JUDGMENT/P. Sathasivam, J.— United India Insurance Co. Ltd., Madras-2 aggrieved by the award of the Motor Accidents Claims Tribunal (VI Small Causes Court), Madras dated 23.8.1995 made in M.C.O.P No. 2428 of 1992, has preferred the above appeal.

2. In respect of injuries sustained in a motor accident on 2.8.1992, the claimant-respondent No. 1 herein made a claim for Rs. 43,000 before the Tribunal. According to the claimant, on 2.8.1992 at about 12.10 hours, when he was riding a bicycle along Selliamman Koil Street from north to south, an autorickshaw bearing registration No. TSK 2563 coming from behind in the same direction, driven in a rash and negligent manner, hit against his bicycle, causing grievous injuries to him and damaging his bicycle. It is further stated that the respondent No. 1 therein, as owner of the autorickshaw and the respondent No. 1 therein, as insurer of the same are liable to pay compensation. Before the Tribunal, the owner of the autorickshaw, respondent No. 1 therein did not contest the claim and he was set ex parte. The respondent No. 2 Insurance Company alone filed a counter-affidavit wherein it is stated that in the absence of insurance details, the vehicle in question had no valid insurance in the name of the owner at the time of the accident and hence the Insurance Company is in no way liable for the compensation. Before the Tribunal, 4 witnesses were examined as PWs 1 to 4 and documents, Exhs. P-1 to P-10 marked on the side of the claimant, whereas the Insurance Company has examined one Jayakumar as RW 1 and marked 2 documents as Exhs. R-1 and R-2. On appreciation of evidence, both oral and documentary, the Tribunal after holding that the accident was caused due to negligence of the driver of the autorickshaw TSK 2563 and the respondent No. 2 Insurance Company is liable to pay compensation, passed an award for Rs. 20,000 with interest at 12 per cent per annum from the date of petition till date of deposit in favour of the claimant. Questioning the award on the ground of its liability, the insurance company alone has preferred the present appeal.

3. Though both the respondents were duly served notice from this Court, they have not chosen to contest the appeal by engaging a counsel.

4. We heard Mr. M.S Krishnan, the learned counsel for the appellant insurance company.

5. Mr. M.S Krishnan, learned counsel for the appellant, after taking us through the details in the claim petition, particularly in column 16, would contend that in the absence of details of policy such as branch code and other particulars and in view of the attitude of the owner of the vehicle in not responding to their direction for production of policy, the award of the Tribunal fastening liability to pay the amount cannot be sustained. The appellant has no grievance regarding the finding relating to negligence and quantum arrived by the Tribunal.

6. In the light of the said contention, the only point for consideration in this appeal is whether the Tribunal is justified in fastening the liability on the Insurance Company ? and whether the claimant has furnished the required details in the claim petition?

7. In order to find out the answers for the questions raised, we have to refer to the relevant provisions from the Motor Vehicles Act, 1988 and the Tamil Nadu Motor Vehicles Accidents Claims Tribunal Rules, 1989:

“146. Necessity for insurance against third party risk.—(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter.

158. Production of certain certificates, licence and permit in certain cases.— (1) Any person driving a motor vehicle in any public place shall, on being so required by a police officer in uniform authorised in this behalf by the State Government, produce—

(a) the certificate of insurance;

(b) the certificate of registration;

(c) the driving licence; and

(d) in the case of a transport vehicle, also the certificate of fitness referred to in Section 56 and the permit, relating to the use of the vehicle.

(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this Section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer.

159. Production of certificate of insurance on application for authority to use vehicle.—A State Government may make rules requiring the owner of any motor vehicle when applying whether by payment of a tax or otherwise for authority to use the vehicle in a public place to produce such evidence as may be prescribed by those rules to the effect that either—

(a) on the date when the authority to use the vehicle comes into operation there will be in force the necessary policy of insurance in relation to the use of the vehicle by the applicant or by other persons on his order or with his permission, or

(b) the vehicle is a vehicle to which Section 146 does not apply.

160. Duty to furnish particulars of vehicle involved in accident.—A registering authority or the officer-incharge of a police station shall, if so required by a person who alleges that he is entitled to claim compensation in respect of an accident arising out of the use of a motor vehicle, or if so required by an insurer against whom a claim has been made in respect of any motor vehicle, furnish to that person or to that insurer, as the case may be, on payment of the prescribed fee any information at the disposal of the said authority or the said police officer relating to the identification marks and other particulars of the vehicle and the name and address of the person who was using the vehicle at the time of the accident or was injured by it and the property, if any, damaged in such form and within such time as the Central Government may prescribe.

