S.A. Shah, J.
1. This appeal is filed by the appellant, the General Insurance Society Ltd, Bombay insurer of fiat car No.GJZ 540/B, involved in the accident challenging the judgment and order dated September 5, 1977, passed by the Motor Accidents Claims Tribunal, Valsad at Navsari, in Motor Vehicles Claims Petition No.21 of 197.
2.The facts leading to this appeal briefly stated are that a fatal accident took place on November 21, 1973, on National Highway No.8 within the local limits of village Khadki in Valsad District, between the aforesaid fiat car No. GJZ 540/B coming from Bombay and going to Rajkot and Motor Cycle No.GJL 7463, coming from Pardi and going to Veep. In the said accident, one Sharadchandra Dahyabhai Patel, who was driving the motor cycle died on the spot. Widow and son (respondents Nos. 1 and 2) of the said deceased, Sharchandra, thereupon filed the aforesaid petition before the Tribunal claiming an amount of Rs.1 lakh by way of compensation against driver, Shabir Ahmedkhan Mohmedkhan pythin (respondent No.3) M/s. P.H.Wadia and Sons (respondent No.4) owner of the said fiat car, and the General Insurance Society Ltd. (appellant) insurer of the said fiat car. The Tribunal raised the necessary issues at exhibit 2, and after recording the evidence and hearing the parties came to the conclusion that Shabir Ahmedkhan driver of the said fiat car was negligent but at the same time the deceased, Sharchandra was also found negligent to the extent of 30 percent and in that view of the matter, the Tribunal awarded to the claimants an amount of Rs.70,000 by way of compensation with proportionate costs with interest at the rate of 6 percent. per annum from the date of application till realization. The appellant insurance company, being aggrieved by the said judgment and order of the Tribunal, has filed this appeal.
3. Mr. B.R.Shah, learned advocate for the appellant insurance company, has raised the contention that the cover note, exhibit 32 was antedated. In other words, he has submitted that the said cover note, alleged to be covering the risk of the said fiat car was not in existence on November 21, 1973 when the accident in question took place. In support of his contention he has drawn out attention to the admitted fact that the insurance company had substantial business with M/s. P.H.Wadia and Sons (hereinafter referred to as the dealers) since long and therefore the insurance company had handed over two books containing blank cover notes duly signed by the authorized officer of the insurance company in good faith by way of facility so that at any time, the dealers can utilize such blank cover notes by filing in necessary particulars before the vehicles are taken from the depot of the manufacturers i.e. M/s.Premier Automobiles Ltd. According to Mr.Shah after the receipt of the information that the said fiat car had met with an accident Jorsinha Bhanji Solanki, manager of the dealers at Rajkot had rushed to the spot. However neither the said Shri Solanki nor the driver of the said fiat car had produced the cover note before the police because there was none, and after coming over to Rajkot and after getting the engine number and the chasis number from the documents that were lying in the car, they utilized the blank cover note by ante dating the same so as to cover the risk of the said fiat car which was involved in the accident.
4. Mr.B.J.Shethna, learned advocate for respondents Nos. 1 and 2 has raised a preliminary objection that the insurance company is permitted only to raise the defence which are enumerated in sub section (2) of section 96 of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) and the defence that the cover not was ante dated is not one of the defence enumerated in the said sub section (2) of section 96 of the Act and, therefore, this court should reject the said contention of the appellant.
5. In support of his contention, Mr.Shethna has relied upon the decision of the Supreme Court in British India General Insurance Co.Ltd, V. Captain Itbar Singh, (1959) 29 Comp Cas (Ins)603, AIR 1959 SC 1331. Therein, it has been observed that apart from the statute an insurer has no right to be made a party to the action by the injured person against the insured causing the injury. Sub section (2) of section 96 of the Act, however gives him the right to be made a party to the suit and to defend it. The right therefore is created by statute and its content necessarily depends on the provisions of the statute. Sub- section (2) clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it. When the grounds of defence has been specified they cannot be added to. The only manner of avoiding liability provided for in sub- section (2) is through the defence therein mentioned. It is no doubt true that once it is established that there is a valid policy of insurance insuring a person or class of persons specified therein the insurance company cannot be permitted to raise any defence except the defences specified in sub section (2) of section 96 of the Act. However under the insurance policy, the insurance company takes the liability to indemnify the original owner of the vehicle. Therefore the liability of the insurance company is based upon or dependent upon the contract of insurance between the insurance company and the owner of the motor vehicle. Otherwise, the beneficial provisions of the Act would not be attracted.
