Madhya Pradesh High Court
National Insurance Co. Ltd. vs Ramzan Khan And Ors. on 16 July, 2001
Equivalent citations: 2003ACJ951, 2002 A I H C 299, (2003) 3 TAC 804 (2003) 2 ACJ 951, (2003) 2 ACJ 951
Author: Arun Mishra
Bench: Arun Mishra
JUDGMENT Bhawani Singh, C.J.
1. This appeal is directed against the award passed by 7th Additional Motor Accidents Claims Tribunal, Bhopal, in Claim Case No. 17 of 1999, dated 18.4.2000.
2. Briefly stated, the facts are that on 20.6.1998, Dawood (30) was travelling by bus No. MP 04-7330, owned by Lakhansingh and driven by Lal Miyan. When the bus reached near Holy Family School, Shanti Nagar, Bhopal, Ashok Leyland dumper No. MP 04-F 8606, owned by Ramgopal and driven by Dashrath at an excessive speed and negligently, dashed against the bus resulting in the accident. As a result, Dawood died on account of the injuries received by him in this accident. Claimants, father and mother of the deceased, preferred claim petition alleging that on account of rash and negligent driving of the dumper by the driver thereof, the accident took place in which Dawood died, who was working as a mechanic/ repairer of dynamos and batteries and was earning Rs. 250 per day. Consequently, compensation of Rs. 15,55,000 is claimed against the owner, driver and insurance company jointly and severally.
3. In reply, the owner and driver of the dumper stated that there was no negligence in causing the accident by them; the dumper was stationary on the left side of the road and the accident took place due to negligence of the driver of the bus which dashed against the dumper, therefore, they are not liable to pay the compensation. Owner and driver of the bus stated they were not responsible for the accident; it was due to negligence and excessive speed of the dumper driver as a result of which the dumper dashed against the bus. It is also stated that it was a case of contributory negligence and in case compensation is awarded, it must be apportioned.
4. National Insurance Co. Ltd. submitted that the driver of the dumper was not holding valid and effective driving licence to drive the vehicle. The owner of the dumper approached the company on 30.3.1998 and proposed for the insurance of the vehicle. Premium amount for the policy was paid through cheque No. 0346732, dated 30.3.98 drawn on Bank of Baroda, Kotra, Sultanbagh, Bhopal. This cheque was tendered towards premium and deposited in the bank with the account of the company. It was dishonoured on the ground that sufficient funds were not there in the account of the owner of the dumper. Immediately after return of the cheque by the bank, the cover note/policy was cancelled from the date of its inception and owner of the dumper was duly informed about the dishonour of the cheque tendered by him. This information was sent by registered letter, duly received by the insured, but he did not turn up for obtaining a fresh insurance policy. Therefore, the insurance policy was issued after accepting the premium in cash on 22.6.1998.
5. On the basis of respective pleadings of parties, the Claims Tribunal framed issues and the parties led evidence thereon. One of the findings recorded by the Claims Tribunal is that the accident took place due to rash and negligent driving of the dumper as a result of which Dawood died and that claimants were entitled for compensation and, therefore, award of Rs. 1,92,000 is made carrying interest at the rate of 12 per cent per annum from the date of application. This award has been assailed through this appeal by National Insurance Co. Ltd. with which the dumper was insured. There is no appeal for enhancement.
6. Mr. Subramaniam, learned Counsel appearing for the appellant, contended that the order of the Claims Tribunal is not sustainable on facts and law; the dumper was not insured on the date of accident, since the cheque issued towards premium, stood dishonoured, information of which had been sent to the owner of the vehicle by registered letter, copy of which and postal receipt thereof are on record. That being so, contract of insurance did not exist between the parties on the date of accident, therefore, the appellant was not liable to pay the compensation. Reliance was placed on Apex Court decision in National Insurance Co. Ltd. v. Seema Malhotra 2001 ACJ 638 (SC).
7. Mr. Ajay Mishra appearing for the respondent No. 3, submitted that the award is legally sustainable and contention to the contrary is liable to be rejected. Same is the submission of Mr. V. Rusia and Mrs. Indra Nair appearing for respondent Nos. 1, 2 and 7 respectively.
8. After giving due consideration to the submissions advanced by learned Counsel for parties, we are of the opinion that the award passed by the Claims Tribunal is sustainable.
9. There is no dispute that the dumper was insured with the appellant. Cheque for renewal of the vehicle was issued on 30.3.1998 and policy was issued on 31,3.98 up to 30.3.1999. The accident took place on 20.6.1998. Cheque was dishonoured on 20.4.1998 and intimation was given about the same as per the appellant, but the fact remains that it did not bear the address of the insured that was available on the insurance policy. Therefore, the intimation was given on the address other than that was on the insurance policy. Therefore, the contention that it was sent at the address of the insured is not correct. The insured has specifically stated that he did not receive the intimation of cancellation. The Claims Tribunal has accepted the claim of the insured and rejected the defence taken by the insurer on this aspect of the matter. We think this conclusion of the Tribunal is clearly sustainable in view of clear position that intimation sent by the insurer to the insured is not on the address which was there on the insurance policy. The result is that contract of insurance existing between the parties remained in force and was not cancelled and contention to the contrary is liable to be rejected.
10. In view of the aforesaid conclusion, it is not necessary to examine that liability of the insurance company to the third party continues even if there is dispute between the insurer and the insured with respect to existence or non-existence of policy of insurance between them as per decisions of the Apex Court in case of Oriental Insurance Co. Ltd. v. Inderjit Kaur 1998 ACJ 123 (SC); National Insurance Co. Ltd. v. Seema Malhotra 2001 ACJ 638 (SC); New India Assurance Co. Ltd. v. Rula 2000 ACJ 630 (SC), followed by this court in Gaura Bai v. Dev Nath Makkad 2003 ACJ 836 (MP). Otherwise also the liability of insurance company to third party is clear by virtue of Section 149 of Motor Vehicles Act, 1988.
11. Consequently, there is no merit in this appeal and the same is dismissed.
12. Amount deposited in this case with the Claims Tribunal be paid to the claimants.
Costs on parties.