IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 962 FIRST APPEAL NO. 2129 OF 2008 WITH CIVIL APPLICATION NO. 10347 OF 2023 WITH CIVIL APPLICATION NO. 6556 OF 2008 BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD THR. ITS BRANCH MANAGER AURANGABAD VERSUS SUWARNA SANJAY KESGIRE AND ORS Mr. M. R. Deshmukh, Advocate for the Appellants Mr. R. R. Deshmukh h/f Mr. R. B. Deshmukh, Advocate for Respondent Nos.1 and 5 Mr. S. S. Manale, Advocate for Respondent No.8 Mr. V. R. Mundada, Advocate for Respondent No.9 CORAM : R. M. JOSHI, J. DATE : 8th OCTOBER, 2025 P.C. :- 1. By consent of both sides, heard finally at the stage admission. 2. This Appeal essentially revolves around only question as to whether the insurer of car has succeeded in proving before the Tribunal that the said vehicle was not validly insured during the relevant time. 3. In this regard it would be material to take note of the written statement filed by the insurer which reads thus:- “2. This respondent submits that the Indica car, alleged to be insured by this respondent is hereby specifically and strongly denied. This respondent submits that the Indica bearing No. AP-29 /C-7319, alleged to be involved in the accident was never insured by this respondent and this respondent has 962 CA 10347.2023.odt 1 of 7 2025:BHC-AUG:28417 never issued a covernote/policy insuring the alleged Indica bearing No AP-29/C-7319 3. It is specifically brought to the notice of this Hon'ble Tribunal that the xerox covernote filed on record by the applicants is a manipulated/ fabricated fake covernote, with an intention to saddle liability on this respondent 4. This respondent submits that the alleged xerox covernote filed on record is of the Indica bearing registration No.AP-29/C-7319, having the engine No 4751D102DWZP30358 and chasis No 600142DWZP33992. This repondent hereby specifically denies the allegation that the Indica bearing NoAP-29/C-7319,having the engine no 4751D102DWZP30358 and chasis No 600142DWZP33992 was ever insured by this respondent. 5. The Respondent No. 2 may kindly be directed to produce the original insurance covernote and policy which is in the custody of the respondent No 2, before the Hon'ble Tribunal, failing which, the name of the respondent may kindly be deleted from the array of respondents 6. Thus there is no liability of this respondent to indemnify the alleged insured for accident of his Indica bearing No AP-29 / C - 7319, having the engine no 4751D102DWZP30358 and chasis no 600142DWZP33992. Hence this respondent humbly submits that the name of this respondent may kindly be deleted from the petition.” 4. Admittedly, owner and driver of the said car though served with the notice of the Tribunal failed to remain present before the Tribunal and the claim petition proceeded ex-parte against them. 5. With these pleadings parties contended their respective case before the Tribunal. In the light of this fact claimant led his evidence and along with other documents a photo copy of covernote came to be executed at Exhibit 48. The insurer led evidence of its Officer Shri. 962 CA 10347.2023.odt 2 of 7 Vibhutibhushan Mahatra, who sought to claim in his evidence that the covernote relied upon by the claimant indicating that the car in question was insured with the insurer was never issued. He placed before the Tribunal covernote with all three copies maintained by the insurer in its office, to support the case of non issuance of covernote. 6. The Tribunal did not accept the said contention of the insurer and upheld the liability of the insurer to pay compensation to the claimant. 7. Learned Counsel for the insurer submits that a specific plea was raised in the written statement about the fabrication of the covernote (Exhibit 48). It is his further submission that apart from the fact that such plea was raised, insurer led evidence to substantiate the same, by examining its Officer who in candid terms has deposed on oath with regard to the non issuance of the said covernote to the insured. It is his submission that as per the rules, the covernote is maintained in three copies and all three copies are found in the record of the insurer, which according to him establishes that the covernote sought to be claimed by the claimant in respect of the insurance of the car is not genuine. Referring to the cross-examination of this witness it is contended that the witness has candidly stated about non receipt of the premium and therefore in view of the judgment of the Hon’ble Supreme Court in case of National Insurance Co. Ltd Versus Sobina 962 CA 10347.2023.odt 3 of 7 Iakai (Smt) and Others, (2007) 7 SCC 786. the policy becomes operative only on payment of the premium and thus it is his contention that in any case the car in question cannot be said to be insured with the insurer in order to fix liability of payment of compensation. Learned Counsel for the insurer submitted that the case of the insurer is in respect of the non issuance of the covernote. According to him once the covernote is not issued, unless there is contrary evidence it cannot be accepted that the vehicle is concerned was insured with the insurer. 