National Insurance Company Ltd., Baripada Branch Vs. Anand and Ananda Charan Reddy 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]. - in view of the fact that the insurance company failed to produce the policy and the seizure-list showed that a certificate of insurance was seized at the time of accident, the tribunal held that the vehicle was insured with the appellant and accordingly, it was liable to satisfy the award. this the owner failed to do in spite of an order of the tribunal to that effect. 10. the learned counsel for the owner submits that as the insurance company failed to produce the insurance policy, the tribunal was justified in drawing an adverse inference against it. 12. the learned tribunal also seems to have over looked its subsequent order dated 13-3-1991 whereby the owner was called upon to produce the policy or furnish the policy particulars which the owner failed to do. by completely ignoring these material facts, the tribunal has strangely enough came to the conclusion that the vehicle was insured with the appellant by drawing an adverse inference on its failure to file the insurance policy. , failed to produce the same, the tribunal would have been justified in drawing an adverse inference against it.p.c. naik, j.1. the second motor accident claims tribunal (northern division) sambalpur, camp at koonjhar passed an award of rs.68,000/- in favour of the claimants and against the owner and insurer. aggrieved with the award, the insurance company has filed this appeal.2. on 21-3-1981, the claimant (respondent no. 1) was knocked down by a tempo bearing registration no. orj 3214. as a result of the accident, he sustained fracture of his left leg and right foot. in spite of treatment his right foot could not be saved and has to be amputated. alleging that the accident was due to rashness and negligence of the tempo driver, the claimant claimed rs. 1,50,000/- as compensation from the owner and alleged insurer of the vehicle.3. the owner denied its liability stating that his vehicle was not involved in an accident. a plea of limitation was also raised. he also pleaded that as his vehicle was insured, the liability, if any, was to be saddled on the insurer.the insurance company (appellant) denied its liability and submitted that in the absence of insurance particulars, i.e. policy number and date of issuance of the policy, it was not possible for it to admit that the tempo was insured with it.4. subsequently, on 18-3-1991, a memo was filed on behalf of the insurance company praying that the owner be directed to disclose the policy particulars so as to enable it to verify whether or not the vehicle was insured with it. on 13-3-1991, the tribunal directed the owner to produce the policy or disclose the number of policy. thereafter, on 18-3-91, the owner filed an application praying for onemonth's time to comply with the order dated 13-3-1991. however, the owner neither produced the policy nor disclosed the insurance particulars.5. the tribunal held that as the accident was due to rashness and negligence of the tempo driver the claimant was entitled to compensation and accordingly, an award in the sum of rs. 65,000/- was passed in his favour. in view of the fact that the insurance company failed to produce the policy and the seizure-list showed that a certificate of insurance was seized at the time of accident, the tribunal held that the vehicle was insured with the appellant and accordingly, it was liable to satisfy the award.6. learned counsel for the appellant submits that the tribunal was not justified in holding that the vehicle was insured with it and saddling the liability on it. he also submits that the award is excessive and needs to be modified. learned counsel for the owner (respondent no. 2) submits, the tribunal was justified in holding that the vehicle was insured with the appellant and accordingly the liability was rightly saddled on it. alternatively, he submits that as the delay was condoned without notice to it the award should be set aside and the matter remitted with a direction to the tribunal to decide the question of limitation afresh after due notice to the owner and the insurer. learned counsel for the claimant (respondent no. 1) submits that on the facts and circumstances of the case record the award is proper and calls for no interference.7. it is true that the record discloses that though the accident took place on 23-8-1981, the claim petition was filed on 12-1-1989 i.e. nearly 8 years after the accident. it is unfortunate that the tribunal condoned the delay without notice to the opposite parties. the tribunal seems to have completely overlooked the fact that delay bars a remedy and if the right to a remedy is to be restored, it is but proper that notice is issued to the other side and they are heard. it need not be emphasised that no orders which might prejudicially affect the other side should be passed behind its back. this court should not be required topoint out such elementary things to the tribunal. however, as the owner has not challenged the award, the objection cannot be entertained in this