1 2025:CGHC:47939 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1923 of 2019 1. Bharti Axa General Insurance Company Ltd. Branch Office 8th Floor Mega Mall, Mall Road, Kanpur 208001 Uttar Pradesh. Local Office Infront Of R.K.C., Jeet Tower, 2nd Floor, Raipur Chhattisgarh. (As Per Claim Application Insurer Of Vehicle No. Cg-09-C-6612)., District : Raipur, Chhattisgarh ... Appellant versus 1. Gajendra Sahu Age 9 Months, S/o Late Ramesh Sahu, Resp. No. 1 Is Minors And Hence Representing Through Their Grand Father (Respondent No. 3), Balram Sahu, S/o Mangal Sahu, R/o Village Daihanpara Singhanpuri, Tehsil - Bodla, District Kabirdham Chhattisgarh., 2. Keja Bai W/o Balram Sahu Aged About 50 Years R/o Village Daihanpara Singhanpuri, Tehsil - Bodla, District Kabirdham Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh 3 - Balram Sahu S/o Mangal Sahu Aged About 55 Years R/o Village Daihanpara Singhanpuri, Tehsil - Bodla, District Kabirdham Chhattisgarh. 3. Soniya Bai W/o Ramesh Sahu Aged About 24 Years R/o Village Daihanpara Singhanpuri, Tehsil - Bodla, District Kabirdham Chhattisgarh. (Claimants), 4. Rajeev Pandey S/o S.K. Pandey Aged About 32 Years R/o Professor Colony Kawardha, Police Station Kawardha, Tehsil And District Kawardha Chhattisgarh. (Owner Of Vehicle No. Cg-09-C-6612). ... Respondent(s) For Appellant : Mr. Harshmander Rastogi, Advocate on behalf of Mr. N.K. Thakur, Advocate. For Respondent No.1 to 4 : Mr. Abhipreet Bajpai, Advocate on behalf of Mr. Dharmesh Shrivastava, Advocate For Respondent No.5 : Mr. Ajit Singh, Advocate SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 2 Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 19/8/2025 1. Appellant Insurance Company has filed this appeal questioning the liability fastened upon it to pay the amount of compensation awarded by learned Motor Accident Claims Tribunal, Kabirdham (for short ‘the Claims Tribunal’) in Claim Case No.34/2016. 2. Brief facts of the case are that claimants-respondent No.1 to 4 herein filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking compensation to the tune of Rs.17,46,000/- against the death of Ramesh Sahu, husband and father of claimants respectively, in a motor vehicular accident dated 29.11.2015 caused by tractor bearing registration No.CG09-C-6612 due to rash and negligent driving by its driver. 3. Non-applicant No.1, owner of offending vehicle, filed reply to claim application and denied the averments made therein. It was pleaded that accident occurred due to own negligence of deceased, who was daily paid license holder driver. At the time of accident, offending vehicle was insured with non- applicant No.2. 4. Non-applicant No.2 filed its reply to claim application pleading that offending vehicle was not insured with it on the date of accident because upon issuance of notice to the owner, he 3 admitted that he is not having insurance. In the investigation conducted by Investigator of Insurance Company, insurance policy produced by owner was found to be fake and fabricated. Hence, insurance company is not liable to pay compensation to claimants, if awarded. 5. Learned Claims Tribunal by the impugned award allowed claim application in part, awarded compensation of Rs.5,25,000/- along with interest @ 6% p.a. and held the non- applicants, jointly and severally, liable to pay amount of compensation to claimants. 6. Learned counsel for appellant insurance company would submit that learned Claims Tribunal fell into error in not considering plea raised by insurance company of fake policy in appropriate manner. He submits that even after giving notice under Section 91 CrPC by the Investigating Agency, owner of offending vehicle has not produced original insurance policy which shows that on the date of accident, owner of offending vehicle was not having in his possession original insurance policy. Insurance policy which is produced before learned Claims Tribunal does not bear clear seal of the office of insurance company and further cover note of insurance policy issued from the office in Bengalaru is suspicious in the facts of case. It is also contention of learned counsel for appellant that learned Claims Tribunal only 4 considering the fact that report lodged to Superintendent of Police has been closed recording that complaint is baseless. However, learned Claims Tribunal ought to have considered contents of insurance policy Ex.D-1 and covering letter Ex.D-2. He also contended that deceased, who died in the accident, was not authorized driver of offending truck but his status was of a borrower and therefore, his risk was not covered under policy. 