6. Mr. Shah's arguments, therefore, that a valid and binding contract of insurance is a condition precedent before the liability can arise, has some force and for that he has relied upon a decision of the full Bench of this court in Shantilal Mohanlal v. Aher Bawanji Maldev, 58 Comp Cas 717. In the said decision the Full Bench has considered several decisions of the Supreme Court and of other High Courts and after quoting the observations of the Supreme Court in the case of British India General Insurance Co.Ltd,  29 Comp Cas (Ins)60; AIR 1959 SC 1331, it has been observed as under (p.728 of 558 Comp Cas):
'The above observations were made by the Supreme Court in the context of a subsisting policy between the insurer and the insured. Obviously so long as the policy subsists, it cannot be permitted to raise defences other than those which are specified in sub-section (2) of section 96 of the Act. We do not think that the Supreme Court intended to lay down such a wide proposition as canvassed by the appellants. We fail to appreciate why the insurer cannot take up a defence that it had not all entered into any contract of insurance with the person who is said to have been insured and that the policy of insurance is not a genuine one. There can be other defences'.
7. In our opinion, the aforesaid observations of the Full Bench of this court no doubt, help Mr. Shah that an insurer can take the defence in respect of genaies of the insurance policy. However this question would only arise if we come to the conclusion that the cover note, exhibit 32, produced in the case is proved to be not genuine.
8. In order to show that the cover not, exhibit 32, is not genuine Mr.Shah has drawn our attention to the following circumstances which according to him would go to show that the over note was not in existence on the date when the accident occurred ie. on November 21, 1973:
(1) When the police had taken the custody of the car all the relevant documents in respect of the said car were found from the said car itself by the police except the cover note, exhibit 32.
(2) When driver, Shabir, gave his explanation at a later stage, he stated that the cover note, exhibit 32, was handed over to the manager Solanki, on November 21, 1973, when he reported about the accident at Ahmedabad. This is not borne out by the evidence of manager, Shri Solanki. Shri Solanki has stated that the cover note exhibit 32 was not handed over to him on November 21, 1973, at Ahmedabad by driver Shabir.
(3) According to the manager Shri Solanki the driver Shabir had not handed over to him the cover note, exhibit 32 till the investigation was completed by the police on November 22, 1973.
(4) The Panchnama shows that some other cover note was found in the car bearing No.GJZ 540/B, which should not had been there unless with a view to dodge the police.
(5) Neither the cover note nor a copy thereof was sent to the insurance company on November 21,22,1973, or up to November 25/26, 1973, as admitted by the manager, Shri Solanki, though the same was alleged to have been issued on November 18, 1973.
(6) Assuming that the cover note, exhibit 32, was given to the branch manager on November 2/26 1973, no information of accident was given by Shri Solanki.
(7) It is proved that cover notes from the book which contained the cover note, exhibit 32 have not been issued after March, 1973, and the cover notes from the other book were issued during March to November, 1973, which would clearly go to show that the cover note, exhibit 32, was subsequently issued.