169. Procedure and powers of Claims Tribunals.— (1) In holding any inquiry under Section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.

(2) The Claims Tribunal shall have all the powers of a civil Court for the purpose, of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

Rule 4-A of the Tamil Nadu Motor Vehicles Accidents Claims Tribunal Rules, 1989.— (1) Notwithstanding anything contained in Rules 3 and 24, any police officer not below the rank of a Sub-Inspector of Police, who is entrusted with the investigation of the motor vehicles accident, shall without waiting for the result of the investigation or prosecution and as expeditiously as possible get an application in Forms I and II appended to these rules from the party injured in the accident or all or any of the legal representatives of the deceased, as the case may be, and forward the same to the Claims Tribunal, who shall treat it as an application for the purpose Sections 140 and 166 of the Act. The said police officer shall also gather full particulars of the insurance certificate in respect of the motor vehicle involved in the accident and furnish them to the injured party or to the legal representatives of the deceased. The party concerned shall, before the Tribunal passes the award, pay the fee prescribed in Rule 24.

(2) An officer investigating into an accident shall, after a case is registered forward copies of the first information report relating to the accident to (i) the Claims Tribunal having jurisdiction; and (ii) the President of the District Committee for Legal Aid and Advice concerned constituted by the Tamil Nadu State Legal Aid and Advice Board;

(3) An officer investigating into an accident shall, immediately after an accident is registered, also furnish the particulars to the nearest Legal Aid Committee or Centre constituted by the Tamil Nadu State Legal Aid and Advice Board in Form III, Appendix III to these Rules.

(4) Notwithstanding anything contained in sub-rule (3), the officer of the Transport Department inspecting the vehicle involved in an accident shall furnish immediately the following information to the insurance company with which the vehicle is insured:

(1) Name and address of the owner of the vehicle;

(2) Name of the driver and/or conductor;

(3) Registration number of the vehicle;

(4) Particulars of permits, if any, in respect of the vehicle, with validity;

(5) Date of expiry of fitness certificate; and

(6) Date of expiry of the insurance.

Rule 21.— The following provisions of the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908) shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Orders V, IX, Order XIII, Rules 3 to 10; Order XVI, Rules 2, 21; Order XVII and Order XXIII, Rules 1 to 3.

Rule 22.— Without prejudice to the provisions contained in Section 174, the Claims Tribunal shall for the purpose of enforcement of its award, have all the powers of a Civil Court in the execution of a decree under the Code of Civil Procedure, 1908 (Central Act V of 1908) as if the award were a decree for the payment of money passed by such Court in civil suit.

Rule 25.— (1) The Claims Tribunal shall follow the procedures of summary trial as contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) for the purpose of adjudicating and awarding a claim under Chapter X of the Act.”

8. Before going into the aspect whether all the conditions/procedures referred to above are complied with by the claimant and the officer concerned, we shall refer the decisions cited by learned counsel for appellant. In Lakshmanna v. Venkateshwarlu, AIR 1949 PC 278, it is stated that what is called the burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as ‘shifting’. The burden of proof on the pleadings never shifts, it always remains constant. After referring to Sections 101 and 102 of the Indian Evidence Act, it was held that the initial burden of proving a prima facie case, in his favour is cast on the plaintiff; when he gives such evidence as will support & prima facie case, onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When after the entire evidence is adduced, the Tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background.

9. In Kundan Lal v. Custodian, Evacuee Property, (1963) 1 MLJ 85 (SC) and in Nanji and Company v. Jatashankar Dossa, AIR 1961 SC 1474, it was held that the burden of proof is on a plaintiff. It was further held that it is the duty of a plaintiff to establish at any rate, prima facie, that the suit is within time and is not barred by lapse of time.

10. In Devadattam v. Union of India, AIR 1964 SC 880, the Supreme Court has held that the question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where, however, evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties.

11. In New India Assurance Co. Ltd. v. Anga Chinni Babu, 1992 ACJ 281 (AP), with regard to motor insurance policy and burden of proof as well as adverse inference, a learned single Judge of the Andhra Pradesh High Court has held that (para 4):

“If the claimants have not produced any material to show that there is policy at that point of time the burden can never shift. Their duty is only to show that a particular vehicle involved in the accident was insured with a particular company with a particular policy number. If that material has been supplied by the claimants, it is the duty of the insurance company to produce the evidence to the effect whether that policy was there on them or whether a wrong policy has been given or whether the policy mentioned in the O.P belongs to some other vehicle. Non-production of the evidence to that effect and merely filing an appeal by the Insurance Company without any proof by taking advantage of the plea that has been taken by them cannot be entertained?”

