MALLIKA Vs. SAMUEL GEORGE

JUDGEMENT

(1.) The owner of a stage carriage, which was registered as KLH 5952 and was insured with the third respondent the New India Assurance Company Ltd. is the appellant. She was the Ist respondent in OP. No. 278 of 1980 before the Motor Accident Claims Tribunal, Ernakulam. That was an application filed under S.110A of the Motor Vehicles Act and was filed by the father of a girl-Vimala-aged 18 years who was studying in the Pre Degree Class and who died as a result of an accident involving the above vehicle on 22-2-1978. She was thrown out of the bus. The accident occurred at about 9.00 AM. and the girl succumbed to her injuries at 7.45 P.M. The applicant claimed an amount of Rs. 25,000/- as compensation. It is the applicant's case that the accident occurred due to the rashness and negligence of the driver of the stage carriage. The applicant examined one witness and marked Exts. Al to A10. No witnesses were examined on the side of the respondents.

(2.) On the basis of the oral and documentary evidence, the Tribunal found that the accident occurred due to the negligence of the driver of the appellant. It found further that the vehicle was covered by an insurance policy. The appellant had not produced the sane. Nor did the Insurance Company produce copy thereof. The Tribunal found that the applicant was entitled to an amount of Rs. 15,000/- as compensation for the death of his daughter. It found further that since the policy was not produced, it had to be presumed that it was an "act policy". The Tribunal therefore held that the liability of the insurer would be. limited to Rs. 5,000/-. The insured-owner was required to pay the balance amount of Rs. 10,000/-. It is against that award that the appellant has filed this appeal.

(3.) Counsel for the appellant did not challenge the findings relating to the rashness and negligence of the driver. Nor did he assail seriously the quantum of compensation awarded by the Tribunal. His main submission was that the Tribunal ought to have assumed that the policy was comprehensive, since the insurer had not produced a copy of the Insurance policy. Counsel submitted further that according to the law as it was understood at the time when the Tribunal disposed of the application, the Insurer ought to have produced at least a copy of the policy, and in the absence of the policy, the Tribunal ought to have inferred that the insurer was liable to cover risks other than or greater than that covered by S.95(2)(b) of the Motor Vehicles Act. Counsel submitted further that be may at least be given an opportunity now to produce the original policy which, be believes, may be a comprehensive policy.