8. Learned Counsel for the claimant supported the impugned judgment and award. 9. There cannot be any dispute with regard to the fact that when there is objection raised with regard to the insurance of a vehicle, initial burden would be open the owner/insured to substantiate the same. However, even in case that the owner fails to appear before the Tribunal, the said burden cannot shifts upon the claimant. It is not expected that the claimant would prove the contract of insurance between the insured and insurer. In such case it would be for the insurer to substantiate its case by leading cogent evidence. 10. In the light of above position, the owner has admittedly failed to appear before the Tribunal and the petition went ex-parte against him, it was the burden upon the insurer to prove its contention. 962 CA 10347.2023.odt 4 of 7 Though insurer led evidence of its officer, it is pertinent to note that in his examination-in-chief, he does not claim that no premium was received in respect of the covernote which was admittedly forming part of the record of the insurance company. He also does not explain the reason for cancellation of the covernote. No doubt the cross- examination while answering the question asked by the learned Counsel for the claimant he states that it is not true that the concerned agent issued a covernote after paying the money in respect of the premium to him. By no stretch of imagination it could be said that evidence is led to show that no amount of premium was received. Moreover this cannot be assumed so, absence of cause being shown for cancellation of covernote. Thus, even if such statement is made during cross question remains as to the explanation with regard to the cancellation of the covernote in the record of the insurance company which not at all is forthcoming. Perusal of the record and even evidence of this witness indicate that there is no reason much less any satisfactorily reason has been shown for cancellation of covernote. 11. Even if it is accepted for the sake of argument that the covernote sought to be placed on record by the claimant is not reliable, still the evidence led by the insurer itself is more than sufficient to hold that the covernote (Exhibit 53) is issued in name of the insured i.e. owner of car in question. Not only his name is appears therein but also 962 CA 10347.2023.odt 5 of 7 the exact registration number of the vehicle is seen recorded there. No question arises about the genuineness of these documents when admittedly these documents are forthcoming from the record of the insurer itself, and hence there would be no question of any other person manipulating/tampering the same. Thus, it is necessary for the insurer to explain, as to how name of insured and registration number of car in question appeared thereon. 12. In so far as submission about non issuance of covernote, cannot be accepted only on the basis of presence of three copies in record. No such presumption could be raised in this regard. More particularly, when the other material is there to indicate that the covernote was issued in the name of insured covering the very same vehicle. This Court is of considered view that it absence of any specific evidence led about the reason for cancellation of covernote so also non payment of premium, the case cannot be accepted. 13. In the peculiar set of facts, it cannot be held that the insurer has succeeded in proving that the covernote in question (Exhibits 48 and 43) did not pertain to the Indica car and Shankar Goud was not insured, to discharge its liability of payment of compensation. 14. Having regard to the above facts of the case and evidence on record, this Court finds the observation made by the learned Tribunal 962 CA 10347.2023.odt 6 of 7 with regard to fastening liability of payment of compensation upon the insurer is possible view. This Court, therefore, finds no substance in the Appeal. As a result of above discussion, Appeal stands dismissed. 15. Claimant is permitted to withdraw amount deposited in this Court. 16. Pending applications, if any, stand disposed of. (R. M. JOSHI, J.) ssp 962 CA 10347.2023.odt 7 of 7