9. In order to appreciate the aforesaid circumstances and the contentions of Mr.Shah, it will be necessary to refer to the evidence. According to the driver, Shabir Pathan., he was given the cover note, exhibit 32 by the manager, Shri.Solanki, on November 18, 1973. He reached Bombay and took delivery of the car on November 20, 1973. Engine number and chassis number were entered in the said cover note by an employee of the Premier Automobiles Ltd. He started with the car. The car met with an accident at about 9 a.m. on November 21, 1973 near village Khadmi. On account of fear, instead of reporting the matter to the police he went to Ahmedabad as the son of the dealer was staying in Ahmedabad. The said son of the dealer made a phone call to Rajkot, and the manager Shri Solanki, cam to Ahmedabad at nigh. Thereafter, both the driver, Shabir and Shri Solanki went to Padre police station for giving information to the police. The driver, Shabir has stated that the cover note exhibit 32, was not in the car with other documents but was in his pocket, and he handed over the said cover note to Shri Solanki at Ahmedabad. Though the driver Shabir and the manager Shri Solanki had gone to the police station in the morning of November 22, 1973, the cover note, exhibit 32 had not been shown or given to the police. The reason given by Shri Solanki was that the cover note, exhibit 32, was given to them by the driver Shabir after they had left the police station and not before that. So there is no doubt some contradiction in respect of the possession of the said cover note.
10. It also appears from the evidence and the correspondence produced in this case that the insurance company was not informed about the accident by sending a communication to that effect. According to the manager Shri Solanki, he had made a telephone call from Rajkot on his return on November 22, 1973, to the insurance company and that is why no written communication was sent.
11. So far as the cover note, exhibit 32, is concerned the case of the dealer is that on November 2/26, 1973, Mr.Shah from the insurance company had come to the office of Shri Solanki and Shri Solanki had handed over the cover note to him on that day and thereafter they both went to meet the dealer. Therefore according to the dealer the insurance company was given full information on November 2/26, 1973. Whereas, the contention of the insurance company, as also disclosed from the correspondence was that the said cover note was delivered to the insurance company on December 3, 1973, and the insurance company came to know about the incident only on or about December 14, 1973. The material question, therefore, that arises for our consideration is whether the cover note exhibit 32, which bears the date of issuance as November 18, 1973, and the engine number, chasis number and place number, alleged to have been entered into on November 20, 1973, by an employee of M/s.Premier Automobiles Ltd. was in existence when the accident took place.
12. So far as the signature on the cover note and the genuineness of the cover note are concerned the same are not disputed. The only dispute is regarding the date engine number and chasis number appearing in the cover note. Once we come to the conclusion that the cover note, exhibit 32, bears the signature of the authorized officer of the insurance company and the same was given to the dealer for utilizing the same so as to cover the insurance risk of the vehicle purchased by the dealer, prima facie the court shall have to come to the conclusion that, unless otherwise proved the cover note, exhibit 32 duly signed by the authorized officer of the insurance company is the genuine cover note issued on the date shown therein and all the columns are filled in on the respective dates, and the burden is on the insurance company to prove that though the said cover note purports to have been issued on November 18, 1973, in fact and in reality it was not issued on the said date and was not in existence on November21, 1973, when the accident took place. If the insurance company discharges that burden, then it can be said that the said cover note was not in existence on the date of the accident and hence there was no contract between the parties and the insurance company was not under any obligation to indemnify the dealer.
13. In order to prove that the impugned cover note, exhibit 32, was not in existence on the date of the accident Mr.Shah has relied upon the aforesaid circumstances. In our opinion though the said circumstances raise some suspicion, they are not sufficient to come to the conclusion that the cover note exhibit 32, was not in existence on the date of the accident. The reason given by Mr.Shah regarding not disclosing the cover note before the police at least on November 22, 1973, may at the most, raise some suspicion. But assuming for the sake of argument that the cover note was not in existence on November 21, 1973, if the dealer wanted to create a cover note with back date, he could have done it at least on November 21/22, 1973. Mr.Shah submits that the dealer had no engine number or chasis number of the vehicle in question with him. This fact is not borne out from the evidence, because no such question has been asked either to the driver, Shabir or to the manager, Shri Solanki. Even assuming that there is some substance in the argument of Mr.Shah the chasis number and engine number could have been easily procured by the dealer directly on phone from the manufacturer on November 21, 1973. Unless such questions are put directly to the driver Shabir, or to the manager, Solanki, as to why they had not disclosed the fact of cover note to the police one may not be able to know the real reasons. It might be due to oversight or both of them might have been under some tension on account of the accident. The contention of Mr.Shah that the cover note was not at all issued up to November 2/26, 1973, can only raise a suspicion and nothing more. This is more so because if they wanted to ante-date the cover note, they could have done it on November 21, 1973, and might not have even waited for a day for delivering the same and giving intimation of the accident also immediately. The delay in giving information regarding the cover note as well as the accident might be real, because, generally according to practice they were sending the cover note only after the arrival of the vehicle. The dealer might not have any doubt that the insurance company would doubt their bona fides and therefore, they might not be in a hurry on account of their mutual trust and relations. This is also a possible circumstance.
