IMPORTANT POINT
The insurance company must prove the non-existence of a policy at the time of an accident to avoid liability, and the burden of proof lies with them.

JUDGMENT :

Sumathi Jagadam, J.

This appeal is preferred by the 2nd respondent in M.V.O.P. No.644 of 2005 aggrieved by the order dated 10.03.2008 passed by the Chairman, Motor Accidents Claims Tribunal-III Additional District Judge, Tirupati (for short ‘the Tribunal’) awarding compensation of an amount of Rs.2,95,472/- to the petitioners.

2. For convenience sake, hereinafter the parties will be referred to as they were arrayed in the O.P.

3. The petitioners filed M.V.O.P. No.644 of 2005 under Section 166(1)(c) of the Motor vehicles Act, 1988 (for short ‘the Act’) claiming compensation of Rs.3,00,000/- against the respondents on account of the death of V. Subrahmanyam, who is son of petitioner Nos.1 & 2 and brother of petitioner Nos.3 to 7, in a motor accident that occurred on 17.02.2005 at about 8.30 AM while he was going in auto bearing No.AP 03 V 7817 to Tirupati, and when the said Auto reached M.R.F. show room on Tiruchanur by-pass road, a tractor bearing No.AP 26 T 6592 and trailer bearing No.AP 03 V 1087 (hereinafter referred as the offending vehicle) came in a rash and negligent manner and dashed the auto, as a result of which, the deceased and other inmates sustained grievous injuries. The deceased succumbed to injuries while taking treatment in SVRRGG Hospital, Tirupati. A case in Cr.No.32/2005 came to be registered against the driver of the offending vehicle under Section 304(A), 338 and 279 IPC.

4. The first respondent has remained ex parte and the 2nd respondent filed counter contending that while the driver of the offending vehicle was going on the left side of the road, the auto with over load came to the road and near to the tractor and due to the confusion, the driver of the auto dashed the tractor and the accident occurred due to the negligence of the driver of the auto and the driver of the offending vehicle was not negligent.

5. Basing on the pleadings, the Tribunal framed the following issues for consideration:

1) Whether the pleaded accident occurred resulting the death of the deceased and if so was it due to fault of the driver of tractor and trailer of first respondent bearing Nos.AP 03 T 6592 and AP 03V 1087 or due to the fault of the driver of auto of third respondent bearing No.AP 03V 7817?

2) Whether the tractor and trailer in question belongs to R.1 and stood insured with R.2 by the date of accident and if so whether the policy covers the risk of the deceased?

3) Whether the Auto in question belongs to R.3 and stood insured with R.4 by the date of accident and if so whether the policy coves the risk of the deceased?

4) Whether the petitioners are the legal representatives of the deceased and entitled to compensation and if so, to what amount, from which of the respondents?

5) To what relief?

6. Before the Tribunal, on behalf of the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.4 were marked. On behalf of the respondents, no evidence was adduced, however, Ex.B.1 copy of policy was marked with consent.

7. After considering the evidence on record, the Tribunal allowed the petition in part granting compensation of Rs.2,95,472/- with interest at 7.5% p.a. from the date of petition till the date of deposit against the respondents 1 and 2 and the claim is dismissed against the respondents 3 and 4 without costs. Being aggrieved by the same, the 2nd respondent/United India Insurance Company Limited preferred the instant appeal.

8. Heard the argument of both the learned counsel. Considering the rival contentions and on perusing the material available on record, the point that arises for consideration in this appeal is,

Whether the Tribunal has justified in holding that the accident occurred due to the negligence of the driver of the offending tractor and in holding that the respondent/insurance company failed to establish the subsistence of policy at the time of accident?

POINT:

9. Learned counsel for the appellant/insurance company contended that there was no negligence on the part of the tractortrailer bearing No