Rajasthan High Court - Jaipur
National Insurance Co. Ltd. vs Sanjana And Ors. on 14 September, 2005
Equivalent citations: II(2006)ACC295
Author: R.S. Chauhan
Bench: R.S. Chauhan
JUDGMENT Rajesh Balia, J.
1. We have heard learned Counsel for the parties.
2. These two appeals raise identical issues arising out of same accident which gave rise to two separate claims and, therefore, two separate appeals have been preferred. Appeal No. 1260/2004 relates to Claim Case No. 13/2003 whereas the another appeal No. 1261/2004 relates to claim case No. 12/2003 lodged before the Motor Accident Claims Tribunal, Rajgarh (Chum). Both the claims were decided by the joint award dated 19th Feb., 2004. The accident occurred on 17th March, 2002 resulting in death of two persons namely Kanheya Lal and Om Prakash, who were going on Bajaj Chetak scooter. While they were returning from Sakhu to Rajgarh, the scooter was hit by a jeep No. RJ 07/Temporary/1 P-77 as a result both the riders of the scooter died.
3. The claim No. 12/2003 was preferred by heirs and dependants of Kanheya Lal whereas claim No. 13/2003 was preferred by heirs and legal representatives of Om Prakash.
4. The Insurance Company, which is appellant before us has raised two fold defence to its liability arising from the accident. Firstly, it was pleaded that deficient premium was paid by the insured and until the 30th July, 2001 the remaining premium was not paid by the insured, therefore, the insurance company is not responsible for indemnifying the owner to indemnify as it has not undertaken any liability. It was also pleaded that the jeep was being driven in breach of terms of the Insurance Company and, therefore, the Insurance Company was not liable. The lack of valid licence with the driver of the jeep was also pleaded.
5. So far as the objection No. 2 is concerned, it was found that there is no evidence for what particular purpose the vehicle was being used at the time of accident to prove that vehicle was being used as goods carrier. Merely because at the time of accident some quantity of liquor was also found in the jeep, it cannot be said that the jeep was being used as goods carrier for transporting liquor as common course.
6. The another objection as to the absence of valid driving licence was also negatived by producing driving licence of the driver.
7. These two grounds are now not for consideration in this appeal.
8. Only the ground of the continued undertaking of the liability of the insurance company as a result of alleged deficient payment of premium is before us, about which it has been urged that in terms of Section 64VB of the Insurance Act unless full amount of premium is received by the Insurance Company, the Insurance Company's liability does not commence.
9. However, the question, whether the full premium demanded from the insured has been paid or not is a question of fact and the burden of proving that the full premium as demanded at the time of insurance was not paid is squarely on the appellant, who sought to avoid its liability under the cover note issued by it.
10. The learned Presiding Officer, Motor Accident Claims Tribunal and learned Single Judge, both have found that the insurance company has failed to prove that the full premium was not received and, therefore, the liability which it assumed on issuance of the cover note cannot be avoided by the Insurance Company.
11. On considering the contentions raised before us, we are of the opinion that the finding recorded by the Motor Accident Claims Tribunal as well as the learned Single Judge is fully justified and does not call for any interference.
12. From the perusal of the cover note which has been produced before the Tribunal, it is apparent that amount of premium calculated by the persons issuing the cover note has fully been paid and received by the insurer and it is not the case of the company either that amount calculated as per the cover note was not paid in full. If the amount demanded as a premium by the Insurance Company or its agent has been paid in full by the insured, the question of further inquiry of deficiency in payment of premium does not arise unless there is any evidence to suggest that insurance company ever informed the insured that the calculation of sum of premium required to be paid by the insurer was erroneous for some reason and he was required to pay additional premium before the liability could be undertaken by the insurance company. No such specific plea was taken by the insurance company nor any evidence to that effect has been led. In the absence of any such evidence, a the presumption arising from the receipt of the calculated sum of premium contained in the cover note of the insurance company negatives the contention raised by the appellant about the deficient receipt of premium for invoking applicability of Section 64VB at all.
13. The second aspect of the matter as it appears from the orders under appeal b is that two Courts below held that premium was alleged by the insurance company to be deficient solely on the ground that because at the time of accident jeep was being used as a goods carrier for transporting liquor and the cover note of the insurance company was not issued for treating the vehicle as a transport carrier, therefore, the liability arising from the vehicle used as transport carrier has not been undertaken by the Insurance Company and it could not have been taken unless the c additional premium for undertaking the risk coverage of goods carrier was paid.
14. We have noticed above that the Motor Accident Claims Tribunal has found against the insurance company that it has not been proved by it that the vehicle was used as a goods carrier. In fact, what has been contended before the Motor Accident Claims Tribunal was contrary to what has been pleaded by the insurance company in its written statement. In the written statement, it has taken the specific plea that by a registered notice dated 30th July, 2001, the insured was informed that his vehicle is a taxi jeep for which the premium of Rs. 11,900 was to be paid whereas by inadvertence Rs. 8,782 has been charged at the time of issuing the cover note. Therefore, the balance amount was demanded.
15. However, the alleged notice of the demand has been produced by the insurance company either to prove its issuance or to prove its contents.
16. At the time of hearing, the contention on behalf of insurance company was raised that the vehicle was being used for carrying goods namely the liquor as a transport carrier for which no extra premium was paid. It may be noticed that no arguments were raised before the Tribunal that the vehicle was used as a taxi ns public service vehicle for carrying passengers for hire or reward in the jeep. No evidence to that effect was led. Merely on the basis that at the scene of accident some pouches and a few bottles of liquor were found, it was contended that the vehicle was used for goods carrier. On the basis of recovery of certain bottles of liquor which may very well be carried for personal consumption and storage cannot furnish the basis of raising such presumptuous contentions that the vehicle was or has been used as goods carrier. It was not believed by the Tribunal as well as by the learned Single Judge. As a matter of fact, this finding that the vehicle was not being used as a goods carrier has not been challenged before us.
17. In view thereof, we do not find any substance in the contentions raised by the appellant-insurance company for invoking Section 64VB of the Insurance Act.
18. On merit of the award of quantum of compensation awarded in view of the finding in respect of the income of the deceased persons and the other material available on record including age of deceased persons, the award of Rs. 5,42,500 in the claim case arising out of death of Kanheya Lal and in the case of death of Om Prakash, the award amounting to Rs. 4,79,006 cannot be said to be in any way a excess.
Therefore, both the appeals are dismissed. No orders as to costs.