A.S. Naidu, J.
1. The award dated 10th October, 1991 passed by the 2nd MACT, Cuttack in Misc. Case Nos. 120 of 1984 and 240 of 1984 is assailed by the National Insurance Company in both these appeals.
2. Mr. P.Roy, Learned Counsel for the Appellants relying on the decisions of the Supreme Court reported in 1992(2) TAC 576 (New India Assurance Co. Ltd. v. Ramani Bewa and Ors.) and 1992(2) TAC 579 (Oriental Fire and General Insurance Company v. Raghunath Muduli) submitted that in absence of insurance policy of the offending vehicle, compensation could not be saddled on the insurer alone. In the said decisions, the Supreme Court has observed as follows:
The statutory prescription is that no person against whom a claim is made shall on demand by or on behalf of the person making the claim to state whether or not he was insured in respect of that liability by any policy issued or would have been so insured if the insurer had not avoided or cancelled the policy nor shall he refuse, if he was or would have been so insured to give such particulars with respect to that policy as were specified in the certificate of insurance issued in respect thereof. The Tribunal should insist on particulars of insurance being given by the insured. The claimant has the statutory right to get it from the insured. That would help in deciding the question of liability, i.e. whether it is to be discharged by the owner of the vehicle, or any Insurance Company. In the instant case, except mention of 'New India Company, Sambalpur', there is no other material relating to any insurance. In the fitness of things therefore the owner should get an opportunity to establish that the vehicle was insured, and if it was insured with which Insurance Company.
In the case at hand, according to Mr. P. Roy, neither any insurance policy nor its number in respect of the offending vehicle was produced before the Learned Tribunal and in absence of such particulars it was not passible for the Appellant to admit or deny existence of any such policy. The Appellant took a stand that it was not possible for it to trace out the policy. Learned Tribunal however in para-15 of the award has observed that as the accident took place on 20- 3-1984 and in the written statement the Appellant had indicated that in absence of the particulars of any insurance policy it was not able to trace out the policy of the vehicle and so they did not completely deny the fact of insurance of the offending vehicle with them. On the basis of such observation the compensation has been saddled on the Appellant.
3. After going through the impugned award, on the ratio of the decisions of the Supreme Court supra this Court finds that in absence of the insurance policy or its number it was not possible for the Appellant-Insurance Company to either deny or admit its liability to pay the compensation. In consonance with the Motor Vehicles Act, the liability to pay compensation is of the owner and only by virtue of an insurance policy, the insurer is liable to reimburse and/or pay the compensation on behalf of the owner. In view of the aforesaid position of law it was the responsibility of the owner of the offending vehicle to prove that the vehicle had been insured and the insurance policy was valid on the date of the accident. In absence of such materials it was not justified to direct the Appellant to pay the compensation amount. In view such infirmity in the impugned award, this Court has no hesitation to set aside the same and remand the matters to the Learned Tribunal for a de novo hearing and fresh disposal of the cases. Liberty is granted to the owner of the offending vehicle to furnish particulars of the insurance policy. Liberty is also granted to the Appellant- Insurance Company to adduce additional/rebuttal evidence, if so advised. The Learned Tribunal is directed to dispose of the cases as expeditiously as possible, preferably within a period of eight months if there will be no impediment.
Both the Miscellaneous Appeals are accordingly disposed of. The LCRs be sent back.