Accident claim - new plea & sudden at appeal stage non existence of insurance policy between owner of vehicle and insurance company - in the absence of unequivocal plea of non- existence of policy in the counter , Single judge wrongly reversed the order of the Lower tribunal - There is no limited coverage as pleaded by company in counter, the company has to pay the entire compensation and has to recover balance if any paid excess beyond the coverage from the owner = Imran Basha...appellant. M/s. United India Insurance Company Limited and another..Respondents = Cited /published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10520

Accident claim -  new plea & sudden at appeal stage  non existence of insurance policy  between owner of vehicle and insurance company -  in the absence of unequivocal plea of non- existence of policy in the counter , Single judge wrongly reversed the order of the Lower tribunal - There is no limited coverage as pleaded by company in counter, the company has to pay the entire compensation and has to recover balance if any paid excess beyond the coverage from the owner =
The very fact that the 1st respondent pleaded that the liability is subject to the statutory limits and policy conditions, discloses that it did not take an unequivocal plea of non-existence of the insurance policy.
It needs to be kept in mind that the Act was suitably amended to strengthen the
social security measure of insurance to protect the interests of victims of
accidents and approach in this behalf must be to advance the intention of the
Legislature.  If any doubt exists in this behalf, it must be read in favour of
the person for whose benefits the provisions are made At any rate, the law
permits an insurance company to pay the amount and recover the same from the  
owner of the vehicle in the event of there being any defect in the policy or the
liability having been improperly fastened upon the insurance company.
Therefore, we hold that the 1st respondent is liable to pay the amount covered
by the order passed by the Tribunal.
Though the arguments were also advanced as regards quantum of compensation, we   
are not impressed by the same.  The Tribunal has taken into account the relevant
factors and arrived at proper conclusion.
Hence, the appeal is allowed, setting aside the judgment in A.A.O.No.1170 of
1996, dated 29.11.2000.  As a result, the order, dated 20.02.1996, passed by the
Tribunal in M.V.O.P.No.182 of 1993, shall become enforceable in all respects.
There shall be no order as to costs.
The miscellaneous petition filed in this appeal shall also stand disposed of.

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL      
             

L.P.A.No.367 of 2001

05-11-2013

Imran Basha...appellant.

M/s. United India Insurance Company Limited and another..Respondents

Counsel for appellant:  Sri M.Mehdi Hussain

Counsel for Respondent no.1 : Smt. A. Malathi

<GIST:

>HEAD NOTE:  

?Cases referred

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        
AND
  THE HON'BLE SRI JUSTICE M.S.K.JAISWAL      

L.P.A.No.367 of 2001

JUDGMENT: (Per the Hon'ble Sri Justice L.Narasimha Reddy)  

