JAIN, J. - (1.) THIS Misc. Appeal is directed against the judgment/award dated 1. 9. 2001 passed by the Motor Accidents Claims Tribunal, Ajmer in MACT case No. 1818/99 (4/88) (75/83) whereby the claim application filed by appellant was allowed and compensation of Rs. 75,000/- along with interest at the rate of 9% per annum from the date of filing the claim petition i. e. , 25. 5. 1983 was awarded. However, the claim application was allowed only against respondent No. 3 Pehlwan Yadav, driver of the truck. The claim application against owner and insurer of the truck was dismissed. Being aggrieved with the aforesaid judgment, the claimant appellant has filed this appeal for passing award against owner and Insurance Company also.
(2.) THE brief facts of the case are that claimant appellant had filed an application for compensation on 25. 05. 1983 before the Motor Accident Claims Tribunal, Burdhwan in the State of West Bengal in respect of death of her child namely Arun Kumar Nankani aged about 18 years who died in an accident took place on 2. 12. 1982 arising out of a motor vehicle. THE deceased along with one Tarun Kumar Bhambani @ Tarun Das were going on a Scooter bearing No. WMJ-1483 towards Asansol Bazar. THE scooter was hit by a truck bearing No. WBK-4959. An FIR/gr No. 1843/82 was registered at Police Station Asansol, State of West Bengal. After investigation, a charge-sheet was filed against driver of the truck-non-applicant-respondent No. 3 Pehlwan Yadav. In the charge-sheet, the name of owner of the truck was mentioned as Smt. Lakhwanti Devi @ Laxmi Devi wife of Radheyshyam Singh. THE details of insurance cover note number and insurance policy number of the truck was also mentioned. The insurance company filed its reply wherein the contents of the application were denied. It was pleaded that the copy of cover note and insurance policy has not been placed on record, therefore, it is very difficult to search the insurance policy. The claim petition, which was pending in the Court of Addl. District Judge at Asansol was transferred for trial to the Motor Accident Claims Tribunal at Ajmer by the order of the Apex Court dated 15. 10. 1999 passed in transfer petition No. 527/1998. The tribunal framed six issues. The claimant examined herself as AW-1. No evidence was produced on behalf of any of the non-applicants. The tribunal vide its judgment dated 1. 9. 2001 allowed the application for compensation and passed an award of Rs. 75,000/- in favour of the claimant but it was passed only against driver of the truck and was dismissed against non-claimants Nos. 1, 2, 4 and 5. Learned counsel for the appellant submits that first information report/gr No. 1843/82 was registered at police station Asansol, Burdhman and during investigation, the police collected the information about registered owner of the vehicle and insurer of the vehicle. The truck was seized and seizure list was prepared by the police wherein the registration certificate in respect of truck No. WBK-4959 was seized which was in the name of Lakhwanti Devi @ Laxmi Devi-respondent No. 1. There is a reference of insurance cover note which was mentioned as b. I/c No. 34b/no663607 policy No. 43/4203737 which was valid upto 14. 6. 83. The certified copy of the charge-sheet including FIR and seizure list were placed on record and the same were available before the tribunal. The FIR was exhibited as Ex. 1. The copy of charge-sheet was also exhibited as Ex. 2. He further submits that an application under Order 13 Rule 2 of CPC was filed before MACT on 14. 8. 2001 along with copy of the notice dated 6. 8. 2001 under Order 12 Rule 8 of CPC wherein insurance cover note number and policy number of the Insurance Company, both were given. The Insurance Company gave a reply that the copy of insurance policy and cover note have not been made available, therefore it is difficult for them to make an inquiry in this regard. He submits that there is no specific denial of the insurance company that such cover note and insurance policy of such number has not been given by them. He further submits that an order was passed for interim compensation under section 140 of the Motor Vehicles Act and the said amount was paid to the claimant appellant by the Insurance Company, he, therefore, submits that learned tribunal has committed illegality in ignoring the material which was available on record and in rejecting the claim application against the owner and insurer of the truck.
(3.) LEARNED counsel for the insurance company supports the award passed by the Tribunal and submits that in absence of cover note or insurance policy, it was difficult for them to verify the veracity of the cover note number as well as policy number. He does not dispute that an order passed on an application in favour of the claimant under section 140 of the Motor Vehicles Act was complied with by Insurance Company. He has no answer about the details given in respect of cover note and insurance policy in the charge-sheet exhibited as Ex-2 It is also relevant to mention here that the claim tribunal has even rejected the claim against owner of the truck whereas respondent No. 1 was registered owner which is borne out from the charge-sheet and further that the said truck was given on Superdginama to respondent No. 1. I have considered the submissions of both the learned counsel for the parties. The finding of the learned tribunal in respect of issue No. 2 about the rejection of the claim against the owner of the truck driver is concerned, the same is absolutely erroneous and perverse. It appears that the tribunal has not cared to see even documentary evidence available on record. A copy of the charge- sheet Ex. 2 was available on record. There was no evidence in rebuttal to it. From the investigation report, it was clear that the registered owner of the truck was respondent No. 1 Smt. Lakhwanti Devi @ Laxmi Devi. The respondent No. 1 did not appear before Tribunal in spite of service of notice, therefore, it was clear that she was having knowledge of it and she did not come to contest the claim application on the ground that truck was not belonging to her. Further that truck was given on Superdginama to respondent No. 1 also proves that respondent No. 1 was owner of the truck. In these circumstances there was no reason to reject the claim against respondent No. 1 owner of the truck. So far as liability of insurance company respondent is concerned, it is clear from charge-sheet Ex.-2 that insurance cover note b. I/c No. 34b/no663607 Insurance Policy No. 43/4203737 which was valid upto 14. 6. 83, was given. The claimant appellant filed an application under Order 13 Rule 2 CPC along with copy of the reply dt. 6. 8. 2001 to a notice dt. 28. 7. 2001 given by insurance company wherein they did not deny the insurance cover note as well as policy number. But replied that in absence of copy of insurance policy and cover note it was not possible to make inquiry in the matter by them. The contention of insurance company in the present case does not appear to be good as they failed to discharge their duty to verify the cover note and Policy Number given by claimants. Such reply of insurance company is shameful. The learned tribunal in its judgment even did not refer the charge-sheet, the insurance cover note and policy number given by the investigation officer in the charge-sheet which was placed on record by the claimant. This being a claim case, the tribunal ought to have given the benefit to the claimants. The learned tribunal did not consider it. An application under section 140 of the Motor Vehicles Act was allowed and the said order was not challenged by the insurance company in the higher court, in such circumstances this court is satisfied that finding of tribunal in respect of issue No. 2 rejecting claim against the owner and insurer of the vehicle is illegal and is liable to be set aside. ;