- (1.) The present appeal is at the instance of the Insurance Company on an issue of liability. The contention in defence by the insurer was that the offending vehicle Maruti Car bearing Registration No. HR-07-1900 had not been insured with the insurer on the relevant date of the accident namely on 02.05.1992. The contention was that the so called policy said to have been issued for the said vehicle bearing cover note 370190 had not been issued for the said vehicle but for a motor cycle having registration No. DBW-4019 for the period commencing from 06.12.1991 to 05.12.1992. Since same cover note purported to cover the risk for two different vehicles, it became essential to asses which was the vehicle that had been insured for any risk. Admittedly, the name of the agent that had been mentioned in both the cover notes having the same number was one Vinod Kumar Sharma and he gave evidence as RW5. He affirmed that he had issued a cover note with the particular number only to cover the risk for Maruti Car bearing Registration No. HR-07-1900. He stated that he collected the premium of Rs. 180/- and pass it to another person by name Deep Chand Gupta who was an Inspector of the Insurance Company. Deep Chand Gupta was examined by the insurer to state that he never received any money and he never use to collect the premium amount from any of their agents.
(2.) If the cover note No. 370190 was fabrication and that the agent had fabricated such a cover note, the agent Vinod Kumar Sharma must have been confronted with the other cover note having the very same number that purported to cover the risk for the motor cycle. The insurer did not even confront the other cover note purported to cover the risk for the motor cycle and also issued by Vinod Kumar Sharma as agent. If the insurer who wanted to contend that the particular cover note issued by the agent was fabrication, it could have been best proved only by confronting the cover note with the same number that purported to cover the risk for another vehicle.
(3.) If he has not asked any question on the alleged valid cover note, then it should only be taken that the insurer had not availed to itself the best opportunity of proving what it was contending for. It has been laid down by decision in that a suggestion in the cross examination is a rule of justice prudence and to apprise an adversary of the defence and to prevent a surprise at the trial when it was its own turn to offer or evidence of it was contending viz; that the genuine cover note was only the note that covered the risk for the motor cycle. The fact that it did not confront the document to the witness who had allegedly issued such a cover note must be taken as a serious lapse to make possible an adverse inference against the Insurance Company. If there was any wrong dealing by an agent, the insurer may have his remedy against his own agent and that cannot be set up against either the insured or a third party claimant. The liability on the insurer on the basis of the cover note that covered the risk for the Maruti vehicle cannot, therefore, be faulted with. I affirm the award of the Tribunal as regards liability and dismiss the appeal.;