Court No. - 33
Case :- FIRST APPEAL FROM ORDER No.259 of 1999
Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Poonam And Another Counsel for Appellant :- Rajeev Chaddha
Hon'ble Dr. Kaushal Jayendra Thaker, J.
1. Heard Sri Rajeev Chaddha, learned counsel for the appellant. None appears for the respondent though 20 years have elapsed.
2. The appeal at the behest of Insurance company challenges the award on the ground that the vehicle was not insured with the appellant. The cover note was produced before the Tribunal by the claimants and the claims tribunal held that the driver of the truck drove the truck on 10.5.1984 rashly and negligently and caused the death of the sole bread winner of the claimants by dashing the truck with the rickshaw on the rear side. Priyank, the minor child of the claimants, was thrown of the rickshaw and died on the spot. The accident was accepted by the driver and owner of the truck. However, did not accept that the incident occurred due to negligence of the driver and that the vehicle was insured with the appellant herein. The Tribunal returned the finding about negligence of the driver of the truck and held that the child was 3 years and 10 months and awarded Rs.1,35,000/- with 12% rate of interest. From the record, it is clear that the insurance company did not file or did not lead any evidence to prove that the vehicle was not insured with it. Unfortunately, the Tribunal has also not given any categorical finding as to whether the vehicle was insured with the appellant herein or not. The owner of the driver have not stepped into the witness box. The Insurance company before the Tribunal filed its reply one of rebuttal and no insurance particulars were furnished by the owner or the claimants except that 2 the vehicle was insured with the Insurance company. The only reason given is that they could not locate the policy. The vehicle number was very much with the Insurance company. The record also does not show that the owner had filed cover note or any document. The owner was under a duty to atleast file a cover note.
3. In view of the judgment of the Apex Court in National Insurance Company Ltd. Vs. Jugal Kishore, AIR 1988 SC 719, as it is the duty of the Insurance company to file a policy once the details are given in the claim petition. The claim petition no.481 of 1984 was decreed without any finding of fact that the vehicle was insured with the appellant.
4. The preliminary objection that the truck was not insured with them, they had the number of truck which was the duty of the Insurance company to lead evidence to show that the vehicle was not involved, they have not led any evidence. However, looking to the smallness of amount, recovery rights though can be granted looking to the passage of time and in peculiar facts and circumstances of the case as the Insurance company has also failed to prove that vehicle was not insured with it, they can be granted recovery rights from the owner of the truck.
5. Hence, this appeal is partly allowed. However, because of the passage of time, the amount may not be recovered.
Order Date :- 26.7.2019 Irshad