Milap Chandra Jain, J. - (1.) These appeals arise out of the same accident. The appeal No. 45/89 has been filed against the order dated December 14, 1988 passed under section 92-A, Motor Vehicles Act, 1939 (hereinafter to be calledthe Act) awarding Rs. 15,000 as compensation. Appeal No. 145/90 has been filed under section 110-D of the Act against the judgment dated February 16, 1990 awarding Rs. 1,51,000 as compensation. The facts of the case giving rise to this appeal may be summarised thus.
(2.) On May 27, 1987, Late Shri Ram Police constable was returning on cycle to the Police Station, Kotwali. where he was posted after delivering the Dak. The tractor No. RJC 2749 came from behind with an excessive speed and dashed against him. As a result, thereof, he received several serious injuries and succumbed to them the same evening. The tractor was being driven by its owner Kanaram rashly and negligently. It was insured with the United India Insurance Company, Barmer (appellant). Late Sriram was getting Rs. 1,195 as his salary and he was 41 years and 4 months old at the time of his death. The owner and driver Kanaram admitted in his reply that the accident took place, deceased late Sriram died due to the injuries received in the accident, he was serving in the Police Department as a constable and the tractor was insured with the United India Insurance Company Limited, Barmer. Remaining allegations have been denied- It has also been averred that the accident took place due to the fault of the deceased himself and he is not liable to pay any compensation. He has also stated that if he is held responsible for the accident, the Insurance Company be also held liable to pay the compensation. In its reply, the Insurance Company has averred that after the accident the driver and owner Kanaram of the tractor approached its Agent on May 28, 1987, concealing the fact of the said accident, he got the cover note issued in respect of the said tractor bearing the back date of May 26, 1987 valid insurance policy was not issued, premium was not paid, no contract of insurance took place in between the owner of the tractor and the Insurance Company, the driver Kanaram was also not having driving licence and as such the Insurance Company is not liable to pay any amount of compensation. The Tribunal passed order under section 92-A of the Act granting Rs 1,50,000 as compensation. After framing necessary issues and recording the evidence of the parties, the Tribunal held that the accident took place due to rash and negligent driving on the part of the driver Kanaram, late Sriram received several serious injuries, he died the same evening as a result of the injuries received in the accident, the Insurance Company has failed to prove that the cover note was issued with the said back date, a completed contract took place in between the owner of the tractor Kanaram and the Insurance Company and the Insurance Company is liable to make payment of the amount of compensation. It further held that the claimants are entitled to get Rs. 1,50,000 as compensation from the Insurance Company with interest (3 12 per cent.
(3.) It has been contended by the learned Counsel for the appellant that the learned Tribunal has seriously erred to hold that the Insurance Company had failed to prove that the cover note, paper No. C/12 (file of the Misc. Case No. 38/88 of the Tribunal), was issued on May 28, 1987 with the back date of May 26, 1987, a valid contract of insurance came into existence and the Insurance Company is liable to pay the amount of compensation to the extent of Rs. 1,50,000. There is' no force in this contention. The case of the Insurance Company is that after the accident, owner and driver of the offending tractor Kanaram approached the agent of the insurance company, Shyamlal Agarwal, on May 28, 1987 and requested him to issue cover note with the back date of May 26, 1987 concealing the fact of accident in order to avoid his liability to pay compensation and thus by practising fraud upon him (agent Shyamlal) and without paying the premium obtained cover note bearing the date of issue as May 26, 1987. Its further case is that as scon as this fact was known to the insurance company all papers were collected from the Agent and valid policy was not issued. Issues No. 3, 4 and 5 were framed on these pleas. Despite it, the insurance company neither produced the said Agent Shyamlal Agarwal nor got summoned Kanaram. That simply examined its Branch Manager Arjun Kumar Sharma NAW 1. He has deposed that the policy Ex A/1 was issued for the period May 28, 1987 to May 27, 1988 from his office, on May 28, 1987 Shyamlal Agrawal came to bis office and said that by mistake the cover note in respect of this Policy Ex. A/1 has been issued that day (May 28, 1987) bearing the back date of May 26, 1987 and he filed an application alongwith bis affidavit. He admitted in his cross-examination that the policy Ex. A/1 was not got cancelled or declared invalid by any competent Court On further cross-examination, be disclosed that the policy Ex. A/1 was issued on the basis of the said cover note with effect from May 28. 1987 instead of May 26, (937 in view of the facts disclosed by the agent Shyamlal Agrawal. In the last, he stated that no enquiry was made from the insured Kanaram in this connection. It is thus clear that there is great variance in between the pleadings and proof of the insurance company. As already observed above, the insurance company has submitted in its reply that no valid insurance policy was issued and premium was not paid by the tractor owner Kanaram. Admittedly, insurance policy Ex A/1 was validly issued and it clearly shows that Rs- 36 were received as premium The policy further shows that it has been issued on the basis of the said cover note bearing the date of May . 6, 1987. It is not clear as to why insurance policy Ex. A/1 was issued on the basis of (his cover note when it was not valid according to the insurance company. The insurance company has filed photostat copy Ex. A/2 of the affidavit of the agent Shyamlal Agrawal. The learned Counsel for the claimants seriously objected when it was exhibited. It is mentioned in the statement of Arun Kumar Sharma NAW I that at that time the learned Counsel for the insurance company disclosed that the original affidavit has been lost from the office of the insurance company. This photostat copy cannot be read in evidence for two reasons. Firstly, the original has not been produced and permission was not obtained for producing secondary evidence. Secondly, Shyamlal Agrawal is alive and he was not produced for bis cross-objection on this affidavit. It is stated in para No. 2 of the affidavit that on May 28, 1987 Kanaram approached the deponent Shyamlal Agrawal for getting his tractor insured with effect from May 26, 1987 stating that the District Transport Officer bad asked him to bring insurance policy bearing the date of May 26, 1987 and that day was also an auspicious day for him. In the application moved before the Branch Manager on May 28, 1987 (whose photostat copy is Ex. A/3) this fact that May 26, 1987 was an auspicious day for him is not mentioned. It is net understandable as to why and how the District Transport Officer asked on May 28, 1987 the tractor owner Kanaram for bringing the insurance policy having force from May 26, i987. The original application dated May 26, 1987 has also not been filed by the insurance company. The learned Tribunal has rightly held that the Insurance Company has utterly failed to prove that the cover-note was in fact issued on May 28, 1987 with the back date of May 26, 1987, concealing the fact of accident.;