MILAP CHANDRA JAIN,J. - (1.) THESE appeals arise out of the same accident. The appeal No. 45 of 1989 has been filed against the order dated December 14, 1988 passed under Section 92-A, Motor Vehicles Act, 1939 (hereinafter to be called 'the Act') awarding Rs. 15,000/- as compensation. Appeal No. 145 of 1990 has been filed under Section 110-D of the Act against the judgment dated February 16, 1990 awarding Rs. 1,54,000/- as compensation. The facts of the case giving rise to this appeal may be summarised thus.
(2.) ON May 27, 1987 late Sriram, 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 Co. Ltd., Banner (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 Ltd., Banner. 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 of the tractor Kanaram 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. 15,000/- 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 and 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 claimants are entitled to get Rs. 1,50,000/- as compensation from the insurance company with interest at the rate of 12 per cent. 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. C7/2 (file of the Misc. Case No. 38 of 1988 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 Agrawal, on May 28, 1987 and requested him to issue a 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 soon as this fact was known to the insurance company all papers were collected from the agent and valid policy was not issued. Issue Nos. 3, 4 and 5 were framed on these pleas. Despite it, the insurance company neither produced the said agent Shyamlal Agrawal nor got Kanaram summoned. It simply examined its Branch Manager Arjun Kumar Sharma, NAW 1. He has deposed that the policy Exh. 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 his office and said that by mistake the cover note in respect of this policy Exh. A-1 has been issued on that day (May 28, 1987) bearing the back date of May 26, 1987 and he filed an application along with his affidavit. He admitted in his cross-examination that the policy Exh. A-1 was not got cancelled or declared invalid by any competent Court. On further cross-examination, he disclosed that the policy Exh. A-1 was issued on the basis of the said cover note with effect from May 28, 1987 instead of May 26, 1987 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 Exh. 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 26, 1987. It is not clear as to why insurance policy Exh. A-1 was issued on the basis of this cover note when it was not valid according to the insurance company. The insurance company has filed a photostat copy Exh. 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 1, 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 his cross-examination on this affidavit. It is stated in para No. 2 of the affidavit that on May 28, 1987 Kanaram approached the deponent Shyamlal Agrawal forgetting his tractor insured with effect from May 26, 1987 stating that the District Transport Officer had 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 Exh. A-3) this fact that May 26, 1987 was an auspicious day for him is not mentioned. It is not 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, 1987. 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. Sub-section (4-A) of Section 95 of the Act runs as under: 4-A. Where a cover note issued by the insurer under the provisions of this Chapter or Rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle, to which the cover note relates, has been registered or to such other authority as the State Government may prescribe. As already observed above, valid insurance policy Exh. A-1 was issued on the basis of the said cover note dated May 26, 1987. It is clear from the above quoted provisions of Sub-sections (4-A) of Section 95 of the Act that the insurance policy has to follow the cover note. As such the insurance company had no authority to change the date of commencement of the policy from May 26, 1987 to May 28, 1987. This action was clearly against the above quoted express provisions of Section 95(4-A) of the Act.
(3.) IT is clear from the policy Exh. A-1 that the United India Insurance Company Ltd. undertook the liability to the extent of Rs. 50,000/- only. As such it is not liable to pay more than Rs. 50,000/-. Reference of New India Assurance Co. Ltd. v. Ramlal 1988 ACJ 754 (SC), may be made here.;