UNITED INDIA INSURANCE COMPANY LIMITED Vs. GOVINDASWAMY

JUDGEMENT

(1.) This is an appeal filed by the Insurance Company against the award of the Tribunal in M.C.O.P.No.442 of 1987 dated 31-01-1996.

(2.) . The husband of one Sathiavani who died in a motor accident that took place on 16-10-79, has preferred the claim petition claiming a sum of Rs.40,000/-. To prove the claim, the petitioner himself got examined as P.W.1 and marked Exs. P-1 and P-2. On the side of the respondents no witness has been examined or any document marked. After considering the evidence, both oral and documentary, the Tribunal fixed the liability on both the vehicles namely lorry and car and directed 50 per cent of the compensation to be paid to each of the insurance companies of the lorry and the car, and awarded a sum of Rs.30,000/- as compensation. Aggrieved by this award, the United India Insurance Company Limited/fourth respondent in the O.P. has preferred this appeal.

(3.) . Learned counsel for the appellant/4th respondent submitted that on the date of the accident, the vehicle namely car which is involved in the accident, was not insured with their Insurance Company and therefore they are not liable to pay any amount towards compensation. In support of his argument, the learned counsel pointed out that they have also raised this point in their counter filed before the Tribunal, that the same has also been extracted in the award, that the Tribunal has not decided this issue as to whether the car was insured with the fourth respondent or not, and that, therefore, the award of the Tribunal is liable to be set aside. On examining the evidence produced in this case, a specific question has been put by the counsel for the 4th respondent during the cross-examination of P.W.1 that the vehicle was not insured with the fourth respondent. To that, the answer of P.W.1 was that he does not know about that. It is to be noted that apart from this evidence, the fourth respondent has not examined his witness to prove that the vehicle has not been insured with their Insurance Company. The mere suggestion to the witness cannot replace the evidence. If really the fourth respondent/appellant herein was interested in proving their case, they ought to have examined their own witness to prove that the vehicle was not insured with their Insurance company, especially when the car Number has been specifically mentioned and the branch office of the Insurance Company has also been specifically mentioned in the claim petition itself. The learned counsel referred to a judgment of the Orissa High Court in DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD.,v. RAMAKRISHNA DAS, reported in 1993 ACJ 668 where it was held: (para 5)