the Respondent No. 3. None appears for the Respondent No.3. 6 I have given careful consideration to the submissions. The name of the Respondent No.1 (Insured) has been deleted. Therefore, the claim for enhancement of compensation cannot be considered on merits as award of enhancement cannot be passed against the Respondent No.1. Unless an award of enhanced amount is passed against the Insured, the same cannot be passed against the Insured. Therefore, I have considered only the other issue regarding validity of the insurance. 7 The Respondent No.3 has examined two witnesses. The first witness is Mr.Chandrashekhar Shankar Joshi, who was working as Assistant Divisional Manager, in the Divisional Office of the Respondent No.3 – Insurance Company, at Nashik. He stated that the Divisional Office maintains a cover note issue register in which record of the numbers of the cover notes allotted to the Development Officers 6 FA.888.01 is maintained. He stated that the cover notes books are given to the Development Officers and each book contains twenty cover notes. He stated that a cover note book containing cover note Nos.70841 upto 70860 was issued to one Mr.Sudhir Gopalrao Lakhe, Development Officer on 12 th June, 1990. He produced the said register in evidence. He stated that the Development Officer maintains a cover note utilization book in which he records all the details of the cover notes issued to the customers. He produced on record of the cover note utilization book maintained by Mr.S.G.Lakhe. The said document has been marked as Exhibit – 92. He stated that the said record shows that the Cover Note No.70842 was cancelled. He stated that in the said record, there is a column of “A.A. No.”, which is Acceptance Advice Number. He stated that instead of writing the Acceptance Advice Number, the Development Officer has noted the dates on which the cover notes were issued. He stated that the cancelled cover note was returned to the Divisional Office by the Development Officer. He produced the original cancelled cover note at Exhibit – 93. He 7 FA.888.01 stated that under the said cover note, the pick-up van was insured. However, no policy was issued. 8 Perusal of the record shows that against the column of A.A. number, date of 30 th May, 1990 has been mentioned in respect of cover note No.70842 and there is a further remark that the cover note has been cancelled. The cancelled cover note at Exhibit – 93 shows that the same was issued for the period from 16 th June, 1990 to 15 th June, 1991. The accident in the present case occurred on 11 th April, 1991. The cover note mentions registration number of the vehicle as MTS-3843 which is the registration number of offending pick-up van. In the cross-examination, the witness Mr.Joshi stated that on the cover note, nothing is mentioned about non receipt of the premium. However, he admitted that only after receipt of premium that the cover note is issued. He admitted that when the premium is received, an entry about the same is made in the premium register. He also admitted that he had not brought the premium register to the Court. He admitted that in A.A. column, date of 30 th May, 1990 has been 8 FA.888.01 mentioned against the Cover Note No.70842. He admitted that the cover note book containing the said cover note was given to Mr.S.G.Lakhe, Development Officer on 12 th June, 1990. In response to the question asked by the Tribunal, he stated that the cover note in question shows that it was issued on 16 th June, 1990 and in A.A. column, date of 16 th June, 1990 ought to have been mentioned and the Development Officer might have made a mistake. He admitted that there is no entry about the utilization of cover note on 16 th June, 1990. He admitted that no intimation was given to the owner of the vehicle about the cancellation of the cover note. 9 The Development Officer, Mr.S.G.Lakhe, was also examined as witness. He admitted that he received the cover note book containing the said cover note on 12 th June, 1990. He admitted that the utilization certificate was in his handwriting. He stated that in A.A. column, he has mentioned the dates of expiry of the cover notes. He stated that the cover note was issued on 16 th June, 1990 and on the same day, it was cancelled. He stated that the date of expiry of the 9 FA.888.01 said cover note is wrongly mentioned as 30 th May, 1990. He admitted that the date of 30 th May, 1990 mentioned in the A.A. column is neither the date of issue nor the date of expiry of the cover note. He admitted that unless the relevant documents are produced by the owner or his representative, the cover note is not written. He denied the correctness of the suggestion that the premium amount is accepted and only thereafter, the cover note is written. 10 Thus, the witness Mr.Joshi admitted that unless the premium amount is received, the cover note is not issued. He admitted that a separate premium register is maintained, which was not produced in the Court. Witness Mr.S.G.Lakhe in the cross- examination admitted that he had no evidence to show that the premium was not paid. The premium register was the most vital document, which was not produced. The said document could have thrown light on the question whether the premium was paid by the Insured. However, the premium register has been withheld from the Tribunal by the Respondent No.3 and therefore, it was a fit case to 10 FA.888.01 draw an adverse inference against the Respondent No.3. It is undisputed that the cover note was prepared. It is an admitted position that no intimation of cancellation of the cover note was issued to the Insured. In the record of cover note utilization at Exhibit – 92, the first item is of Cover Note No.070841. Against the A.A. column, date of 15 th June, 1991 appears, which according to the witness Mr.S.G.Lakhe, is the date of expiry of the policy. The second entry is of the Cover Note No.070842 in which the date 30 th May, 1990 has been mentioned against A.A. column. The dates mentioned against subsequent cover note numbers are from 15 th June, 1991 onwards till 25 th June, 1991. The fact that date 30 th may, 1990 appears against the cover note raises a suspicion. What is brought on record is the admitted position that unless the premium is paid, the cover note is not issued. The premium register was not produced before the Tribunal. Even extract of the premium register was not produced before the Tribunal. There is no dispute about the fact that the cover note was issued, but admittedly, Insured was not informed about the cancellation of the cover note. 11 FA.888.01 Therefore, on facts, the only inference which can be drawn is that on 16 th June, 1990, the cover note was issued after receipt of premium. There is no intimation given by the Respondent No.3 to the Insured or to the R.T.O. regarding cancellation of the policy or cover note. 11 All the aforesaid aspects have not been appreciated by the learned Member of the Tribunal and without considering the effect of failure of the Respondent No.3 to produce premium register, he has proceeded to exonerate the Respondent No.3. Thus, that part of the award is completely erroneous and the Respondent No.3 will have to be held liable to satisfy the award passed against the Respondent No. 1. 12 Hence, I pass the following order: i. The impugned judgment and award is modified and it is directed that the first and third opponents against whom the Motor Accident Claim Petition No.439 of 1991 filed, shall be jointly and severally liable to pay the compensation of Rs.57,510/- with interest at the 12 FA.888.01 rate of 9% per annum from the date of filing of the claim petition till realisation with proportionate costs ; ii. As the Appellant has already received a sum of Rs.45,000/- from the Respondent No.1, the Respondent No.3 shall be liable to pay the only the balance amount payable under the impugned award to the Appellant ; iii. The balance amount payable as per the impugned award shall be deposited by the Respondent No.3 before the concerned Tribunal within a period of three months from today ; and iv. The Appeal is partly allowed on above terms with no order as to costs. [ A.S.OKA, J ]