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2019 Supreme(Bom) 2225
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, J.
New India Assurance Co Ltd , Mumbai - Appellant
Versus
Mohd Wasim Abdul Latif Shaikh - Respondent
First Appeal No. 804 of 2013
Decided On : 25-11-2019
D.R. Mahadik, Advocate, T.J. Mendon, Advocate
The burden of proof in insurance claims shifts to the insurer if the claimant provides sufficient evidence of coverage. Failure to produce evidence to disprove coverage can result in a decision in favor of the claimant.
Headnote:
Insurance - Motor Accident Claim - 11th July, 2004 - M.A.C.T. - [Motor Vehicles Act, 1988, Section 149(2)(a), Section 149(2)(c)] - The court discussed the details of the insurance policy, burden of proof, and the relevance of RTO documents in determining the insurance coverage of the offending vehicle. The judgment highlighted the importance of examining witnesses and the applicability of previous court decisions in similar cases.
Fact of the Case:
The applicant was injured in a motor accident and filed a claim for compensation against the appellant insurance company. The appellant contested the claim, alleging that the vehicle involved was not insured with them.
Finding of the Court:
The court found that the details of the insurance policy provided by the applicant, along with RTO documents, indicated that the offending vehicle was insured with the appellant. The court emphasized the appellant's failure to produce evidence to disprove the insurance coverage.
Issues: Dispute over insurance coverage, burden of proof, relevance of RTO documents, and examination of witnesses.
Ratio Decidendi: The burden of proof shifted to the appellant to disprove the insurance coverage, and their failure to produce evidence led to the court's decision in favor of the applicant. Previous court decisions on similar cases were considered in determining the outcome.
Final Decision: The appeal was dismissed, and the appellant was directed to pay the compensation amount. The court emphasized the importance of examining witnesses and following established legal principles.
JUDGMENT
R D Dhanuka, J. - By this first appeal, the appellant (original respondent no.2) has impugned the judgment and order dated 2nd November,2011 passed by the M.A.C.T., Mumbai allowing the Application No.3581 of 2005 filed by the respondent no.1 herein (original applicant) directing the appellant to pay a sum of Rs.90,000/- jointly with the owner of the offending vehicle to the applicant at the rate of 9.25% from the date of the claim till realization. By consent of parties, the first appeal is heard finally.
2. Learned counsel for the respondent no.1 tendered compilation of pleadings, documents and evidence forming part of the record before the M.A.C.T. Some of the relevant facts for the purpose of deciding this appeal are as under :-
3. On 11th July, 2004, the applicant was travelling as a passenger in a auto-rickshaw bearing no. MH-02-QA-9127 from Malvani to Bandra Linking Road when the said auto-rickshaw dashed against the divider of the road and as a result thereof, the accident took place. It was the case of the applicant before the Tribunal that the said auto-rickshaw was insured with the appellant insurance company. The said autorickshaw failed to apply the breaks effectively or on sufficient time. As a result of the said accident, the said applicant sustained injury and pain. It is the case of the applicant that he could not resume work. The applicant apprehended permanent disability and/or defect and/or deformity to the affected limbs.
4. The applicant accordingly filed a claim for compensation before the M.A.C.T.Mumbai. The claim was resisted by the appellant by filing a written statement on 16th October,2009. It was alleged in the written statement that the vehicle allegedly involved in the accident on 11th July, 2004 bearing registration no. MH-02-A-9127 was not insured with the appellant on the material date and time of the accident. Without prejudice to the said contention, it was alleged by the appellant that it was not aware of the correctness of the contents of the paragraphs 1 to 18 of the application made by the original applicant.
5. In paragraph (4) of the said written statement, it was alleged by the appellant that the RTO certificate dated 28th July, 2004 was in respect of the vehicle no. MH-02-QA-9127 which indicated that the number of the vehicle was MH-02-A-9127 as on 12th July, 2004 and also stating the insurance certificate number 14369 which was totally incomplete and vague. The appellant could not locate the Divisional office number or the regional office.
6. The original applicant examined himself as one of the witness and affidavit in lieu of examination of chief in support of his claim. He was cross examined by the learned counsel for the appellant. The original applicant also examined an orthopaedic surgeon in support of the quantification of claim made by the applicant. The applicant also examined Mr.Kedar Atmaram Lavekar as one of the witness who was junior clerk in the office of the R.T.O. He was cross examined by the applicant''s advocate. The said witness also produced various documents. The appellant did not examine the witness.
7. Mr. Mahadik, learned counsel for the appellant invited my attention to various findings rendered by the M.A.C.T. Mumbai in the impugned judgment and order and also invited my attention to the certificate dated 28th July, 2004 issued by the RTO and would submit that the said certificate did not indicate any details of the alleged insurance policy taken by the owner of the auto-rickshaw. He submits that in view of such incomplete details furnished in the said certificate issued by the RTO Mumbai, the appellant could not verify the exact details of the policy alleged to have been taken by the owner of the auto-rickshaw i.e. the original opponent no.1. He submits that the certificate issued by the RTO is not conclusive on the issue whether the owner of the offending vehicle had availed of any insurance policy from the insurance company or not. In support of t
