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Gujarat High Court
Judgename :A.R.Dave, N.J.Pandya
UNITED INDIA INSURANCE COMOANY LIMITED - Appellant
Versus
RAMANBHAI KACHRABHAI RAVAL - Respondent
C.A. 5271 of 1995
Decided On : 11/23/1995
Copy of the FIR shown to us does not show any intentional act at all and the learned Tribunal Judge, while dealing with this aspect under issue no. 1, has in our opinion, correctly dealt with the situation. A faint attempt was made to make out that the FIR relised on for the purpose is not the one which submitted by the auto-rickshaw driver. However, the Company itself is relying upon it in its written statement Exh. 55 and after discussing that and other material on record the learned Judge has come to the conclusion that it is a negligent act and not an intentional one.
[Para 2]
(b) Permit - Contravention of condition - Proof of - When company raises a dispute pertaining to a permit issued by RTO, the burden is on the Company to discharge the same and it can be shown by producing the permit itself or a copy in the instant case it has not been done.
The Insurance Company, inspite of examining as a witness a clerk from the R.T. Office has rest content with getting produced only an extract of permit register. But the permit itself has not been produced. In a Full Bench decision of this court it has been held that when the Company raised a dispute pertaining to a permit issued by the RTO, the burden is on the Company to discharge the same and it can be shown by producing the permit itself or a copy. That has not been done in the instant case.
[Para 3]
(c) Insurance Company - Determination of liability - Policy issued in the month of October, 1989 that means in the 3rd month of coming into operation of the New Motor Vehicle Act - Held Companys liability will not be to the extent of Rs. 3 Lakhs as per policy but it shall be governed by the statutory provision of the new Act.
The next point raised is that the victim being a third party or a pedestrian, at best, the Companys liability will be to the extent of Rs. 3 lakhs as per the policy. However, the policy has been issued in the month of October 1989, that means, in the 3rd month of coming into operation of the New Motor Vehicle Act. The policy will therefore, be governed by the statutory provision of this New Act.
[Para 4]
(d) Transfer of Vehicle - Insurance Company can not drown its liability unless it is stated categorically by leading evidence that the Company was never put to notice about its transfer that it had never accepted the transfer and that but for the accident they would not have known about the transfer - Mere deposition of a witness that offending truck prior to 5.4.90 was registered in the name of opponent no. 2 and thereafter in the name of opponent no. 2A is not enough of an evidence to exonerate insurance company from its liability.
There is one more point so far as the Company is concerned. It is with regard to the transfer of vehicle-Opponent no. 2 was the original owner and opponent no.2A is said to be the transferee. A clerk from the Insurance Co. one Bipinbhai Exh. 56 examined on this point. He has not been cross-examined. We are shown a copy of his deposition. He merely says that the truck is registered in the name of opponent no.2A and prior to that opponent no.2 was the registered owner. He also gives the date of transfer which is 5-4-90. That is the only short deposition given by him. The learned Judge felt that this is not enough of an evidence whereby the Company can claim to be exonerated from its liability under the terms of the contract of insurance because unless it is stated categorically by the Insurance Co. by leading evidence through its witness or any other manner that the Company was never put to notice about its transfer, that it had never accepted the transfer, and that but for the incident, they would not have known about the transfer the Insurance Company cannot be exonerated from its liability. However, what the witness says is that the truck came to be transferred on 5.4.90 and beyond that he does not disclaim anything with regard to the liability. This is the reason possibly why he has not been cross-examined.
[Para 5]
( 1 ) AMENDMENT allowed. This appeal has been pressed on all counts by the Insurance Company which ordinarily it would not be permitted to. The Company, however, had taken precaution before the Motor Accident Claims tribunal (Aux) of Kheda at Nadiad in M. A. C. Petition No. 1237 of 1990 to obtain permission by filing application Exh. 41 and the learned Advocate, Mr. Parikh on behalf of the appellant was therefore, heard on all points.
( 2 ) THE first point raised was that the FIR indicates an intentional act on the part of the driver of the offending truck No. GRT 4728. However, copy of the FIR shown to us by the learned Advocate does not show any intentional act at all and the learned tribunal Judge, while dealing with this aspect under issue No. 1, has in our opinion, correctly dealt with the situation. A faint attempt was made to make out that the FIR relied on for the purpose is not one which was submitted by the auto-rickshaw driver. However, the Company itself is replying upon it its written statement Exh. 55 and after discussing that and other material on record the learned Judge has come to the conclusion that it is a negligent act and not an intentional one, as pleaded by the learned Advocate. L. A. Mr. Parikh appearing for the appellant drew our attention to para 7 of the judgment where the learned Tribunal Judge has in clear terms written that the FIR lodged by opponent No. 1 truck driver at mark 21/3 is not exhibited because the Insurance Company did not admit the same. However, it has chosen to rely on it and admit it in evidence because a certified copy has been produced. In our opinion, this course of action is correct. It is a report from the driver involved in that vehicular accident, of which, under Motor Vehicles Act, he is duty bound to make a report to the nearest police station. The FIR lodged by a driver, in such circumstances, assumes the character of statutory requirement. The certified copy therefore, can be exhibited. However, the submission of Mr. Parikh is that the FIR given by the rickshaw driver and which is exhibited on account of it having been admitted by the Insurance Co. , if read with the FIR produced by the truck driver, they would create a contradiction and the circumstances obtained from the FIR of the rickshaw driver would indicate that it was an intentional act. We are given a copy thereof, and we have gone through it and one can possibly argue that it discloses an intentional act; but a plain reading in our opinion, of that fir Exh. 51 does not indicate anywhere that it was an intentional act. It merely narrates the manner in which the incident happened. In our opinion, therefore, there is no contradiction between the two, much less, therefore, there is any possibility of it helping the company in making out its defence of the act being intentional.
( 3 ) L. A. Mr. Parikh next pointed out that at the time of the incident, the truck was used for a purpose other than the one for which it is permitted. It is a goods carrier and therefore, permit ordinarily would be for carriage of goods. From the record it is quite clear that at the time of the incident, the truck has carried a marriage party and as such, it being a goods truck, it would appear to be in contravention of the permit. However, the Insurance Company, inspite of examining as a witness a clerk from R. T. Office has rest content with getting produced only an extract of permit register. But the permit itself has not been produced. In a Full Bench decision of this Court it has held that when the Company raises a dispute pertaining to a permit issued by the RTO, the burden is on the company to discharge the same and it can be shown by producing the permit itself or a copy. That has not been done in the instant case.
( 4 ) THE next point raised by Mr. Parikh is that the victim being a third party or a pedestrian, at best, the Companys liability will be to the extent of Rs. 3 lakhs as per the policy. However, the pol
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