Dhani Ram vs National Insurance Co. Ltd. and Others

B.S. Verma, J.—Heard. This appeal preferred u/s 173 of the Motor Vehicles Act, 1988, is directed against the judgment and award dated 13th July, 2009, passed by Motor Accident Claims Tribunal/District Judge, Pithoragarh in M.A.C.P. case No. 65 of 2007, whereby said Court has directed the appellant to pay Rs. 3,69,500 as compensation to the claimants/respondents.

Brief facts, of the case are that on 19th. February, 2007 Bahadur Singh (deceased) was on his way to his home on his motor cycle bearing registration No. UA 06/8950. At about 1.00 p.m., when he reached Kothera, a canter bearing registration No. UA 04D/1358, which was being driven rashly and negligently by its driver coming towards Gangolihat. On seeing its uncontrollable speed Bahadur (deceased) has parked his motorcycle on left side of road but due to rash and negligent driving of the driver he dashed the motorcycle. In the accident Bahadur suffered injuries and was taken to hospital by Sector Magistrate, and succumbed to the injuries.

The claim petition was contested by the respondents. The owner of the vehicle has stated that on the day of incident driver of the truck was having a valid driving license and he was driving the vehicle with normal speed. He has further pleaded that due to negligence and high speed of motorcycle deceased (Bahadur) met to accident. He has further stated that on the day of incident he had valid and lawful contract of insurance of the vehicle and the Insurance Company is responsible for the payment of the amount.

The learned Tribunal has held that the truck was not insured on the date of accident and liability to pay compensation has been fastened on appellant owner of vehicle. The only question is to be decided in this appeal whether vehicle was insured with the Insurance Company and all the papers of canter bearing registration No. UA 04/D 1358 was valid? If so its effect?

The learned Tribunal after perusing the evidence gave finding that a cheque amounting Rs. 12,344 was handed over to respondent No. 2 insurer of the vehicle respondent No. 1 for insurance of the truck but when the cheque was presented to bank for cash the same was dishonoured. On the ground that it is cheque issued in favour of Dhani Ram for crop loan it cannot be cash except drawer of the cheque and it is not transferable. Notice, was also issued to the respondent No. 1 in this regard. According to paper No. 93C the cheque given by the respondent No. 1 for insurance of his vehicle was not a cheque in favour of Insurance Company but it was issued in favour of appellant for crop loan for which only drawer is authorized to collect the amount, and no other person or firm. Therefore, information regarding the dishonour of the cheque and cancellation of policy was given to appellant by the respondent No. 1. Therefore, the vehicle bearing registration No. UZ 04/D1358 was not insured with the Insurance Company on the day of the incident. The owner of the vehicle is directed to pay the amount of compensation to the claimant.

This fact is not disputed that the cheque was given to the Insurance Company for insurance of the vehicle and that was dishonoured. The policy was cancelled much prior when the accident took place. The policy was not in existence on the day of incident.

Learned Senior Advocate, appearing on behalf of the appellant has contended that in view of the case Oriental Insurance Co. Ltd. Vs. Inderjit Kaur and Others, , the Oriental Insurance Company is liable to pay the compensation even if the cheque has been dishonoured and the policy has been cancelled.

The learned Counsel for the appearing on behalf of the Oriental Insurance Company has submitted that the Apex Court in the case of Deddappa and Others Vs. The Branch Manager, National Insurance Co. Ltd., , wherein the accident took place after the cancellation of the communication of insurance policy, has dealt with the case of Oriental Insurance Co. Ltd. v. Inderjit Kaur and Others (supra) as well as the case of New India Assurance Co. Ltd. Vs. Rula and Others, , and it was held that ordinarily a liability under the contract of insurance would arise only on payment of premium, if such payment was made a condition precedent for taking effect of the insurance policy but such a condition which is intended for the benefit of the insurer can be waived by it. In para 20 it was held that the dicta laid down therein clarified that if on the date of accident the policy subsists, then only the third party would be entitled to avail the benefit thereof.

In the case at hand, the policy was cancelled. The learned Senior Advocate appearing on behalf of the appellant has contended that the Insurance Company did not discharge its burden to prove that the intimation was given to the insured. On behalf of Insurance Company O.P.W.1 B.S. Martoliya has been examined and copy of despatch register and copies of the receipts were filed. The copy of despatch register was proved by the witness from the original register showing that the intimation was given on 28th June, 2006. The appellant did not dare to appear in the witness box to deny the document in rebuttal. The admitted fact is that the accident has occurred on 19th February, 2007 and the policy was cancelled on 28th June, 2006 by the Insurance Company since the cheque was dishonoured and the policy was not in existence, therefore, in view of subsequent judgment Deddappa and Others v. Branch Manager, National Insurance Co. Ltd. (supra), the third party liability would be borne by the owner of the vehicle. I do not find any infirmity in the impugned award and the owner has rightly been held liable to pay the compensation.

The appeal is accordingly dismissed.

Let the statutory amount deposited by the appellant be remitted to the Tribunal concerned.