The burden of proof lies with the Insurance Company to show that the insured vehicle was not involved in the accident, and failure to adduce evidence can result in the dismissal of the appeal.

Vivek Agarwal, J.

Appellant/Insurance Co. has filed this appeal being aggrieved by award dated 16th December, 2009 passed in Claim Case No.61/2009 by MACT, Gwalior, on the ground that truck No. MP07 G 4474 was not mentioned in the FIR and it was planted subsequently.

2. It is the contention of learned counsel for the appellant that since the vehicle as is insured with the Insurance Co. was not involved in the accident, the award suffers from infirmity and deserves to be set aside. In this regard, evidence of Smt. Yashoda Bai and her cross-examination is important. Attention of this Court has been drawn to such cross-examination in which she has accepted that in her application she had admitted that she got information about the accident from Mohan Sharma. She denied the suggestion that false case has been lodged against the driver of the vehicle. Similarly attention has been drawn to the cross-examination of Mohan Sharma (PW-2) to point out that Mohan Sharma being related to claimants gave false evidence and Claims Tribunal erred in relying on such false evidence.

3. Learned counsel for the respondents Shri B.K. Sharma on the other hand submits that Claims Tribunal has appreciated all these material on record and it has come on record that Mohan Sharma is not related to the claimants. They in fact belong to different region and community and the driver and owner of the truck also belong to different religion. It is submitted that driver and owner of the truck were not examined by the Insurance Co. in support of its contention that said vehicle was not actually involved in the accident. In fact, the papers of criminal case against the said vehicle reveal that said vehicle was given in Supurdgi to the concerned owner and that vehicle was involved in the accident. It is submitted that Insurance Company also did not examine the forensic expert who had examined the offending vehicle and in absence of any burden being discharged by the Insurance Company to show that vehicle was not involved in the accident, merely a bald pleading in the written statement will not justify the appeal in the hands of Insurance Company, specially when it has failed to examine any of the witnesses in support of its case. In view of the aforesaid, learned counsel for the claimants prays for dismissal of the appeal filed by the Insurance Company.

4. Learned counsel for the appellant has placed reliance on the judgment of this High Court in the case of The Oriental Insurance Co. Ltd. v. Mahila Kalawati and others as reported in 2014 ACJ 2772 wherein it has been held that Insurance Company has every right to urge all grounds and claim petition is maintainable against owner and driver even without impleading insurer. In that case, the fact of the matter was that alleged vehicle involved in the accident was truck, whereas PW-3 stated that accident was caused by jeep, therefore, it was held that there was discrepancy in the version of nature of the vehicle involved in the accident, as a result the High Court was pleased to set aside the award against the Insurance Company. Similarly, reliance has been placed on the judgment of Supreme Court in the case of National Insurance Co. Ltd. v. Meghji Naran Soratiya and others as reported in 2009 ACJ 1441 wherein the Apex Court has been pleased to hold that if driver/owner fails to contest the claim, Tribunal may permit the insurance company to contest the same. It has been held that several false claims by claimants in collusion with owners/drivers/police/doctors are noted and if permission is not granted to the Insurance Company to contest, then it will result in success of false claims, therefore, the insurance company should not be prohibited from participating in the process of adjudication of liability and assessment of compensation.

5. As far as first judgment in the case of Oriental Insurance Co. Ltd. (supra) is concerned, in the present case, there is no ambiguity in regard to nature of the vehicle involve