BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, DARJEELING BRANCH, WEST BENGAL Vs. TSHERING DOMA TAMANG

JUDGEMENT

(1.) The present appeal preferred by the Appellant raises a singular question as to whether the Appellant could be held to be liable to pay the compensation as determined by the Motor Accident Claims Tribunal (in short "the learned Tribunal") on the basis of an insurance policy (exhibit-6) which the Appellant claim to be fake? The Appeal does not question the determination of the learned Tribunal that the Respondent Nos. 1 and 2 were entitled to compensation and the extent of compensation granted. This Court shall therefore, examine only the singular issue raised by the Appellant without disturbing the determination on other issues.

(2.) Mr. Sudesh Joshi, learned Counsel for the Appellant submitted that the impugned judgment and award both dated 30.06.2018 on the aforesaid aspect are not sustainable as the learned Tribunal could not determine whether the insurance policy (exhibit-6) exhibited by Respondent Nos. 1 and 2 was genuine or not and that the Appellant ought to have been given an opportunity to allege and prove that it was fake. Mr. Tarun Choudhary, learned Counsel for Respondent Nos. 1 and 2 submits that although, the insurance policy (exhibit-6) had been filed along with the claim petition the Appellant had failed to question the genuineness of the said document in its written objection and as such they were precluded from raising the issue belatedly. Mr. Ajay Rathi, learned Legal Aid Counsel for Respondent Nos. 3 and 4 submit that it is settled principle of law that a person who asserts a particular fact is required to affirmatively establish the same and since it was the Appellant who had asserted that the insurance policy (exhibit-6) was fake their failure to prove the fact would enure in favour of the Respondent Nos. 3 and 4.

(3.) The basic facts before the learned Tribunal for the effective determination of the present appeal were that on 29.03.2016 First Information Report (in short "the FIR") was lodged by Vaishali Thapa stating that her sister Tshering Doma Tamang (Respondent No.1) studying at Assangthang School was hit by a vehicle No.WB-76-8185 near Helipad, Namchi on 29.03.2016, she had sustained serious injuries on her left foot and evacuated to Namchi Hospital. On 14.11.2016 a claim petition was filed by Respondent No.1-a minor aged 8 years and her mother Hem Rupa Manger (Respondent No.2) before the learned Tribunal. The opposite parties were the Branch Manager, Darjeeling, New India Assurance Company Limited (Appellant), the owner of the vehicle-Mohan Sotang (Respondent No.3) and the driver of the vehicle-Subed Loksam (Respondent No.4).