The need for reliable and admissible evidence to prove the cancellation of the cover note and the liability of the insurer.

P.K. Jaiswal, J.

This order shall govern the aforesaid both the appeals, i.e. M.A. No.1871 of 2009 and M.A. No.2039 of 2009, as both are arising out of the same award and relating to the same accident M.A. No. 1871 of 2009 has been filed by the Insurance Company and M.A. No.2039 of 2009 has been filed by the claimants for enhancement of the compensation.

2. The facts giving rise to these appeals are that on 7th August, 2006 at about 12.30 p.m., in the night was going from Kariya to Sailana in loading tempo bearing Engine No. R6-A-20340 and Cassis No. 005915, as per the instructions of the respondent No. 8 for carrying goods, the driver of the said loading tempo driving the said vehicle rashly and neglgiently turned the said tempo turtle and as a result, the Nanalal died. The respondent Nos. 1 to 6 had filed a claim petition u/s 163-A of the Motor Vehicles Act, 1988, against the appellant and rest of the respondents before the 1st Member, Motor Accident Claims Tribunal, Ratlam (M.P.) for compensation of Rs. 9,65,000 on the death of Nanalalji Bhill.

3. The owner and insurer of the vehicle contested the claim and have denied all the material allegations of the claim petition. The Tribunal after framing issues and after recording the evidence of the parties allowed the claim of respondent Nos. 1 to 6 and have awarded Rs. 1,45,500/- in their favour, against the appellant and owner and driver of the vehicle. Learned Counsel for the Insurance Company has contended that the learned Tribunal has failed to consider the fact that at the time of accident offending Vikram loading tempo was not insured with the appellant-Insurance Company and has grossly erred in not considering the fact that the copy of the cover note No. GD 3137067 showing the vehicle to be insured from 14th July, 2006 to 13th July, 2007, is not valid as no premium was paid to the company on the said date and all the five original copies (Exts. D-1 to D-5) of the cover note are with the appellant company, which clearly proves that the cover note was prepared but not issued to the concerned person due to non-payment of the premium amount. It is also contended that the learned Tribunal has erred in believing the photo copy of the cover note No. GD3137067 filed by the claimants and in disbelieving the version of the appellant-Insurance Company.

4. It would contend that the learned Tribunal has grossly erred in not disbelieving this fact that the said vehicle was insured with the appellant Insurance Company from 30th August, 2006 to 29th August, 2007 vide Insurance Policy No. 3003/1092044/00/000, which is shown to have been prepared in lieu of cover note No. GD3246150. The aforesaid policy shows that since premium was not paid to the appellant-Insurance Company at the time of preparation of cover note No. GD3137067, hence, it was not issued to the concerned person and all the original copies of the cover Note No. GD3137067 remind with the company and it were not issued to any one. But, when the premium was paid later on, cover note No. GD3246150 has been issued to the concerned person insuring the vehicle from 30th August, 2006 to 29th August, 2007. Hence, the vehicle was not insured with the appellant-Insurance Company on the date of accident i.e. 7th August, 2006, so the appellant Insurance Company ought to have been exonerated from its liability on this count alone. He further contended that the learned Tribunal has erred in disbelieving the statement of DW-1 Jayesh Jagarwal, who has clearly stated that the said vehicle was insured for a period from 30th August, 2006 to 29th August, 2007 vide Insurance Policy No. 3003/1092044/00/000, without risk of any passenger and the cover note No. GD3137067 filed with the application as never issued by the appellant Insurance Company and therefore, the learned Tribunal erred in affixing the liability of compensation of the appellant Insurance Company.

5. On the other hand, Mr. Manish Jain, learned Counsel for the respondents No.