ORIENTAL INSURANCE COMPANY LIMITED BANGALORE Vs. S SAVTTHA

JUDGEMENT

(1.) Heard the appellant's learned Counsel. This is an appeal where, it is incumbent that this Court will have to clarify a rather delicate and unusual situation that is not unfamiliar before the Motor Accident Claims Tribunals. The issue that is canvassed is with regard to the liability of the appellant-Insurance Company for payment of compensation awarded to the claimant who was a Bus Conductor and who died as a result of being run over by a tempo on 26-6-1983 at Pandavapura. The claimant is the widow of the deceased who was a Bus Conductor and who had got down from his vehicle and was proceeding towards the Town Hall for some refreshments. The tempo is alleged to have been driven at a high speed and had knocked down the deceased who died as a result of the injuries sustained. A claim petition was preferred before the Motor Accident Claims Tribunal, Mandya, by the widow in which she cited the Oriental Fire and General Insurance Company Limited, as respondent 4 in its capacity as the insurer of the vehicle.

(2.) In the written statement that was filed, the first sentence of paragraph 3 reads as follows:

(3.) The appellants learned Advocate submitted that the record of this case is as clear as daylight insofar as apart from merely stating that the insurer of the vehicle is the Oriental Fire and General Insurance Company Limited in the claim form, that no further evidence was led by the claimant to support this plea as is evident from the record. He draws my attention to the aforesaid denial in the written statement and he submits that the foisting of the liability on the Insurance Company-respondent 4 is a clear error and that the award requires modification as far as this is concerned. In support of his submission, he has placed strong reliance on a decisio of the Orissa High Court in Divisional Manager, National Insurance Co. Ltd, v Ramakrishna Das and Another , the Court had occasion to analyse the situation in which an Insurance Company is liable to pay the compensation, and undoubtedly, the liability is that of the owner which is indemnified by the Insurance Company. In these situations, learned Advocate submits that the contract between the owner and the Insurance Company must be established to have been in existence and therefore, that the Court cannot presume an automatic liability in the absence of this aspect of the matter being specifically established. Relying on the observations in that judgment, learned Advocate submitted that the onus of establishing that the Insurance Company is liable, in the application filed under Section 110-A of the Motor Vehicles Act lies squarely on the claimant. This presupposes the fact that the claimant must establish the existence of the policy by furnishing details thereof and if this is not done, that the Insurance Company cannot be held liable in law. Learned Advocate emphasises very strongly that in the present case the Insurance Company has in unequivocal terms denied its liability and that the Trial Court has not, anywhere in the judgment indicated on what basis this defence of denial has been rejected. He therefore submits that in the present incident, the award in question vis-a-vis the Insurance Company must be set aside.