National Insurance Co. Ltd. Vs. Sk. Azizul and anr. - Court Judgment

J.K. Biswas, J.

1. This appeal under section 173 of the Motor Vehicles Act, 1988 has been preferred against an order dated 22nd January, 1992 passed by the learned Judge of the Motor Accident Claims Tribunal in MIC No. 35/90. The order was passed on an application under section 140 filed by the claimant-respondent No. 1. By the impugned order the learned Tribunal was pleased to direct the opposite parties, that is the appellant insurer and the opposite party No. 2, the owner of the vehicle to pay a sum of Rs. 12,000/-.

2. On 23rd November 1989 one Azizul suffered serious injuries in an accident in which the vehicle bearing registration No. WBY 5158 (a private bus) owned by the opposite party No. 2 was involved. The vehicle in question was insured with the appellant, the Insurance Company. Consequent upon the accident and the injuries suffered by the said Azizul, the claimant (the opposite party No. 1) filed an application under section 140 of the Motor Vehicles Act, before the learned Tribunal. On service of notice of the proceeding that was initiated on the basis of such application under section 140, both the appellant and the owner of the vehicle entered appearance. On 22nd January, 1992, the application under section 140 was posted for hearing. The appellant Insurance Company duly filed hazira, while the owner of the vehicle chose not to be present on that date'. At the time of hearing, the appellant Insurance Company also chose not to be available. In the circumstances, the learned Tribunal took up the matter exparte. The documents produced by the claimant were exhibited. Amongst the documents a Xerox copy of the insurance policy was exhibited. The policy showed that the offending vehicle was insured with the appellant insurer. After considering the materials on record, and the documentary evidence produced by the claimant, the learned Tribunal passed the impugned order.

3. The learned counsel for the appellant contends that the impugned order, although was passed exparte as the appellant was not diligent enough to contest the case, cannot be sustained on the ground that the offending vehicle was actually not insured with the appellant insurer, and on the basis of a Xerox copy of the policy, the learned Tribunal should not have granted relief to the claimant. He contends that in terms of provisions contained in Rules 329, 330 and 339, the claimant, for the purpose of filing the application under section 140 was entitled to have the requisite information from the registering authority under the Motor Vehicles Act free of charges and the claimant was required to produce such authenticated information in prescribed (Form Comp-C) in support of the application under section 140. It is his further contention, in the absence of such information produced before the learned Tribunal in prescribed form, the learned Tribunal should not have accepted the unauthorized xerox copy of the policy produced by the claimant in support of the claim for compensation. In support of his contention that the xerox copy of the policy should not have been considered to be a sufficient piece of documentary evidence for the purpose of granting relief by the Tribunal, the learned counsel places reliance on the Supreme Court decision given in the case of United India Insurance Company Ltd. v. Anbari and Ors., reported in : (2000)10SCC523 .

4. The learned counsel for the respondent-claimant disputes the correctness of the contentions raised by the learned counsel for the appellant. He submits that in the absence of challenge to the genuineness of the xerox copy of the insurance policy produced by the claimant before the learned Tribunal, it was absolutely within its powers and jurisdiction to pass the order granting compensation under section 140. He submits that the appellant Insurance Company having not contested the proceeding before the learned Tribunal, at the appellate stage is not entitled to raise the contention that the offending vehicle was actually not insured with the appellant-Insurance Company.

5. After hearing the learned counsel for the parties, perusing the materials on record, and after considering the decision cited on behalf of the bar, we are of the considered view, the present appeal has no merit.

6. The admitted position is that the appellant-Insurance Company simply chose not to contest the proceeding before the learned Tribunal, although filed hazira on the date of hearing when the impugned order was passed. There is absolutely no justification as to why inspite of having sufficient opportunity the appellant-Insurance Company did not raise the all important contention before the learned Tribunal that the claim petition must fail as against the appellant, because the offending vehicle was not insured with the appellant. The owner of the vehicle for undisclosed reasons chose the same path. It is absolutely immaterial as to how and from which source the claimant had obtained a xerox copy of the insurance policy. The fact remains that the insurance policy showed on the face of it that the offending vehicle was insured with the appellant-Insurance Company. It is essentially a question of fact whether the endorsements appearing on the face of the xerox copy of the policy were genuine. The Insurance Company having not challenged the genuineness of the endorsements appearing on the insurance policy, simply allowed the proceeding to proceed before the learned Tribunal. This being the position, in our considered view, the Tribunal was right in accepting the xerox copy of the insurance policy and passing the order in question. The Tribunal was required to make necessary enquiries before passing the order under section 140. It was not bound by the strict Rules of evidence, while it was definitely required to be satisfied about the genuineness of the documents produced by the claimant in support of the claim petition. When the Insurance Company simply disappeared at the time of hearing, there was no reason at all for the learned Tribunal not to accept the xerox copy of the insurance policy produced by the claimant as a genuine document. The Tribunal was not under any statutory obligation to insist on production of a certificate issued by the Registering authority in Form Comp-C. It is a proceeding under section 140 and in the absence of any challenge thrown either by the Insurance Company or by the owner of the vehicle, in our considered view the Tribunal was within its jurisdiction to proceed to decide the matter on the basis of the documents which could be accepted on their face value. The decision cited by the learned counsel for the appellant, in our considered view does not apply to the present case, because in the case relied on the genuineness of the photo copy of the driving licence produced by the driver was disputed by the Insurance Company. In such context, Their Lordships of the Supreme Court held that the photo copy of the driving licence could not be accepted for coming to the conclusion that the driver had a valid licence. In the present proceeding there is no dispute that xerox copy of the insurance policy produced by the claimant remained an unchallenged pice of document, and its genuineness was not challenged by any of the opposite parties before the learned Tribunal.

7. For the foregoing reasons, we find no merit in the present appeal, and hence the same is hereby dismissed.

8. In the facts and circumstances of the case, there will be no order as to costs. The claimant will be entitled to realize the amount deposited by the appellant with the Registrar General of this Court.

Let xerox certified copy of this judgment be made available to the learned advocates appearing for the parties.

A. Chakrabarti, J.

9. I agree.