7. Learned counsel for respondent No.5 would submit that learned Claims Tribunal upon appreciation of evidence and pleadings available in record concluded that plea of forged and fabricated policy raised by Insurance Company has not been proved. He next contended that learned Claims Tribunal recorded a finding that complaint made by Insurance Company to the concerned police station about forged and fabricated insurance policy produced by owner of offending vehicle, which after inquiry was found to be false and further that agents of insurance company can online obtain policy from anywhere. Policy in question was stated to be issued from the office at Kanpur and it was despatched by one Rajgopal G, Head of Operations and Claim, deputed in the office at Kanpur. Said Rajgopal is not examined as witness and further the witness examined on behalf of non-applicant No.3 namely Ramesh Sinha (NAW-2) has stated in cross- 5 examination that he is not aware whether Rajgaopal was posted in the office at Kanpur on 19.12.2015. Finding recorded by learned Claims Tribunal that appellant/Non- applicant No.3 Insurance Company failed to prove the ground that insurance policy placed on record is fabricated and fake document, which is on appreciation of evidence available in record and does not call for any interference. He also contended that non-applicant No.2 in his evidence clearly stated that though deceased was not a regular driver but he used to work as driver in his truck, and on the date of accident, he was engaged as driver. Premium to cover risk of driver was also paid, which is apparent from policy Ex.D-1. 8. Heard learned counsel for respective parties and perused record. 9. Learned counsel for appellant Insurance Company has raised two fold submissions, firstly insurance policy in question is fake and fabricated and secondly, risk of deceased was not covered under insurance policy. 10. As regards first submission raised on behalf of appellant insurance company, it is well settled principle that burden of proving a fact rests on the party who substantially asserts the issue and not upon the party denies it. When he produces evidence in support of his statement, onus would shift on the opposite party to adduce rebutting evidence to meet the case 6 made out by the first party. Hence, initial burden of proving the fact that offending vehicle was covered under insurance policy issued by Insurance Company is upon the owner because it is the owner who asserts that his/her vehicle is covered under insurance policy. Once the owner gives particular of insurance policy or places on record a copy of the same, his burden gets discharged and the burden to prove the fact that the policy of insurance has not been issued or it was fake, shifts on the insurance company. 11.Having set out the legal position on burden of proof, let us proceed to examine the facts of case to find out whether learned Claims Tribunal justified in concluding that insurance policy issued in favour of offending vehicle was genuine and it was duly insured with Insurance Company? 12. The claimants in their claim application stated that vehicle in question was insured with respondent No.1. Non-applicant No.1-owner submitted reply to claim application pleading that on the date of accident, vehicle was insured with non- applicant No.3 and insurance policy along with covering letter and policy verification letter were placed on record as Ex.D-1 and Ex.D-2 respectively. Claim application was contested by appellant insurance company by filing its reply thereto, wherein, inter-alia, it was pleaded that the offending vehicle was not insured with it at the time of the accident and that the 7 policy of insurance, reference whereof was made by the owner in reply, is fake and fabricated. 13. During proceeding before learned Claims Tribunal, non- applicant No.1 examined himself as NAW-1 to prove that the offending vehicle was insured under insurance policy, Ex.D-1, issued by non-applicant No.3-Insurance Company, whereas in rebuttal non-applicant No.3 examined its Legal Officer Ramesh Sinha as NAW3-2. 14. Owner of offending vehicle stated in his evidence that offending vehicle was insured with appellant Insurance Company, policy verification letter, Ex.D-2, was received by him through post. In cross-examination, he denied the suggestion that as he did not possess policy certificate, therefore, he had not handed over the same to police. He got issued insurance policy through an insurance agent, covering letter of policy was issued from Bengaluru, which he received through post. He also denied the suggestion that Ex.D-2 is forged and fake document. 15. Ramesh Sinha (NAW3-2), Law Officer of Insurance Company, deposed that on the date of accident, offending vehicle was not insured with his company because documents Ex.D-1 and Ex.D-2 are not issued from his company, the same are forged and fabricated, a complaint in this regard is also made to concerned police. In cross-examination, this witness admitted 8 that he was never posted in Kanpur branch office of insurance company and even in the year 2015 he was not employed with insurance company. He also denied suggestion regarding appointment of one Dinanath Soni as an agent of insurance company, who applied in Kanpur branch of insurance company for issuance of policy, Ex.D-1, and after completion of formalities, policy of Ex.D-1 was issued by Kanpur office. He has admitted that complaint made to police regarding false preparation of policy etc. by insurance company has been closed after inquiry. 