Collector of Customs, Madras Vs. Union Carbide India Ltd. - Court Judgment

Excerpt:

.....therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the..........the tribunal should not have granted the reference. two questions are referred for consideration of this court and they are : (1) whether in the facts and circumstances of the case, the certificate of posting produced by the respondent could be deemed to be sufficient evidence of despatch of the appeals to the collector (appeals) on 16.10.1981; (2) whether such appeal could be deemed to have reached the collector (appeals) in the normal course of postal transit before the expiry of time limit of six months, i.e. before 25.10.1981. 2. there is dispute about the receipt of appeal papers sent by the assessee in this case. after looking into the evidence, the tribunal accepted the assessee's contention that the appeals were despatched on 16.10.1981 under a certificate of posting and in the normal course they should have been received in the office of the appellate authority well in time. if the tribunal believed the evidence produce by the assessee, that is an end of the matter and no question of law arises. assuming that the two questions referred to us are questions of law, they must be answered in the affirmative, in favour of the assessee and against the revenue. no costs.