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2013 Supreme(Bom) 2573
In the High Court of Bombay at Goa
B.R. GAVAI, J.
New India Assurance Co. Ltd.
Versus
Gunji Chakramma & Others
First Appeal No.199 of 2009
Decided On: 21-12-2013
For the Appellant:E. Afonso, Advocate.
For the Respondents:R1 to R3, D.B. Ambekar, A.V. Pavithran, R4 to R6, V. A. Lawande, Ms. Natasha Mayekar, Advocates.
The judgment establishes the principle that the insurance company bears the burden of proving the validity of the insurance policy, especially in cases of discrepancies in the copies of the policy and the failure to produce the original carbon copy.
Headnote:
Insurance - Motor Accident Claims - 3111150100298 - The judgment discusses the interpretation of the insurance policy and the burden of proof on the insurance company to establish the validity of the policy. The court highlighted the discrepancies in the copies of the insurance policy and the adverse inference drawn due to the failure to produce the original carbon copy. The judgment emphasizes the importance of the best evidence and the consequences of withholding it.
Fact of the Case:
The deceased was involved in a motor accident, and the claimants filed a petition seeking compensation. The court found the accident to be caused by the rash and negligent driving of the motorcycle, leading to the death of the deceased. The respondent no. 3 (appellant) challenged the finding that the vehicle was not insured at the time of the accident.
Finding of the Court:
The court found that the appellant failed to prove that the vehicle was not insured at the time of the incident, based on the discrepancies in the copies of the insurance policy and the failure to produce the original carbon copy. The court upheld the findings of the Tribunal and dismissed the appeal.
Issues: The issues included proving the cause of the accident, entitlement to compensation, and the validity of the insurance policy. The court analyzed the evidence and determined the liability of the insurance company.
Ratio Decidendi: The court emphasized the importance of the best evidence and the consequences of withholding it. It highlighted the burden of proof on the insurance company to establish the validity of the policy, especially in cases of discrepancies in the copies of the policy.
Final Decision: The court dismissed the appeal, upholding the findings of the Tribunal regarding the validity of the insurance policy and the liability of the insurance company.
1. The appellant has approached this Court being aggrieved by the judgment and order dated 6.6.2009 passed by the learned Motor Accident Claims Tribunal, Panaji thereby holding that the respondent nos. 1, 2 and 3 herein (Original claimants) were entitled to receive the total compensation of Rs.7,56,760/- and directing the respondent nos.1, 3 and 4 in the claim petition to pay the said amount jointly and severally to the claimants alongwith interest of 9% per annum from the date of filing of the petition till the date of entire payment.
2. Parties shall be hereinafter referred to as they appears in the claim petition.
3. The facts which are giving rise to the present appeal are as under:-
On 15.4.1994 at around 11.15 hours the deceased was riding scooter No. GDK-923 and was traveling from Santa Cruz towards Panaji and at that time two youngsters respondent no.2 being the rider, came from opposite direction on Yamaha motorcycle No. GDK-661, owned by the respondent no.4 and insured with the respondent no. 3 in a rash and negligent manner and lost control and dashed against the scooter of the deceased, who was thrown away and suffered several injuries, major being head injury. On 17.4.1994 deceased succumbed to injuries who was undergoing treatment at GMC. Accordingly, the claim petition came to be filed against respondent nos. 1 to 4 in the claim petition, contending therein that deceased was 36 years old at the time of accident and was working as a chargeman, Department of Electrical Engineering, Government Polytechnic, Panaji Goa and last drawn salary by him is Rs.4450/- on 31.3.1994. It was further stated in the petition that claimant no.1 was unemployed though she may be entitled to secure a Government job as per her status of educational qualification and the claimant no. 2 was mentally quasi retarded and not fully grown to her mental development and as such was a liability. It was stated that the claimant no.1 would be entitled to draw family pension of about Rs.1,000/-. It was further stated that the deceased did not have any savings and on the contrary was having loans to the tune of Rs.50,000/- which liability had now shifted upon the claimants.
4. The respondent nos. 1 and 2 in their Written statements stated that the respondent no. 2 was neither the owner nor rider of the vehicle at the relevant time and hence was not a necessary party. He has further stated that they were employed with the respondent no. 4 who was engaged in the business as cable operator and had gone to Merces for installing dish antenna and after completing the work were returning back. He has further stated that the respondent no.1 was riding the motorcycle on his left side of the road slowly and on the right of the road there was paddy spread for drying, covering more than half of the road and the deceased came towards the respondent no.1 with the scooter to the right side in order to avoid paddy. He has further stated that respondent no.1 tried to stop the motorcycle by applying brakes and the claimants came on the wrong side and dashed the motorcycle on the road along with his scooter. It was thus claimed by the respondent nos. 1 and 2, that the respondent no. 1 was neither rash nor negligent.
5. The respondent no. 3 (who is an appellant herein) filed written statement alleging that the policy of insurance bearing No. 3111150100298 was issued in favour of the respondent no. 4, covering the Yamaha motorcycle No. GDK-661 and that the said policy was valid from 3.15p.m of 15.4.1994 to midnight of 14.4.1995 and thus at the time of the alleged accident i.e. at 11.15a.m on 15.4.1995, the respondent no. 3 was not on risk. It was submitted by the respondent no. 3 that said vehicle was insured with the respondent no. 3 after the alleged accident. The respondent no. 3 therefore denied the liability to pay any compensation and generally denied the allegations made by the claimants.
6. The respondent no. 4 in his Written Statement adopted the written sta
