The central legal point established in the judgment is the requirement for proof of insurance before an insurer can be held liable to indemnify the owner of the vehicle.

I.A. Ansari, J.

1. This is an appeal preferred under Section 173 of the Motor Vehicles Act, 1988, (in short, 'the MV Act') against the award, dated 18.07.2003, passed in MAC Case No. 94/98, by the learned Member Motor Accident Claims Tribunal, Goalpara. By the award, impugned in this appeal, the learned Tribunal has granted to the claimants respondents a sum of Rs. 1,52,000/- as compensation with interest at the rate of 9% per annum with effect from the date of making of the claim application until payment thereof. By the impugned award, the learned Tribunal has further directed the present appellant to make payment of the said amount within two months from the date of making of the order treating the present appellant as the insurer of the offending vehicle. Aggrieved by the award, the insurer has preferred this appeal.

2. I have heard Mr. S. Dutta, learned Counsel for the insurer appellant, and Mr. K. Basar, learned Counsel for the claimants respondents. None has appeared on behalf of the owner of the offending vehicle.

3. While considering the present appeal, what needs to be noted is that the factum of accident having been caused by a truck, bearing Registration No. AP-16-9718, is not in dispute. Even the quantum of compensation, awarded in favour of the claimants-respondents, is not in dispute. What the appellant disputes is that the vehicle, in question stood insured, on the date of the accident, with the appellant as insurer.

4. The sole question, therefore, which has been raised and needs to be decided, in the present appeal, is this: whether the offending vehicle stood insured, with the present appellant as its insurer on the date of the said accident?

5. While considering the question posed above, it needs to be noted that the Insurance company had filed, on 05.10.2002, an additional written statement in the said claim proceeding. Para 2 of the additional affidavit read:

2. That the opp. Party No. 1 submits after careful investigation of the matter that the vehicle No. AP-16/97/18 has not been insured by the opp. Party No. 1 and as such, the opposite party No. 1 is not liable to pay any compensation whatsoever to the claimants.

6. A bare reading of what was pleaded in para 2 of the appellant's additional written statement, it becomes clear that the present appellant disowned its liability as insurer by denying and disputing the fact that the vehicle, in question, stood insured with the appellant as its insurer on the date of the accident. Despite such a specific stand which the insurer company had taken, the learned Tribunal did not frame any specific issue with regard to the question as to whether the offending vehicle stood insured, on the date of the accident, with the present appellant as insurer or not. Without determination of the question as to whether the offending vehicle aforementioned stood insured with the present appellant as insurer, direction has been given by the learned Tribunal to the present appellant to pay the amount, which has been determined by it as the compensation payable to the claimants.

7. It is trite that an insurer merely indemnifies the owner of the vehicle, who may be liable to pay compensation. The primary liability for paying compensation is, thus, on the owner of the offending vehicle and the insurer is merely an indemnifier. Without proof of the fact as to whether a person is or is not an insurer, such a person cannot be saddled with the liability to indemnify the owner.

8. Referring to the decision, in National Insurance Co. Ltd. v. Jugal Kishore and Ors. [1988] 2 SCR 910, Mr. Basar, learned Counsel for the claimants-respondents, has contended that it is the duty of the insurance company to produce the relevant insurance policy in a claim proceeding.

9. While considering the decision, in Jugal Kishore (supra), what needs to be borne in mind is that a decision, even if it be of the Apex Court, cannot be read as a statute and has to be considered in the context of the facts of the gi