IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.2628 OF 1999 BETWEEN National Insurance Company Limited. …APPELLANT AND Vallabasetti Sivayya and two others. …RESPONDENTS Counsel for the appellant: Mr. T. Mahender Rao Counsel for the Respondents: The Court made the following: - JUDGMENT: This appeal is preferred by the insurance company against the award of the Motor Accidents Claims Tribunal, East Godavari, passed in MVOP.No.50 of 1995 dated 16.06.1999. 2. The claim made in the aforesaid OP was for Rs.60,000/- by the parents of the deceased child, who was 12 years old. The accident occurred on 14.11.1992 due to the rash and negligent driving of the offending vehicle bearing No. ADT 5176 by the first respondent in the OP – driver of the vehicle. The basic allegations in the claim petition were that while the child was watching a procession of Swamy Ayyappa by standing at the far end of the road the offending lorry came in a rash and negligent manner and went beyond the road and dashed against the deceased child, resulting in his death. A claim for compensation was made in the present OP for Rs.60,000/- by the parents and in support of their claim they examined P.Ws.1 and 2 and marked Exs.A1 to A3, which are certified copies of the FIR in Cr.No.81 of 1992, Report of Motor Vehicle Inspector and Postmortem Report. The appellant – insurance company has contested the claim and marked Exs.B1 and B2 through their Branch Manager – R.W.1. Ex.B1 is the register showing the premium list pertaining to January 1991 and Ex.B2 is the photostat copy of the receipt relating to 02.01.1992 to 06.01.1992. The tribunal below on consideration of the evidence on record found that the offending vehicle was being driven in a rash and negligent manner and so far as the compensation is concerned, taking into account that the deceased boy was hardly 10 years, assessment of compensation accordingly is made. To the extent of the basic contention of the appellant that the vehicle is not covered by the insurance policy, the said finding is given against the appellant on the ground that there is a cover note of the policy as spoken to by R.W.1 and also referred to by the Motor Vehicle Inspector in his report – Ex.A2. Accordingly, the tribunal awarded the aggregate compensation of Rs.42,000/-. 3. In this appeal, Sri T. Mahender Rao, learned counsel for the appellant has contended that there is absolutely no evidence in support of the claim case that the offending vehicle was insured by the appellant. He points out that the date of the accident is 14.11.1992, but the additional evidence, which is produced before the Court vide CMP.No.20473 of 1999 filed along with the appeal, clearly shows that the said cover note relates to a policy dated 26.05.1994 and was issued in respect of a Kawasaki Motor Cycle belonging to one Smt. Zaheda Sultana. The said additional evidence application is accompanied by the document viz. insurance policy under the aforesaid cover note. The learned counsel, therefore, submits that this fact alone is sufficient to establish that the offending vehicle was not covered by the cover note alleged to have been issued by the appellant. He also submits that the liability cannot be fastened on the appellant, as the accident occurred on 14.11.1992 whereas the said policy was issued two years thereafter. 4. I have considered the aforesaid submissions. No doubt, the additional evidence produced along with the appeal prima facie goes a long way to establish that the insurance policy relatable to the said cover note was issued two years after the accident in question and is related to a different vehicle viz. two wheeler rather than the offending vehicle, which is lorry. However, R.W.1 – Branch Manager, Nalgonda Branch, which is the concerned branch relating to the said policy, has deposed before the tribunal by stating that the said cover note was allotted to their Development Officer, one Mr. Bashir, who subsequently died in the year 1993-94. He submits that the record of the branch shows that no premium was paid with regard to the aforesaid cover note for the year 03.01.1992 to 02.01.1993 and consequently deposed that no valid policy was issued in favour of the vehicle viz. the offending vehicle and the owner thereof. The said evidence of R.W.1, who was the branch manager at that time, however, does not speak about the said cover note relating to a two-wheeler policy. Further stand taken in the said evidence by R.W.1 is primarily on the ground that the premium with respect to the said cover note was not received in the branch. The aforesaid stand is quite different from the contention now advanced in the appeal by the learned counsel by way of additional evidence. It may be that the said additional evidence was not available at the time of the evidence of R.W.1. Even assuming that, if it is so, the statement of the branch manager – R.W.1 cannot be appreciated as he has not even hinted in the evidence anywhere that the said cover note has absolutely no nexus with the offending vehicle and it’s policy. Since the stand taken in the said evidence was only relating to the premium having not been received with respect to the cover note the liability was denied. In the counter filed by the appellant before the tribunal below it was stated that the said cover note relates to a two-wheeler but while leading evidence the said theory was given up and only non-payment of premium was pressed. Now in the appeal again the contention as mentioned in the counter is being pressed. 5. I am afraid, shifting of stands in this manner is not permissible. I am, therefore, not inclined to accept the aforesaid contention. The application for additional evidence, however, having been filed along with the appeal and having not been opposed by the respondents will be admitted in evidence and since it is only a document of insurance policy, the said document should be marked as Ex.B3. In the light of the above discussion, the finding of the tribunal so far as awarding compensation against the insurance company deserves no interference. The civil miscellaneous appeal is accordingly dismissed. However, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J September 11, 2009 DSK