AI Structured Summary
Not yet generated for this judgment
Judgment
This is an appeal filed by the appellant/Insurance Company challenging the judgment and award dated 24th December, 2019 passed by the
Member, Motor Accident Claims TribunalÂ3, Nagpur in MACP No. 501 of 2000, thereby directing the appellant to first pay the awarded money and
then recover the same from the owner of the offending travel bus.
On 18th May, 2000, deceased Laxman Kadve was driving his jeep bearing registration No. MHÂ31/GÂ4638. When he reached near Thanegaon
area on National Highway No.6, a travel bus bearing registration No. MHÂ31/WÂ8843 came in high speed, rash and negligently and gave dash to the
jeep of deceased. Deceased sustained injuries and died in the accident. Crime No. 52/00 came to be registered against the driver of travel bus at
Police Station, Karanja. Legal heirs of deceased filed Claim Petition No. 501 of 2000 before MACT, Nagpur. The appellant appeared and filed written
statement at Exh.25 and denied the claim on the ground that respondent No.1/ owner of offending bus had issued Cheque No. 016442 dated 04th
January, 2000 for the premium of insurance policy. The said cheque was returned unpaid with endorsement by the bank “not arranged forâ€.
Therefore, policy issued by respondent No.2 (in original petition)/ appellant/insurance company was cancelled on 11th January, 2000. After
cancellation of the policy, the said fact was informed to respondent No.1/owner. Respondent No.1 has not taken any further steps. On the date of
accident, offending travel bus was not insured with the appellant/insurance company. Therefore, insurance company is not liable to pay the amount of
compensation.
After framing the issues, respondent Nos.1 and 2 adduced their respective evidence. Insurance Company examined the Manager Shri Thool in
sister case in respect of same accident.
Heard Shri D.N. Kukday, learned Counsel appearing on behalf of the appellant and Ms. Monali Pathade, learned Counsel appearing on behalf of
respondent Nos.1 to 6.
Shri Kukday, learned Counsel for the applicant has submitted that on the date of accident, the appellant had not insured the offending bus and,
therefore, insurance company is not liable to pay the amount of compensation. In support of his contention, he placed heavy reliance on the judgments
of Hon'ble Apex Court in the cases of United India Insurance Co. Ltd. .v. Laxmamma and others (reported in IV (2012) ACC 801 (SC) )and
National Insurance Co. Ltd. .v. Yellamma and another (reported in IV (2008) ACC 774 (SC)).
Ms. Pathade, learned Counsel for the respondents has also relied on the judgment of Hon'ble Apex Court in the case of National Insurance Co.
Ltd. .v. Yellamma and another (reported in IV (2008) ACC 774 (SC)).
There is no dispute that on the date of accident, offending bus was owned by respondent No.7/Dilip Singh Chawla (original respondent No.1).
Learned Tribunal directed the insurance company/ appellant to first pay the awarded amount and recover the same from the owner/respondent No.7.
Such type of order can be passed if there is any policy in existence at the time of accident. In the present case, respondent No.7Â owner has
admitted in his evidence that he was informed by the appellant about the cancellation of policy. Thereafter, he had issued notice etc. But, nothing in on
record to show that such notices were received by the appellant. Admission of owner of offending bus shows that the cheque which was issued by
him towards the payment of premium of insurance policy, was dishonoured. Policy was cancelled and it was informed to him by the appellant.
Admission of appellant shows that the cheque was given towards premium. The said cheque was of Rs.23,030/Â for the insurance of two buses. The
said cheque was returned back on 08th January, 2000 by the bank with an endorsement “not arranged forâ€. Thereafter the appellant had
cancelled the policy of offending bus and accordingly informed the owner of bus on 10th January, 2000.
Accident took place on 18th May, 2000. Therefore, it is clear that at the time of accident, offending bus was not insured with the appellant and it is
also observed by the Tribunal in para 11 of the judgment. Therefore, it is directed to the insurance company to pay first and recover the same from the
owner of the offending bus. The liability of insurance company to pay first does not arise as there was no insurance policy issued by the appellant on
the day of accident. The appellant as well as respondents both relied on the judgment of National Insurance Co. Ltd. .v. Yellamma and another (cited
supra). Hon'ble Apex Court has held that, “the Tribunal found no valid insurance policy on the date of accident and excluded the insurance
company from liability of paymentâ€. It is further held that, “the High Court has wrongly proceeded on the premise that a cheque could be issued
by a third party. A contract of insurance like any other contract, is a contract between the insured and the insurer. The amount of premium is required
to be paid as a consideration for arriving at a concluded contract. If the insurer insists that a cheque should be issued only by the insured and not by a
third party, no exception thereto can be taken. Question of purported contract of insurance while taking recourse to Section 147 of the Motor Vehicles
Act does not ariseâ€
In the said judgment, Honble Apex Court, in exercise of jurisdiction under Article 142 of the Constitution of India, directed the insurance company
to pay the amount of compensation and thereafter recover the same.
In the case of United India Insurance Co. Ltd. .v. Laxmamma and others (cited supra), the Apex Court has held that, “Premium cheque was
dishonoured, liability of insurer, where policy of insurance is issued by authorised insurer on receipt of cheque towards payment of premium and such
cheque is returned dishonoured, liability of authorised insurer to indemnify third parties in respect of liability which that policy covered subsists and it
has to satisfy award unless policy is cancelled by authorised insurer and intimation of such cancellation reached insured before accidentâ€. (emphasis
supplied).
In the present case, the appellant/insurance company, due to non payment of premium by the owner of offending bus, cancelled the policy on 10th
January, 2000 and informed the owner of bus about the same. Accident took place on 18th May, 2000. Therefore, it is clear that on the date of
accident, there was no insurance of offending bus by the appellant. Therefore, the appellant/insurance company cannot be directed to pay amount of
compensation and then recover. Hence, the following order.
In the result, the appeal is allowed as prayed. Impugned judgment in Claim Petition No. 501 of 2000 dated 24th December, 2010 insofar as it relates to
the appellant/insurance company is hereby quashed and set aside. The claim petition stands dismissed against the appellant/respondent No.2/insurance
company. The claimants shall recover the amount of compensation from the owner of offending travel bus/respondent No.1. Rest of the impugned
judgment is maintained.
Shri D.N. Kukday, learned Counsel for the applicant/insurance company submits that entire decreetal amount is deposited before this Court. In view
of the order passed in favour of the appellant, entire amount deposited by the appellant be refunded.