This Letters Patent Appeal is filed against the judgment, dated 29.11.2000,
passed by a learned single Judge of this Court, in A.A.O.No.1170 of 1996,
preferred by the 1st respondent therein.
The AAO was filed by the 1st
respondent herein i.e. M/s. United India Insurance Company Limited, against the
order, dated 20.02.1996 passed by the Motor Accidents Claims Tribunal-cum- 
District Judge, Kurnool in M.V.O.P.No.182 of 1993.  
The order passed by the
Tribunal, awarding compensation of Rs.1,25,000/- in favour of the appellant
herein, was reversed by the learned single Judge of this Court.  
The relevant
facts are as under:
The parents of the appellant are residents of Kurnool Town.  The appellant, who
was a student of L.K.G., was hit by a Tractor, bearing No.AAM-2287, owned by the
2nd respondent, on 17.12.1992, at about 2:00 p.m.  Serious injuries were
sustained on the right hand and right leg, so much so, he suffered paralysis.
His left eye was totally affected.  In spite of prolonged treatment for about
one year, the disability remained.
The Police registered a case in Crime No.63
of 1992 against the driver of the Tractor and he was prosecuted in C.C.No.24 of
1993 on the file of the Special Judicial Second Class Magistrate, Kurnool.
The appellant, through his parents, filed the O.P. claiming compensation of
Rs.3.00 lakhs from the 2nd respondent.  Stating that, according to the
information furnished by the Police, the vehicle was insured with the 1st
respondent, they impleaded it as required under law.  The 2nd respondent
remained ex parte.  The O.P. was contested by the 1st respondent alone.
 It was
pleaded that the owner of the vehicle did not furnish the information about the
accident, and that the driver of the vehicle did not have licence.
It was also
stated that the 2nd respondent did not extend co-operation. Through its order,
dated 20.02.1996, the Tribunal awarded a sum of Rs.1,25,000/-, as compensation
and held the respondents, jointly and severally liable to pay the amount.
The 1st respondent filed A.A.O.No.1170 of 1996 before this Court challenging the
order passed by the Tribunal.  It was pleaded that the vehicle was not insured
with it.  The learned single Judge of this Court allowed AAO by taking the view
that the vehicle was not insured with the 1st respondent and thereby held that
the 1st respondent is not liable to pay the compensation.  
The said judgment is
under appeal in this L.P.A.
Sri M. Mehdi Hussain, learned counsel for the appellant, submits that in its
counter, the 1st respondent did not raise the plea of absence of insurance
policy.  He contends that it was pleaded in the counter that the owner of the
vehicle, the 2nd respondent, did not furnish any information about the
occurrence of accident, thereby implying existence of the insurance coverage.
He further submits that no oral or documentary evidence whatever was adduced to
substantiate the plea as to the absence of insurance coverage and the view taken
by the learned single Judge in this behalf, cannot be countenanced.
Smt. A. Malathi, learned counsel for the 1st respondent, on the other hand,
submits that neither the policy of insurance was filed into the Court, nor
particulars thereof were furnished and in that view of the matter, the 1st
respondent cannot be held liable.  She contends that if the counter filed by the
1st respondent before the Tribunal is read in its entirety, it would emerge that
the plea of absence of insurance coverage was also taken.
The 2nd respondent remained ex parte through out.
The occurrence of the accident and the sustaining of the injuries by the
appellant, were not at all in doubt.  Before the Tribunal, the father of the
appellant was examined as PW.1 and an eye-witness was examined as PW.2.  The    
Doctor, who treated the appellant, was examined as PW.3 to speak about the
nature of injuries noticed by him.  The certified copy of FIR in Crime No.63 of
1992 on the file of the Kurnool Traffic P.S., was filed as Ex.A.1 and the charge
sheet in C.C.No.24 of 1993 on the file of the Special Judicial Second Class
Magistrate, Kurnool, was filed as Ex.A.2.  The judgment in that case was filed
as Ex.A.4, and the wound certificate as Ex.A.3.  Exs.A.5 and A.6 are in relation
to the treatment.  It has already been mentioned that the 2nd respondent i.e.
the owner of the vehicle remained ex parte.  Though the 1st respondent filed
counter, it did not adduce any oral or documentary evidence.
It is not as if that the Tribunal jumped to immediate conclusion about the
existence of policy, without any basis.  
A detailed discussion was undertaken in
this behalf.  
It is on the basis of the information furnished by the police and
the Motor Vehicles Inspector that the name of the 1st respondent was mentioned
in column No.17 of the claim statement.  
According to the Form prescribed at the
relevant point of time, it was not necessary to furnish the number and other
particulars of insurance.  
The relevant column reads, "17. Name and address of
the Insurance Company of the vehicle".  
The particulars of the 1st respondent
have been mentioned therein.
It is quite possible that even where the name of an insurance company is
mentioned in the O.P., the policy may not exist as such.  
In such an event, the
insurance company which receives notice, must be clear in its stand.  Apart from
there not being any statement in the counter filed by the 1st respondent, an
indication was given as though there existed a policy, but the owner of the
vehicle is not co-operating.  
For instance, paras 4 and 5 of the counter read as
under:

"It is submitted that as per reliable information received by this respondent
the petitioner alone was responsible and he is guilty of contributory negligence
as he was recklessly going on the road and without observing the opposite coming
vehicles and the accident could not be averted in spite of the best care and
precautions taken by the driver of the tractor and as such the petitioner alone
as to be blamed for the occurrence and this respondent is not liable to pay any
compensation.  Further this respondent denies the fact that the driver of the
tractor was having a valid driving licence, and the said vehicle was having
valid R.C., permit, fitness certificate etc. and the said vehicle was insured
with this respondent and the policy was in force on the date and at the time of
the accident.  Even if the policy is proved the liability of this respondent is
subject to the statutory limits under M.V. Act, policy conditions and compliance
of section 64-B of Insurance Act by the insured.
It is submitted that the respondent No.1 is not co-operating with this
respondent and not contesting the case and he has not furnished any information
so far with respect to the accident, vehicular documents and policy particulars.
Hence, this respondent may kindly be permitted to plead and contest of all the
grounds that are available to the owner of the vehicle and to recover the
compensation from him in the event of passing an award against this respondent."

The very fact that the 1st respondent pleaded that the liability is subject to the statutory limits and policy conditions, discloses that it did not take an unequivocal plea of non-existence of the insurance policy.
It needs to be kept in mind that the Act was suitably amended to strengthen the
social security measure of insurance to protect the interests of victims of
accidents and approach in this behalf must be to advance the intention of the
Legislature.  If any doubt exists in this behalf, it must be read in favour of
the person for whose benefits the provisions are made.  At any rate, the law
permits an insurance company to pay the amount and recover the same from the  
owner of the vehicle in the event of there being any defect in the policy or the
liability having been improperly fastened upon the insurance company.
Therefore, we hold that the 1st respondent is liable to pay the amount covered
by the order passed by the Tribunal.
Though the arguments were also advanced as regards quantum of compensation, we   
are not impressed by the same.  The Tribunal has taken into account the relevant
factors and arrived at proper conclusion.
Hence, the appeal is allowed, setting aside the judgment in A.A.O.No.1170 of
1996, dated 29.11.2000.  As a result, the order, dated 20.02.1996, passed by the
Tribunal in M.V.O.P.No.182 of 1993, shall become enforceable in all respects.
There shall be no order as to costs.
The miscellaneous petition filed in this appeal shall also stand disposed of.

___________________  
L.NARASIMHA REDDY, J.    

_______________  
M.S.K.JAISWAL, J.
05-11-2013

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