Sunday 3 May 2015

When Insurance company can not be made liable to pay compensation?



In   the   present   case,   the   owner   has   neither   filed 
written   statement   nor   has   participated   in   the   proceedings   nor 
has adduced any evidence in support of a plea that the premium 
was   paid   on   23.01.2008   in   response   to   which   the   policy   was 
issued   on   28.01.2008.     The   owner   has   failed   to   discharge   his 
burden and hence the Insurance Company cannot be held jointly 
and   severally   liable   to   pay   the   compensation   along   with   the 
committed  an   error   in  holding  that   the  Insurance   Company  is 
liable for payment of compensation.   The award to that extent 
cannot, therefore, be sustained.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
FIRST APPEAL  NO.  1334  OF  2013


Bajaj Allianz General Insurance
Co. Ltd., 
Vs
Smt. Pushpa @ Bebi Bholanath

CORAM :   R.K. DESHPANDE, J.
SEPTEMBER 10, 2014.
        Citation;2015(2) ALLMR895

This   appeal   preferred   by   the   Insurance   Company 
challenges   the   Award   dated   12.07.2012   passed   by   the   Motor 
Accident Claims Tribunal, Wardha, in M.A.C.P
. No. 48 of 2008, 
only to the extent it holds the Insurance Company liable to pay 
the   compensation   and   the   interest   along   with   the   owner   and 
Driver   of   the   vehicle.     It   was   a   specific   stand   taken   by   the 
Insurance   Company   that   the   accident   in   question   occurred   on 
24.01.2008   whereas   the   offending   vehicle   i.e.   Auto   rickshaw 
time on 28.01.2008, which was valid up to 28.01.2009 and as 
such   the   vehicle   in   question   was   not   insured   on   the   date   of 
accident.
bearing registration No. MH­32/TC­47 was insured for the first 
2.
The Tribunal has recorded a specific finding that the 
cover note at Exh. 68 was issued on 23.01.2008 from the book at 

Exh.   83,   which   was   issued   subsequently   on   28.03.2008   and 
hence it cannot be relied upon.   It is the finding recorded that 
the   cover  note   is  totally   manipulated  and  a  policy  at   Exh.   81 
issued on   28.01.2008  for  the  first   time  from 29.01.2008   valid 
The Tribunal, however, proceeds to reject the defence 

3.
upto 28.01.2009.  
raised by the Insurance Company solely on the ground that no 
evidence is adduced by the Insurance Company to show that the 
premium   was   in   fact   received   by   the   Insurance   Company   on 
28.01.2008   and   not   on   23.01.2008.     The   inference   is   that, 
though   the   premium   was   paid   on   23.01.2008,   the   policy   was 
issued on 28.01.2008 and hence the Insurance Company is held 
liable.
4.
The  point for determination  in the  present case  on 
the basis of the aforesaid factual position is as under :

5.
“Whether the burden of proof to establish that the  
policy was issued on 28.01.2008 in response to  
the   premium   paid   on   23.01.2008,   was   on   the  
appellant – Insurance Company or on the owner  
of the offending vehicle ?”
Sections   102   and   103   of   the   Indian   Evidence   Act, 
reproduced below:
1872,   are   attracted   in   the   present   case   and   the   same   are 
103. Burden of proof as to particular fact. ­ 
The burden of proof as to any particular fact lies  
on that person who wishes the Court to believe in  
its existence, unless it is provided by any law that  
the proof of that fact shall lie on any particular  
person.”
“102.   On   whom   burden   of   proof   lies.   –  The  
burden   of   proof   in   a   suit   or   proceeding   lies   on  
that person who would fail if no evidence at all  
were given on either side.
In terms of Section 102, the burden of proof in a suit 
or proceeding lies on that person who would fail if no evidence 

at all were given on either side.   In terms of Section 103, the 
burden of proof as to any particular fact lies on that person who 
wishes the Court to believe in its existence, unless it is provided 
by any law that the proof of that fact shall lie on any particular 
In   the   present   case,   the   Tribunal   has   recorded   a 

6.
person.
finding that Exh. 68, which is a cover note dated 23.01.2008, is a 
manipulated document and it has to be ignored.  The appellant – 
Insurance Company has produced on record the policy at Exh. 81 
issued  on  28.01.2008  valid for the  period from  29.01.2008  to 
28.01.2009   and   has   discharged   its   burden   to   prove   that   the 
offending vehicle was not insured on the date of accident i.e. on 
24.01.2008.  It is the owner of the vehicle who would fail, if no 
evidence is led by the either side to establish that the premium 
was in fact paid on 23.01.2008 in response to which the policy 
was issued on 28.01.2008 and therefore, he is not at fault.  It is 
the owner of the vehicle who wanted the Court to believe the 

existence of the such facts.  If he succeeds in proving such facts, 
then the liability of the Insurance Company would be attracted, 
in the absence of rebuttal. 
7.
In   the   present   case,   the   owner   has   neither   filed 
written   statement   nor   has   participated   in   the   proceedings   nor 
has adduced any evidence in support of a plea that the premium 
was   paid   on   23.01.2008   in   response   to   which   the   policy   was 
issued   on   28.01.2008.     The   owner   has   failed   to   discharge   his 
burden and hence the Insurance Company cannot be held jointly 
and   severally   liable   to   pay   the   compensation   along   with   the 
committed  an   error   in  holding  that   the  Insurance   Company  is 
liable for payment of compensation.   The award to that extent 
cannot, therefore, be sustained.
owner and Driver of the vehicle.   The Tribunal has, therefore, 
8.
In the result, the First Appeal is allowed.  The Award 
dated 12.07.2012 passed by the Motor Accident Claims Tribunal, 

Wardha, in M.A.C.P
. No. 48 of 2008, only to the extent it holds 
the appellant – Insurance Company liable to pay compensation is 
quashed and set aside.    The Insurance Company has deposited 
the entire decretal amount in this Court, hence, the appellant – 
Insurance   Company   is   permitted   to   withdraw   the   same   along 

with interest, if any, accrued thereon.  No order as to costs.
JUDGE


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