Judgment:
Bhaskar Bhattacharya and Tapan Kumar Dutt, JJ.
1. Instead of disposal of the application, we propose to hear out the appeal itself by treating it as on day's list.
2. This appeal is at the instance of insurance company and is directed against an award dated 11.8.2008 passed by the Motor Accidents Claims Tribunal and the Judge, Second Bench, City Civil Court at Calcutta in M.J.C. Case No. 44 of 1986 thereby awarding compensation of Rs. 1,96,490 with interest at the rate of 9 per cent per annum from the date of award till actual payment against the insurance company.
3. Being dissatisfied, appellant insurance company has come up with the present appeal.
4. At the very outset, Mr. Singh, the learned advocate appearing on behalf of the appellant, assiduously contended before us that the learned Tribunal erred in law in holding that his client admitted that the vehicle was covered by the insurance at the relevant point of time by totally overlooking the fact that para 7 of the written statement was subsequently interpolated. According to Mr. Rajesh Singh in the original written statement his client stated as follows:
That this opposite party has no knowledge whether the vehicle No. OSC 9495 was covered at the material time under a policy of insurance issued by this opposite party.
5. It appears from the record that the words 'no knowledge' as appearing on the first line of para 7 of the written statement have been penned through and in place of those words, it is inserted 'admitted that'. According to Mr. Singh, inserting the words 'admitted that' is an act of interpolation and on that basis the learned Tribunal proceeded as if his client had admitted the fact that the vehicle in question was covered by insurance.
6. We, however, find that the aforesaid submission of Mr. Singh is not tenable in the eyes of law for twofold reasons:
First, in a previous proceeding under Section 92A of the Act, the insurance company suffered an award on contested hearing, Exh. 8, but the said award was not challenged and has attained finality. Therefore, the issue whether the vehicle in question was insured by the appellant cannot be reopened in the subsequent proceeding under Section 110-A of the old Motor Vehicles Act when the insurance company has accepted the award passed in the earlier proceeding under Section 92-A of the Act in respect of selfsame accident. The said finding in the earlier proceeding is res judicata in the present proceeding.
Secondly, the fact that the words 'admitted that' were consciously inserted would appear from the statement made in para 11 of the written statement which is quoted below:
This opposite party submits that the opposite party No. 1 (owner) is not cooperating with this opposite party as required by the conditions of the policy. Therefore, this opposite party is not aware: (a) Whether the opposite party No. 1 continues to be the owner of the vehicle bearing registration No. OSC 9495?; (b) Whether there was any violation of the terms and conditions of the insurance policy?; and (c) Whether the documents of the vehicle (R.C. book, route permit, certificate of fitness) as also the driver's licence were in force at the time of accident? The above matters (a) to (c) are being enquired into and this opposite party reserves the right to submit additional written statement in this regard, if necessary.
7. Unless the coverage of the policy is admitted by the insurance company, the statements made in para 11 of the written statement, as quoted above, became insignificant and no question of making enquiry with the owner of the vehicle arose. Even the insurance company did not feel the necessity of filing additional written statement after the alleged enquiry was over although leave was craved in the earlier para. In this case, in support of such a defence, even no evidence had been adduced on behalf of the insurance company. If the insurance company wants to take such a defence that vehicle was not covered by insurance and the assertion of the claimants is false, the competent officer of the insurance company who was in-charge of all the documents must come before the court and face cross-examination at the instance of the claimants on this point. The insurance company after taking such a plea cannot avoid the witness-box to face cross-examination of the claimants on this point. In such circumstances the court is entitled to draw adverse presumption against the insurance company for not giving evidence.
8. We, thus, find no substance in the first contention of Mr. Singh that the vehicle was not covered by the insurance at the relevant point of time.
9. Mr. Singh next contended that the amount of compensation awarded by the Tribunal was excessive. In our opinion, in the present case, the insurance company having failed to obtain any leave in terms of Section 110-C(2A) of the old Motor Vehicles Act, it is not entitled to take the plea of adequacy of compensation in the appeal before us.
10. Both the points taken by Mr. Singh having failed, we find no merit in this appeal and consequently the same is dismissed without any order as to costs.
11. In view of disposal of the appeal itself the connected application for stay being C.A.N. No. 896 of 2009 has become infructuous and the same is disposed of accordingly.
12. It appears that the claimants have filed a cross-appeal being F.M.A.T. No. 1578 of 2008 against the selfsame award thereby claiming interest from the date of filing of the application and that too at a higher rate.
13. Mr. Singh appearing on behalf of the insurance company submits that a copy of memorandum of such appeal has not been served upon him.
14. In view of such fact we direct the learned advocate for the claimants to serve the copy of the memorandum of appeal upon Mr. Singh.
15. Let the said appeal being F.M.A.T. No. 1578 of 2008 come up for hearing at the top on next Monday.
16. Mr. Rajesh Singh is directed to seek requisite instruction from his client in the meantime.
17. Xerox certified copies of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities.