The Divisional Manager, National Insurance Co. Ltd. Vs. Ramakrishna Das and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. s.k. mohanty, j.1. the divisional manager of the insurance company is in appeal under section 110-d of the motor vehicles act, 1939 against the award of rs. 15,000/- passed by the second motor accident claims tribunal, berhampur, in favour of respondent no. 1 and against the appellant.2. respondent no, 1 in his application under section 110a of the act claiming compensation of rs. 15,000/- alleged that on 1-12-1982 the truck owned by respondent no. 2 being driven in rash and negligent manner ran over his daughter aged 8 to 9 years causing her instantaneous death. the owner did not enter appearance after notice. the divisional manager of the insurance company filed written statement and contested the claim for compensation at the hearing. in his written statement while denying that the truck was being driven rashly or negligently, he contended that the accident occurred due to the own negligence of the girl who fell on backside of the vehicle without the truck dashing her. as to insurance of the vehicle in question in paragraph 13 of the written statement it is stated that in absence of furnishing policy number in the petition it is not possible to answer or to affirm or admit if the respondent no. 1 (owner) was covered under any policy.3. the tribunal observed that there was no specific denial that the vehicle was insured and taking the view that it was duly insured with the appellant, ultimately held that the claim of rs. 15,000/- as compensation being reasonable, the insurance company was liable to pay the same.4. the short point canvassed on behalf of the appellant is that the claimant having not furnished particulars of the insurance and since insurance company deals with a large number of policies, it could not be possible for it to either admit or deny the fact of insurance of the vehicle in question and in this view of the matter, without any positive material on record the learned tribunal erred in law in arriving at the finding that the vehicle in question was duly insured with the appellant company. the learned counsel for the claimant, on the other hand, submitted that there being no specific denial by the insurance company, the finding arrived at by the tribunal is unassailable and the appeal must be dismissed.5. in law a person suffering injury as a result of motor accident is entitled to compensation from the person who caused the same. thus primarily the liability is that of the driver. but the owner of the motot vehicle is made liable on the principle of vicarious liability. in case of a contract of motor insurance, the insurer seeks to indemnify the owner against liability arising out of claims of third parties against the insured person out of the use of the motor vehicle. in order to fasten liability on an insurance company in a claim under section 110-a of the act, there must be material on record that the owner had insured the vehicle with that insurance company. obviously it is for the claimant to allege and prove the same if disputed. he can demand information from the owner in this regard invoking section 98 of the act. but the problem arises if the owner has not chosen to appear and service of notice on him is effected by substituted mode, as has happened in the present case. in this case the claimant has simply mentioned in item 16 of the application for compensation that the divisional manager, national insurance company, mangalebag, cuttack is the insurer of the vehicle. no further particulars as to policy number etc. have been mentioned. in such facts can it be said that it is the duty of the insurance company to make a positive statement as to whether the assertion of the claimant is true or not the learned counsel for the claimant could not lay his hand on any authority vesting a duty in this regard on the insurance company. it is common knowledge that the insurance company deals with a very large number of policies and unless some particulars are supplied, it would not be possible on the part of the insurance company to either admit or deny the fact of insurance with them. in the case at hand, merely because for some reason or other, it is difficult for the claimant to furnish either policy number and/or other relevant particulars about the insurance, an inference cannot be drawn against the appellant for not making any positive statement in the matter. therefore, the learned tribunal has erred in law in drawing the inference against the appellant because the latter has not made any categorical denial, and making the insurance company liable for the compensation amount.6. from the fact that an application for compensation under section 110-a of the act is filed against an insurance company, in absence of some materials on record, it cannot be presumed that the vehicle was insured with that company on relevant date even if the claimant and even the owner came forward and said that the vehicle was insured with that insurance company on the date of accident. it is for the claimant to collect information from the owner or otherwise and disclose sufficient material in his application indicating the fact of insurance of the vehicle with the insurance company proceeded against. this is also not enough if there is denial by the insurance company. in such event, the primary onus to prove the liability of the insurance company lay on the claimant which he can discharge by leading prima facie evidence when only the insurance company will be under on obligation to prove with reference to their record either that it was not the insurer or that in law it cannot be made liable for compensation. in the case in hand, the claimant has neither mentioned any particulars of the insurance in his application for compensation nor has adduced any evidence discharging the primary onus that lay on him. in these premises, the award fixing liability on the insurance company cannot be sustained.7. on a reference to the record, it is found that by order dated 18-10-84, the advocate for the petitioner was directed to produce the insurance particulars by 6-11-1984. on 6-11-1984, the petitioner prayed for time to file the particulars of the insurance. on 4-12-84, 10-1-85, 5-2-85 and 21-1-85 the petitioner prayed for time to file some documents. then on 15-3-85, the petitioner made a prayer said to be under section 96 of the act for a direction to the insurance company to furnish the insurance particulars. the prayer was allowed, which meant that the insurance company was directed to furnish the particulars. thereafter, the insurance company took time to file the insurance particulars and ultimately such prayer was rejected on 12-6-85 and hearing of the case was taken up on 6-7-85. on 7-8-85 when the arguments were heard, appellant filed a memo to the effect that the insurance company has not sent any policy and there being no proof of any insurance to have been made with the company, it is presumed that there is no policy. in these facts, it is considered expedient to give an opportunity to the petitioner to bring materials on record to show that in fact the appellant company was the insurer and they are liable for the compensation amount. the insurance companies being responsible bodies, it is expected that its officers will be fair enough to disclose the true state of affairs if in the meanwhile, they are able to trace out any information.8. in above premises, the appeal is allowed, impugned judgment is set aside, andthe matter is remitted to the tribunal toafford an opportunity to the claimant tofurnish the particulars of insurance and leadprima facie evidence, if the fact of insurance isdenied by the insurance company. it goeswithout saying that as the owner has notappeared and the tribunal having alreadyrecorded a finding that there was an accident,the only question that shall be adjudicated bythe tribunal is whether the insurance company was liable to pay the amount awarded. ifthe tribunal finds that the insurance company is not liable, then obviously, the liabilityshall be fixed on the owner. with theseobservations, the appeal is disposed of.