12. In New India Assurance Co. Ltd. v. Shaik Ashabi, 1992 ACJ 811 (AP), the Andhra Pradesh High Court has held thus (para 4):

“It is true that the claimants have to establish by adducing evidence that there is a valid policy on that day. If they are able to adduce evidence, the burden shifts on the insurance company. The Insurance Company is at liberty to prove that the policy is not in force or the policy might have been expired. In this case, the vehicle has been inspected and the Motor Vehicles Inspector mentions a particular number, the date of commencement of the policy and the date of expiry of that policy. So we cannot expect the claimants to direct the owner to produce the policy particulars when the owner has turned hostile. When two dates have been given, that is the commencement date and the expiry date, and the number of the policy, it is the duty of the Insurance Company to prove that on such commencement or expiry dates the policy was not given by that branch. But in this case, they produced one sample policy stating that the digit numbers that are given to the Vijayawada Branch are different from the digit numbers that have been mentioned in the Motor Vehicles Inspector's report. By mere producing a sample policy, it cannot be said that the Insurance Company can get away saying that there is no policy at all. When the number of the policy, the commencement date and the expiry date and the Branch number have been given, it is not difficult for the insurance company to make a search for those dates and produce evidence to the effect that on that particular day, no policy was given to the vehicle in question. By producing a sample document, it cannot be said that it has rebutted the evidence that has been let in. So long as the entry that has been there in the Motor Vehicles Inspector's report with the expiry and commencement dates and number, it cannot be said that they have failed to prove that there is no valid cover.”

13. In Divisional Manager, National Insurance Co. Ltd. v. Ramakrishna Das, 1993 ACJ 668 (Orissa), the Orissa High Court has held that since the claimant has failed to mention policy particulars in absence thereof the Insurance Company could neither deny nor confirm having insured the vehicle. Because of want of particulars and in order to give one more opportunity, Orissa High Court remanded the case to the Tribunal to furnish particulars of insurance.

14. By pointing out another judgment of the Orissa High Court in the case of National Insurance Co. Ltd. v. Anand & Ananda Charan Reddy, 1997 ACJ 196 (Orissa), the learned counsel appearing for the Insurance Company contended that the insurance company insures hundreds and thousands of vehicles and is not expected to go through hundreds and thousands of policies to ascertain whether or not a particular vehicle is insured with it. According to him, it is only when the name of the Insurance Company and the particulars of the policy or at least the policy number is furnished, can the Insurance Company be expected to produce the same.

15. The statutory provisions make it clear that no one is permitted to use a motor vehicle in a public place without taking a policy of insurance complying with the requirements provided under Chapter XI of the Motor Vehicles Act, 1988. A police officer in uniform authorised by the State Government is entitled to verify the certificate of insurance, registration, the driving licence and in the case of transport vehicle, the certificate of fitness and the permit relating to use of vehicle from any person driving a motor vehicle in a public place. If any information regarding accident involving the death or injury to any person is recorded by the police officer, it is incumbent on the officer-incharge of the police station to forward a copy of the same within 30 days to the Claims Tribunal having jurisdiction with a copy to the concerned insurer. When vehicle comes into operation, it is incumbent on the part of the owner to take necessary policy of insurance in relation to the use of the vehicle as provided by the Government. The registering authority is duty-bound to furnish the details of the vehicle involved in the accident, if it is required by a person who is entitled to claim compensation in respect of an accident arising out of use of the motor vehicle. The procedure contemplated for disposal of the claim petitions is summary in nature and the Claims Tribunal shall have the powers of a Civil Court for the purpose of taking evidence on oath, enforcing the attendance of witnesses and compelling the discovery and production of documents, material objects. It is clear that the Tribunals have certain powers of the Civil Court for the purpose of taking evidence on oath, etc., but that itself would not constitute it to be a Civil Court. Only certain provisions of the Code have been made applicable which are specifically provided under the different provisions of the Act and the Rules.

