Case: Oriental Fire & Insurance Company Limited Vs. Dr.G.R.Purohit & Others

ORAL JUDGMENTDudhat, J.This First Appeal is filed by Oriental Fire & Insurance Company (hereinafter referred to as the Insurance company) against the judgment and decree dated June 30, 1982 passed by the IInd Joint Civil Judge, Senior Division, Pune, in Special Civil Suit No.141 of 1976. By this judgment the trial Court has decreed that defendant No.1 - Hyder Ali Zaffar Ali and defendant No.3 - Insurance company shall pay an amount of Rs.45,000/- and proportionate costs of the suit to the plaintiffs. The trial Court further decreed that defendant No.1, the driver, and defendant No.3, the Insurance company shall also pay interest on the abovementioned amount of Rs.45,000/- at the rate of six per cent per annum from the date of the decree till the payment. It is against the aforesaid judgment and decree, defendant No.3, the Insurance company has preferred the present appeal.2.A few facts which are necessary for the disposal of this appeal are as under :The plaintiffs had filed a Special Civil Suit No.141 of 1976 for recovering compen-sation for the injuries suffered by them and the damages caused to their Fiat car bearing No.MHU 6237 in an accident with an oil tanker bearing No.MHT 2661 on November 17, 1973 at about 5 p.m. at the kilometer stone No.89/6 between Khandala and Pune on Bombay-Pune road. Plaintiff No. 1 is a doctor and Reader at Medical College, Pune. Plaintiff No.2 is the wife of plaintiff No.1 and plaintiff No.3 is the minor son of plaintiff Nos.1 & 2. It is the case of the plaintiffs that on the date of the incident, the plaintiffs were going to Khandala at about 5 p.m. in their Fiat car and when they were passing from near the kilometer stone No.89/6 on Bombay-Pune road, the oil tanker bearing No.MHT 2661 driver by defendant No.1 which was coming from the opposite direction came with a high speed, rashly and negligently from the wrong side of the road and dashed against the car of the plaintiffs. Due to the aforesaid accident all the three plaintiffs sustained injuries and their car was also damaged. According to the plaintiffs, they were, thereafter, taken to the Military Hospital and during the examination it was found that plaintiff No.1 had sustained dislocation and fracture to his right side hip joint and also entry articular damages of the right knee joint which was irreparable. Plaintiff No.1 was given treatment for about a month in the hospital and thereafter he was discharged. The other plaintiffs were treated too, however, were discharged much earlier. Thereafter plaintiff No.1 was advised not to bear weight on his joint and to use crutches for six months. It is the case of the plaintiffs that plaintiff No.1 was unable to move for a period of twelve months and his disability remained permanent, hindering his future active life. The plaintiff No.1, therefore, claimed damages for the injuries suffered by him and also for mental worries, shock and inconvenience and discomfort suffered by him after the accident. Plaintiff No.1 claimed damages amounting to Rs.73,600/- and Rs.1,000/- towards the damages to his car Plaintiff No.2, wife of plaintiff No.1, also claimed damages of Rs.12,000/- and also damages of Rs.7,000/- for plaintiff No.3. In all, the plaintiffs claimed damages of Rs.92,600/-. It is the case of the plaintiffs that defendant No.1 was driving the oil tanker at the time of the said accident and defendant No.2 is the owner of the oil tanker. Defendant No.3 is the Insurance company with whom defendant No.2 had insured the said oil tanker.3.From the record it appears that defendant Nos.1, 2 & 4 have throughout remained ex-parte. The suit was resisted only by defendant No.3, Insurance company. They have denied all the allegations made in the plaint by the plaintiffs and more particularly have denied the defendant No.2 was the owner of the said oil tanker and also have denied that the tanker was insured with them. The trial Court after hearing both, the plaintiffs and defendant No.3 held that the accident took place on November 17, 1973 and also held that plaintiff No.1 sustained injuries because of the rash and negligent driving on the part of defendant No.1. However, the trial Court held that the plaintiffs have failed to prove that the oil tanker in question was owned by defendant No.2. Inspite of that the trial Court also held that the tanker at the relevant time was insured with defendant No.3 by defendant No.2 and, therefore, passed the decree against defendant No.3 as mentioned above. The trial Court, however, dismissed the claim of plaintiff Nos.2 & 3 and also dismissed the suit as against defendant Nos.2 & 4. It is against this judgment and decree passed by the trial Court the Insurance company, defendant No.3 has preferred the present First Appeal.4. Mr.Kamat, the learned Counsel appearing for the appellants herein, contended that it is the case of the plaintiffs that defendant No.2 was the owner of the oil tanker in question and the same was insured by defendant No.2 with defendant No.3. The trial Court in its judgment has given a finding at issue No.10 to the effect that the plaintiffs have failed to prove that the oil tanker in question was owned by defendant No 