VASUNDHARA Vs. ALISAB NADAF

JUDGEMENT

(1.) THIS appeal throws up a controversy of some consequence which is one of the reasons why it has not been disposed of for the last over 7 years. Briefly stated, one Ramachandra Shirahatti, hereinafter referred to as the deceased sustained fatal injuries on 31. 5. 1986 at about 10 a. m. near a petrol pump in Saun-datti town when he was fatally knocked down by autorickshaw bearing registration No. NWJ 389 which was a temporary number issued by the R. T. O. , kolhapur. The wife and children of the deceased preferred a claim before the M. A. C. T. at belgaum, and they had effectively directed the claim against the respondent No. 4 who is the new India Assurance Co. Ltd. The genesis of the controversy arises because of the fact that this was a new vehicle and it appears that as normally happens, on the payment of the premium, a cover note was issued and on the basis of this cover note the R. T. O. at Kolhapur had issued the temporary registration. As indicated by us, the accident occurred on 31. 5. 1986 and it appears that the cover note had been issued on 28. 5. 1986, i. e. , 3 days earlier and the validity of this cover note was up to 27. 6. 1986. As far as the law is concerned, there is no difficulty in the matter of holding that the insurance cover becomes valid on the issuance of the cover note and that if a liability were to arise even before the policy document has been issued by the company, that the insurance company would still be liable. In this case, however, what has happened is something entirely different.

(2.) THE New India Assurance Co. Ltd. , appeared before the M. A. C. T. and took up the contention that it cannot be held liable because the company had verified from its records and according to the insurance company cover note bearing No. 202703 of the New India Assurance Co. Ltd. , was issued on 12. 6. 1986 to one Suresh S. Pat-ane a resident of Kolhapur in respect of a Premier padmini car bearing No. MXO 5231 covering the period from 12. 6. 1986 to 11. 7. 1986. Insurance company thereby contended that cover note which according to the claimants covered the autorickshaw which was involved in the accident, in fact did not pertain to that vehicle and it pertains to some other vehicle. The contention raised therefore was that until and unless evidence can be produced before the Tribunal either in the form of a cover note or a policy document which establish that respondent No. 4 was the insurer of the autorickshaw that was involved in the accident, that no liability could devolve on the insurance company. Though this position was seriously contested by the applicants, the respondent No. 4 examined its Development Officer as d-1 and this witness has again reiterated the position that the cover note in question does not pertain to the vehicle that was involved in the accident. The learned member of the M. A. C. T. has quantified the overall compensation and has awarded a sum of Rs. 4,10,000 payable by the respondent Nos. 1 and 2 jointly, who were really the driver and the owner because the Claims tribunal has held that the material before the court does not justify the award of any amount as against the R-4 insurance company. It is against this order that the present appeal has been filed and there is also a prayer for enhancement.

(3.) THE record of this case will indicate that on more than one occasion the Division Bench of this court has tried to unravel this difficulty that has arisen obviously in order to ensure that no injustice occurs. We have, on the one hand, a situation whereby the deceased who was the sole bread-earner of the family has met with his death in the accident and his wife and two minor children have come forward to claim the compensation. The court has upheld the claim and has quantified the compensation but as always happens, a recovery directed against the owner and driver particularly in situations of this type is totally worthless for the simple reason that these persons were not even traceable and even if they are traceable, it would be impossible to recover any amount from them. The solitary question is as to whether the Tribunal was right in having exonerated the insurance company of its liability. At the same time, in view of the contention taken up by the insurance company this Court on all the earlier occasions had made very serious efforts for purposes of finding out whether in fact the error which the insurance company is pleading is genuine. Towards this end, the court had summoned several documents, the court had raised several queries and we have at the end of all this exercise found that one is virtually back at square one. What is pointed out on behalf of the insurance company is understandable because even today, their learned Counsel submitted that if the claimants are able to produce any documents or details on the basis of which it can be established that the autorickshaw was insured by R-4 that the insurance company would certainly honour the claim. Learned counsel has also pointed out to us that this is an incident relating to the year 1986 and that admittedly at that point of time the use of computers had not commenced and, therefore, the only method of tracing the policy document would be on the basis of the number and other particulars. Learned counsel states that as would be evident from what has transpired before the High Court on the earlier occasions and before the Tribunal that the insurance company itself has made all possible efforts to ascertain as to whether this vehicle was insured by the company and whether any cover note had been issued but that the company has not been able to find any positive evidence. He has submitted that even though in law the entire burden vests on claimants that the insurance company out of a sense of fairness has also done its duty by cooperating to the maximum extent and has still virtually drawn a blank. One explanation put forward in the court room is that the extract Exh. P-4 which has been obtained from the R. T. O. at Kolhapur undoubtedly gives the cover note number as 202703 but the name of the insurance company was originally typed as united India wherein the word United has been scored out and the word New has been substituted in hand. The submission can vassed is that possibly this is where the mistake has taken place and that is why his clients have not been able to trace out the policy or the details. He also placed strong reliance on the affidavit dated 24. 9. 2001 which has been filed by one S. B. Patil who was the Development Officer with this company in the year 1986 and he has stated that the cover note of that number was issued to one Patane in respect of the vehicle No. MXO 5231 on 12. 6. 1986. The learned Counsel submits that all this will very clearly indicate that there is an obvious error and that R-4 has wrongly been made a party and that the Tribunal was perfectly justified in having dismissed the liability vis-a-vis R-4. He has also placed reliance on a decision of this Court reported in ILR1997 KAR 1980 , wherein a learned single Judge of this Court had laid down that, it is the duty of the claimants or the owners of the vehicle to furnish the necessary particulars in order to show that the offending vehicle was insured on the relevant date by the insurance company and that it is not for the insurance company to prove that the vehicle is not insured with them. The submission canvassed is that the claimants have failed in their duty and that the insurance company has fully discharged its obligations by establishing that the cover note does not cover this vehicle.