14. The third main plank of Mr.Shah's contention is that the cover note exhibit 32, is taken from a book which was not used after March, 1973. In this respect also, no proper question has been put to nor has any explanation been sought from Shri Solanki. This might be a mere coincidence or the other book might have been completed. We do not know. Unless specific questions are asked and explanation is sought for in this respect we cannot come to the conclusion that use of this cover note from the other book can lead to an inference that the same is not genuine.
15. The driver Shabir, has stated that the engine number and chasis number were entered in the cover note, exhibit, 32, by the employee of Premier Automobiles Ltd. on November20, 1973. However no question has been put to him as to who was that person who made the said entries. That was the only person who could have thrown light on the question regarding the genuineness of the cover note. Unfortunately the said person was not examined by any of the parties. Since the burden is on the insurance company and since no employee from Premier Automobiles Ltd. was examined it is not possible to come to the conclusion that the entries in the cover note, exhibit 32, were not filled in by the employee of the Premier Automobiles Ltd. In the absence of material evidence on record one cannot jump to the conclusion merely on surmises and conjectures that the impugned cover note was not in existence on the date of the accident.
16. Mr.Shah has then relied upon the fact that some other policy was found from the said Fiat car and that was done with a view to dodge the police. Though the other policy is alleged to have been found from the car no question in that regard has been put either to the driver, Shabir or the manager, Shri Solanki. They might have some probable explanation. But even if some other policy was found in the car, that would not help Mr.Shah to prove that the cover note, exhibit 32, was not in existence on November 21, 1973.
17. In our opinion, none of the aforesaid circumstances, even taken together, will lead to an inference that the date which is entered in the cover note exhibit 32 is not the correct date or that the said cover note was not in existence on the date of the accident. The insurance company had given power to fill in the blanks in the cover notes to the dealer and the said blank cover notes duly signed by the responsible officer of the insurance company were given to the dealer in advance. Therefore unless a very strong case is made out and when the manager of the dealer has stated the he had entered that date in his own handwriting on November 18, 1973, and that other particulars were filled in by the employee of Premier Automobiles Ltd. it is not possible for us to come to the conclusion that the cover note, exhibit 32, which bears the date November 18, 1973, was not in existence on the date of the accident though there are some suspicious circumstances as pointed out by Mr.Shah in favour of the insurance company.
18. In the aforesaid view of the matter, thee is no reason for us not to accept the conclusion reached by the Tribunal who had the advantage to see the witnesses in the witness-box and to mark their demeanor, and when the Tribunal has believed the evidence of the driver Shabir and the manager Shri Solanki and has come to the conclusion that the cover note, exhibit 32 was in existence at the date of the accident we hold that the appellant insurance company has failed to prove that the cover note exhibit 32 was not in existence on the date of the accident. Therefore, the appellant-insurance company is liable to the claimants for payment of compensation awarded by the Tribunal.
19. The respondents-claimants have filed cross-objections but Mr.Shethna appearing for the claimants has sought our permission to withdraw the same before effective hearing. Permission is granted and, therefore the same stands disposed of as withdrawn and it is not necessary to consider the same.
20. In the result the appeal fails and the same is dismissed with costs.