16. As per the Rules, it is incumbent on the police officer who investigates the accident to get application in Forms I and II appended to the Rules from the party injured in the accident or all or any of the legal representatives of the deceased and forward the same to the Claims Tribunal who shall treat it as an application for the purpose of Sections 140 and 166 of the Act. It is also the duty of the investigating officer after registration of the case to forward copies of the first information report relating to the accident to the Claims Tribunal having jurisdiction and the President of the District Committee for Legal Aid and Advice concerned constituted by the Tamil Nadu State Legal Aid and Advice Board. The officer is also expected to furnish the particulars to the nearest Legal Aid Committee or Centre constituted by the Tamil Nadu State Legal Aid and Advice Board in Form III, Appendix III to the Rules. Further, it is also the duty of the officer of Transport Department inspecting the vehicle involved in an accident to furnish immediately the name and address of the owner of the vehicle, name of the driver and conductor, registration number of the vehicle, particulars of permits if any in respect of the vehicle, with validity, date of expiry of fitness certificate and date of expiry of the insurance to the insurance company with which the vehicle is insured.

17. Most of the decisions relied on by the learned counsel for the appellant relate to burden of proof, onus and shifting of onus, etc. There is no dispute regarding the proposition laid in those cases. We have already referred to the fact that the Tribunal is not a Civil Court for all purposes and not all the procedures provided under the Code of Civil Procedure are applicable. As stated earlier, only in respect of attendance or production of witnesses, summoning of documents, commissions, etc., the provisions of Code of Civil Procedure are applicable to the Tribunal. As stated earlier, Rule 21 specifically states that the following provisions of First Schedule to the Code of Civil Procedure, 1908 apply to proceedings before the Claims Tribunal, namely, Orders V, IX, Order XIII, Rules 3 to 10, Order XVI, Rules 2, 21, Order XVII and Order XXIII, Rules 1 to 3. No doubt, for the purpose of enforcement of its award, the Claims Tribunal shall have all the powers of a Civil Court in the execution of a decree as if the award were a decree for the payment of money passed by such Court in civil suit.

18. In the case before us, respondent-claimant in clauses 9 and 16, has furnished the following particulars:

“(9) Name and address of the Police Station in whose jurisdiction the accident took place or was registered.

Traffic Investigation, North Range, Vepery, Madras-7.

(VAR No. 3210.N3/92) (Cr. No. 3211/92)

(16) Name and address of the insurer (policy No. 31/1/12267/92). Validity 20.2.1992 to 19.2.1993

United India Insurance Co. Ltd., Motor Third Claims Office, 38, Anna Salai Madras-2.”

It is useful to refer to the stand taken by the respondent No. 2, namely, Insurance Company before the Tribunal. Except merely denying that the vehicle had valid insurance in the name of the respondent No. 1 at the time of the alleged accident, the Insurance Company has not furnished any other information. Before the Tribunal with reference to the stand taken by the Insurance Company, one Jaya-kumar, Assistant, United India Insurance Co. Ltd. was examined as RW 1.

..........

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As rightly observed by the Tribunal, first of all RW 1 was not in the ‘policy issue Section’ at the relevant time. Further, he fairly admitted that they did not search and verify their records to the effect whether the policy mentioned in the claim petition was issued by them. If really RW 1 made a thorough search, he could have specifically stated that the policy referred to in the claim petition was not taken in their office. It is true that the claimant has not referred to the branch code. However, in the cross-examination, RW 1 has admitted that 31 refers to vehicle code number; 12267 refers to policy number; 92 refers to the year in which the policy was taken. He also admitted that with reference to these figures, he has not made any attempt to verify as to whether any such policy was available in their branch. It is also admitted that their office is functioning at No. 38, Anna Salai, Madras-2 as mentioned in column 16 of the claim petition. There is no explanation for non-examination of persons working in the office where policy is issued. As rightly observed by the Tribunal, merely because the claimant has not furnished the branch code, the Insurance Company cannot be permitted to wriggle out of its liability. It is true that it is the claimants who have to establish by adducing evidence that there is a valid policy on the date of accident. If they are able to adduce evidence, the burden shifts on the Insurance Company. The Insurance Company is at liberty to prove that the policy is in force or expired. In our case, the claimant has furnished the name and address of the police station in whose jurisdiction the accident took place, vehicle accident register (VAR), crime number, etc., as well as policy particulars/details and the address of the insurance company. We have already referred to the fact that the owner of the autorickshaw has conveniently absented and did not furnish any particulars either to the insurance company or to the Tribunal as well as to this Court. With the particulars furnished, it cannot be construed that the claimant has not furnished any information at all. During the course of argument, learned counsel for the appellant has produced a sample policy and contended that in the absence of the details furnished therein, it could not be possible for them either to assist the Court or contest the case or accept the liability. We are unable to accept the said contention. We have already referred to the information furnished by the claimant in the claim petition and the evidence of RW 1. We are satisfied that though the claimant has not furnished the full details, we are of the view that with the available details had the Insurance Company taken some more efforts or interest, they could have ascertained the correct information whether the policy referred to in the claim petition was taken by the owner of the vehicle that too in their office. When the details of policy, the commencement and the expiry date, address of insurance company have been given, we are of the view that it would not be difficult for the insurance company to make a search in their office and produce necessary evidence to the effect that on that particular date, no policy was issued to the vehicle in question. By producing a sample document, it cannot be said that it rebutted the evidence that has been let in. We have already referred to the statutory provisions both in the Act and in the Rules which enable the police officer/investigating officer to furnish particulars as to insurance and ownership of the vehicle to the Tribunal having jurisdiction as well as to the victims. In this case it is not clear whether the investigating officer has furnished all the details as required under law to the claimant. However, as observed earlier, with the particulars furnished in columns 9 and 16, it cannot be said that the claimant has failed to furnish the required details. In case those particulars were not sufficient, the insurance company could have ascertained further particulars from the investigating officer. On the other hand, after going through the stand taken in the counter-affidavit and the evidence of RW 1, we are of the view that the Insurance Company has failed to discharge its burden. Therefore we are in agreement with the conclusion arrived at by the Tribunal holding that the appellant Insurance Company is liable to pay the award amount.