appeal.8. as the pleas raised by the insurer on merits cannot be entertained, the only contention which requires consideration is whether or not, on the facts and circumstances of the case, the tribunal was justified in drawing an inference against the appellant and holding it liable to satisfy the award.9. it is an admitted fact that the insurance company had raised a specific plea that the vehicle was not insured with it. it is also a fact that it filed a memo requiring the owner to produce the policy or disclose the policy particulars. this the owner failed to do in spite of an order of the tribunal to that effect. the seizure-list, no doubt, shew that a certificate of insurance was seized but neither the number of the certificate nor the name of the insurance company which issued the insurance certificate is mentioned in that list, it is in the light of the above circumstances, the question whether or not a case for drawing an adverse inference against the insurer is to be considered.10. the learned counsel for the owner submits that as the insurance company failed to produce the insurance policy, the tribunal was justified in drawing an adverse inference against it. placing reliance on national insurance co. ltd., new delhi v. jugal kishore, air 1988 sc 719, he submits that if the insurance co. wanted to avoid its liability, it was necessary for it to produce the insurance policy and as the policy was not produced, the tribunal was justified in drawing as adverse inference against it.11. having considered the rival contentions, i am of the opinion that a case for interference in appeal has been made out. neither the owner nor the claimant has adduced any evidence to show that the vehicle in question was insured with the appellant. even the seizure list on which much emphasis has been laid down by the tribunal, does not indicate that the vehicle in question was insured with the national insurance co. ltd.the tribunal has no doubt made a reference to its order dated 19-1-1991, whereby the insurance co. was directed to produce the policy and registers but which particular policy or which particular register was required to be produced has not been mentioned in the order. i am really at a loss to understand whether the learned tribunal required the insurance company to produce each and every policy and each and every register in its office or what. this is something which probably the presiding officer alone can explain. it is surprising as to how such an omnibus order case to be passed. if the tribunal desires a party to produce some documents in court, it is expected to specify the document that is to be produced. a party cannot be expected to produce in court each and every available document which is in his possession. under the circumstances, non-production of all policies and all registers cannot, be considered as an adverse circumstance against the appellant.12. the learned tribunal also seems to have over looked its subsequent order dated 13-3-1991 whereby the owner was called upon to produce the policy or furnish the policy particulars which the owner failed to do. by completely ignoring these material facts, the tribunal has strangely enough came to the conclusion that the vehicle was insured with the appellant by drawing an adverse inference on its failure to file the insurance policy. needless to say, the reasoning of the tribunal on the facts and circumstances of the case, does not appeal to this court, (sic) really strange as to how and on what basis the insurance company was called upon to produce and documents particulars of which were not furnished by one who desired its production. it should not be forgotten that an insurance company insures hundreds and thousands of vehicles and is not expected to go through hundreds and thousands of policies to ascertain whether or not, a particular vehicle is insured with it. it is only when the name of the insurance company and the particulars of the policy or at least the policy number is furnished, can the insurance company be expected to produce the same. in theinstant case, had the name of the insurance co. and the policy number been furnished by either the claimant or the owner and yet, the insurance co., failed to produce the same, the tribunal would have been justified in drawing an adverse inference against it. but, on the facts as they stand, the tribunal committed a serious error in drawing an adverse inference against the insurance co. the finding that the vehicle was insured with the appellant cannot therefore he sustained and is accordingly, set aside. it necessarily follows, that the liability which had been saddled on the insurer is also liable to be set aside and, it is set aside accordingly.13. in view of the discussions aforesaid, the appeal is allowed. the award in so far as it makes the insurer liable is set aside and, it is ordered that the entire liability together with costs and interest awarded by the tribunal will be borne by the owner/respondent no. 2. under the circumstances of the case, there shall be no order as to costs. the amount deposited by the appellant be refunded to it.