2. Mr.Kamat, the learned counsel for the appellants herein, further strongly contended that the liability of the Insurance company is in the nature of indemnity and it is only if the Court comes to a conclusion that defendant No.2 was liable to pay the damages, defendant No.3 steps in the shoes of defendant No.2 as the insurer to pay the amount on behalf of defendant No.2. Since, in this case the trial Court has given a specific finding to the effect that the concerned tanker was not owned by defendant No.2 the trial court was wrong in passing a decree against the Insurance company. According to our opinion there is much substance in the arguments of the learned counsel Mr.Kamat. While fixing the liability on defendant No.3-appellants herein, the trial Court has also relied upon a copy of the entry which is at Ex.77. We have perused the said entry. It is a certified copy of the entry in the R.T.O. records wherein the name of defendant No 3-Insurance company is shown for covering the Insurance for the period from June 28, 1973 to June 27, 1974 Admittedly, the accident has taken place within this period i.e. on November 17, 1973 in this case one should keep in mind that it is the case of the Insurance company that defendant No 2 is not the owner of the oil tanker in question and that the said tanker was not insured with defendant No 3. The plaintiffs have not been able to produce any evidence to show that in fact the tanker in question was insured with defendant No.3-Insurance company for the said period. A mere entry in the R.T.O. books referring to name of defendant No 3 does not establish the fact that the vehicle in question in fact was insured with defendant No.3. The learned trial Judge has also relied upon the notice which is at Ex.81 given by the plaintiffs to defendant No.3 to produce the Insurance certificate and since defendant No.3 failed to issue the said certificate the trial Judge drew an adverse inference against defendant No.3. According to us, however, this is not a case where adverse inference can be drawn against defendant No.3-Insurance company. The plaintiffs called upon defendant No.3 to produce the insurance certificate. But, admittedly the insurance certificate always remains with the person who insures the vehicle and even as per the plaint since it is the case of the plaintiffs that defendant No.2 was the owner of the tanker in question the insurance certificate ought to have been sought for from defendant No.2. Obviously, there was no question of defendant No.3 producing any insurance certificate. Apart from that, defendant No.3-Insurance company has also denied that the tanker in question was insured with them at aIl.5. In our opinion, therefore, when the trial Court has given a specific finding to the effect that the plaintiffs have failed to prove that defendant No.2 was the owner of the concerned tanker, there was no question of fixing any liability against defendant No.3-Insurance company.

Decision reasoning: 1[ds]According to our opinion there is much substance in the arguments of the learned counsel Mr.Kamat. While fixing the liability on defendantherein, the trial Court has also relied upon a copy of the entry which is at Ex.77. We have perused the said entry. It is a certified copy of the entry in the R.T.O. records wherein the name of defendant Nocompany is shown for covering the Insurance for the period from June 28, 1973 to June 27, 1974 Admittedly, the accident has taken place within this period i.e. on November 17, 1973 in this case one should keep in mind that it is the case of the Insurance company that defendant No 2 is not the owner of the oil tanker in question and that the said tanker was not insured with defendant No 3. The plaintiffs have not been able to produce any evidence to show that in fact the tanker in question was insured with defendantcompany for the said period. A mere entry in the R.T.O. books referring to name of defendant No 3 does not establish the fact that the vehicle in question in fact was insured with defendant No.3. The learned trial Judge has also relied upon the notice which is at Ex.81 given by the plaintiffs to defendant No.3 to produce the Insurance certificate and since defendant No.3 failed to issue the said certificate the trial Judge drew an adverse inference against defendant No.3. According to us, however, this is not a case where adverse inference can be drawn against defendantcompany. The plaintiffs called upon defendant No.3 to produce the insurance certificate. But, admittedly the insurance certificate always remains with the person who insures the vehicle and even as per the plaint since it is the case of the plaintiffs that defendant No.2 was the owner of the tanker in question the insurance certificate ought to have been sought for from defendant No.2. Obviously, there was no question of defendant No.3 producing any insurance certificate. Apart from that, defendantcompany has also denied that the tanker in question was insured with them at aIl.5. In our opinion, therefore, when the trial Court has given a specific finding to the effect that the plaintiffs have failed to prove that defendant No.2 was the owner of the concerned tanker, there was no question of fixing any liability against defendant