19. The points that emerge from the above discussion as well as the mandatory provisions stipulated in the Motor Vehicles Act, 1988 and Tamil Nadu Motor Vehicles Accidents Claims Tribunal Rules, 1989 are enumerated hereunder for strict compliance by all the parties concerned:

(i) The officer-incharge of the police station/investigating officer as soon as any information regarding any accident involving death or bodily injury to any person is recorded, shall forward a copy of the report/complaint within 30 days from the date of recording of the information to the Claims Tribunal having jurisdiction, and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within 30 days of receipt of such report, forward the same to such Claims Tribunal having jurisdiction and insurer.

(ii) It is the duty of the registering authority or the officer-incharge of a police station, on request by a person who is entitled to claim compensation in respect of an accident arising out of the use of a motor vehicle, or if so required by an insurer against whom a claim has been made in respect of any motor vehicle, to furnish all the particulars of the vehicle, name and address of the persons who were using the vehicle at the time of the accident, details of the property damaged.

(iii) It is the duty of the police officer-incharge of investigation to gather full particulars of the insurance certificate in respect of the motor vehicle involved in the accident and furnish them to the injured or to the legal representatives of the deceased. If any fee has been prescribed, the same has to be paid by the party concerned.

(iv) The officer investigating the accident after a case is registered, shall forward copies of first information report relating to the accident to the Claims Tribunal having jurisdiction, President of the District Committee for Legal Aid and Advice. The officer of the Transport Department inspecting the vehicle (MVI) involved in an accident shall also furnish immediately the information, i.e, the name and address of the owner of the vehicle, name of the driver and/or conductor, registration number of the vehicle, particulars of permits, if any, in respect of the vehicle, with validity, date of expiry of fitness certificate, and date of expiry of the insurance to the insurance company with which the vehicle is insured. .

(v) The claimants are duty-bound to furnish correct registration number of the vehicle, full insurance particulars as furnished by the police officer/investigation officer. If details are wanting at the time of filing of the claim petition, it is the duty of the claimants to ascertain all those particulars either from the police officer/investigation officer or from the Motor Vehicle Inspector of the Transport Department or from the Tribunal having jurisdiction and mention those particulars in the claim petition.

(vi) If the insurance company feels that the particulars furnished in the claim petition are not correct or not sufficient, it shall ascertain the necessary details from the police officer/investigation officer concerned or from the office of the Motor Vehicle Inspector, and prove its case by positive evidence.

This Court trusts and hopes that if all the above mandatory provisions are fully complied with, there will not be any difficulty for the claimants as well as the Insurance Companies to put forth their respective case effectively. We culled out the above details only from the provisions of the Motor Vehicles Act, 1988 and the Tamil Nadu Motor Vehicles Accidents Claims Tribunal Rules, 1989. It is mandatory for all the parties/officers, namely, police officers/investigation officers/Motor Vehicle Inspectors and claimants as well as the Insurance Companies to adhere to these provisions strictly.

20. In the light of our earlier conclusion, we do not find any merit in the appeal; consequently the same is dismissed. No costs.

21. In view of the foregoing, we direct the Secretary to Government, Home Department, Government of Tamil Nadu, Fort St. George, Chennai-9 to communicate the relevant observation detailed in para 19 of the judgment to all officers/departments concerned as well as to all Insurance Companies dealing with motor vehicle insurance to enable them to adhere to the instructions stated above.