1.0 This appeal is directed against the judgement and award dated 20.01.1998 passed by the Motor Accident Claims Tribunal ( Main), Nadiad in Motor Accident Claims Petition No. 1295 of 1988 wherein the Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 84,000/ at the rate of 12% from the date of application till its realization.
2.0 On 05.08.1987 at about 11.00 hours in the morning Shailesh was going on cycle near Petlad busstand. At that time, a truck bearing No. GOG 6472 came in excessive speed and in a rash and negligent manner, dashed with the cyclist causing serious injuries who died during treatment. The claimants therefore, filed the aforesaid claim petition wherein the learned Tribunal passed the aforesaid award which is challenged in the present appeal.
3.0 Learned advocate appearing for the appellant submitted that there was evidence of one Kalubhai Ramsinh at Exh. 40 who is with R.T.O at Nadiad G.G. 6472 which is registered at R.T.O. Nadiad on 03.04.1987. He has produced the receipt for insurance which is adduced at Exh. 42. Form “F” filled in by the owner of the vehicle is at Exh. 43 and copy of he register is adduced at Exh. 44. He admits that these are not certified copes but he has brought original papers. From the copies it cannot be said about the insurance policy number and only cover note is given. The R.C. Book is produced for the vehicle at Exh. 52.
4.0 Learned advocate for the appellant further submitted that evidence of one Pramodchandbhai Patel at Exh. 58 who is Assistant Divisional Manager in United India Insurance Company, has denied the policy. He admits that cover note is given to the party and it is prepared in four copies in duplicate. The register which he has brought does not have the copy of the cover note and in the register there is no cover note beginning with series of 84. He cannot therefore, say that the insured was Kantaben C .Patel.
5.0 Learned advocate for the appellant theretofore, submitted that in spite of the aforesaid facts, the leaned Tribunal has relied upon documentary evidence which was not primary evidence and held that the insurance company is liable.
6.0 Learned advocate for the appellant further submitted that opponent owner has not appeared before the learned Tribunal. In the decision of Division Bench of this court in case of Mahendrakumar Manilal Patel versus Ramjibhai Dalsibhai Chaudhary & Ors. reported in 2006 (1) GLR 637 in para 5 it is held that in the case to which reference is made, owner did not file written statement nor appeared at any stage before the Claims Tribunal to contest the claim petition, and with this background it is held that owner cannot challenge the Award on merits as no contention was raised by him before the Tribunal nor appeared before it any stage. However, in this case, he may not have filed written statement but appeared before the Tribunal during the proceedings.
7.0 Learned advocate for the respondent relied upon the document produced along with paper book on page 10 and submitted that policy number was referred. Therefore it is duty of the Insurance Company to dispute that it does not insured. From the record it is very clear that the number 84 pertains to the said office and it was incumbent upon him to find out the complete details.
8.0 From the judgement in para 7 and 8 it is specifically proved that the vehicle is not insured with insurance company. In decision of the Hon'ble Supreme Court in case of National Insurance Co. Lt. Versus Abhaysing Pratapsinh Waghela and others reported in 2008 (3) G.L.H. 791 in para 16 it is held as under:
“16. Indisputably the first respondent is a third party in relation to the contract of insurance which had been entered into by and between the appellant and the owner of the vehicle in question. We have noticed hereinbefore that a document was produced before the Tribunal. Even according to the appellant, although it was only a Motor Input Advice cum Receipt, it contained Cover Note. 279106. We, therefore, have to suppose that a Cover Note had,in fact been issued. If a Cover Note had been issued which in terms of clause (b) of subSection 1 of Section 145 of the Act would come within the purview of definition of certificate of insurance; it also would come within the purview of the definition of a insurance policy. If a Cover Note is issued, it remains valid till it is cancelled. Indisputable, the insurance policy was cancelled only after the accident took place. A finding of fact, therefore, has been arrived at that prior to the deposit of the premium of insurance in cash by the owner of the vehicle, the cover note was not cancelled.”
9.0 Heard learned advocates for the parties and perused the documents on record. The Tribunal observed that witness Kalubhai Ramsinh admitted the documents produced by him are not certified copies but has brought original papers. It is further observed that from the copies of insurance policy, number is described, only cover note is given and and in the RC book the name of Insurance Company is only”United India” is written. No cover note number or policy number is written. The Tribunal has fasten the liability on mere cryptic words “United India” which was not proper on the part of the Tribunal. It is required to be noted that there is oral testimony of Assistant Divisional Manager Mr. Promodchandra Patel at Exh.58 that their company has not issued any cover beginning with series of 84. This was completely ignored by the Tribunal. Further the Tribunal also held that it is the duty of the Insurance Company to locate the policy. It is required to be noted that the testimony of Mr. Patel Exh.58 is clear that no such cover note of the nature which is produced on the record of the case belonged to their company. In these circumstances the contention of the appellant is required to be accepted.
10.0 In the premises aforesaid, the impugned award is quashed and set aside qua the appellant Insurance Company The appeal is allowed to the aforesaid extent. The insurance company is not liable to pay compensation. The amount lying in the Tribunal shall be refunded to the Insurance Company. If the claimants have already withdrawn the amount, it will be open to the Insurance company to recover the amount from the owner of the vehicle.
(K.S. JHAVERI, J.) niru*