16. Ex.D-1 is the covering letter dated 19.12.2015 issued by Mr. Rajagopal G., Head, Operations and Claims, Bharti AXA General Insurance Co. Ltd. which shows that a fresh policy was issued in favour of non-applicant No.1. Insurance policy is Ex.D-2 which shows that risk of offending vehicle was covered for the period from 27.11.2015 to midnight on 26.11.2016. Ex.D-3 is the policy verification letter issued by said Mr. G. Rajagopal certifying that policy in question against offending vehicle was issued by Kanpur branch of insurance company. 17. From perusal of covering letter (Ex.D-1), insurance policy (Ex.D-2) and policy verification (Ex.D-3) it is appearing that all these documents are issued under the signature of one Rajagopal G., Head, Operations and Claims, Bharati AXA 9 General Insurance Company, Bangalore. It is not the specific stand of Insurance Company that said Rajagopal G was not its officer. Even then, for the reasons best known to appellant Insurance Company, said person has not been examined to prove its contention that the policy was fake. Insurance Policy, Ex.D-2, is shown to be issued from Kanpur Branch of Insurance Company, however, no person from Kanpur Branch has been examined to prove that it was never issued from said Branch. The Law Officer examined on behalf of insurer stated that he was never posted in Kanpur office and if that be so, he was not the right person to say that policy was never issued from Kanpur Branch and it was fake. This apart, the policy was stated to be taken through one Dinanath Soni, agent of Insurance Company, but he was also not examined to prove that he has not applied for issuance of policy in question or it was a fake policy. In fact, agent Dinanath Soni, would be the best person, who could have been summoned as a witness by the insurance company and things would have been straightened by him, with regard to the transaction, having taken place between owner of offending vehicle and him, for the purchase of insurance policy or not, or about the manner, in which the said policy, even if it was fake, having been so obtained. There is nothing on record to show that any action is taken by the insurance company against said 10 agent on account of policy in question. 18. From the analysis of oral and documentary evidence on record, I am of the view that satisfactory evidence to question genuineness of policy Ex.D-2, has not been brought on record by Insurance Company. Though, NAW3-1 Ramesh Sinha had stated about an application, Ex.D-4, before the Superintendent of Police, District Kabirdham, for initiation of action regarding alleged false, fake and fabricated insurance policy but what was the outcome of that application, is not disclosed by insurance company. Hence, in the opinion of this Court, appellant-insurance company failed to discharge its onus to prove that insurance policy is a fake document and it is not liable to pay compensation to claimant as awarded by learned Claims Tribunal and being so, learned Claims Tribunal justified in arriving at conclusion that insurance policy issued in favour of offending vehicle was a genuine one and it was valid on the date of accident. Precisely, the conclusion arrived by learned Claims Tribunal is perfectly reasoned and needs no interference. 19. As regards second submission of learned counsel for appellant that risk of deceased was not covered under insurance policy, perusal of insurance policy Ex.D-2 would show that a sum of Rs.50/- was additionally charged towards legal liability to paid driver. Insurance Policy also defines 11 ‘driver’ which means any person including the insured holding an effective driving license at the time of accident. Thus, it is clear that insurance policy in question covers legal liability towards the paid driver. In case at hand, non-applicant No.1, owner of offending vehicle, in its reply has specifically pleaded that deceased was not regular driver of offending vehicle, he used to engage deceased as driver as and when he comes to him for work and he used to pay Rs.100/- per day to him. As per property seizure memo (Ex.P-12), police seized one driving license issued in the name of deceased having its validity upto 1.1.20235. Nothing is brought on record by insurance company showing that deceased was not engaged as a driver of offending vehicle or he was not possessing effective driving license to drive offending vehicle. Under these circumstances, I do not find any force in submission of learned counsel for appellant Insurance Company that risk of deceased was not covered under the police and it is hereby repelled. 20. Consequently, the appeal being sans merit and is hereby dismissed. Sd/- (Parth Prateem Sahu) Judge roshan/-