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2005 DIGILAW 62 (ORI)

Divisional Manager, New India Assurance Co. Ltd. v. Rulla Dei

2005-01-20

L.MOHAPATRA

body2005
JUDGMENT L. MOHAPATRA, J. : The above six appeals are directed against the award passed by the 2nd Motor Accident Claims Tribunal, Cuttack, directing payment of compensation to the claimant-respondents in all the six appeals. It appears from the records that the claimants in all the appeals filed six separate Misc. Case claiming compensation before the Tribunal and the Tribunal heard all the cases together since they arise out of the same accident and disposed them of in a common award giving rise to the present appeals. 2. The facts leading to filing of the claim cases are that on 9.7.1985 deceased Bharat Kumar Baj, deceased Bidyadhar Behera and injured Sarat Chandra Rout, Sasanka Sekhar Satpathy, Krushna Chandra Patra and Gopal Chandra Patra had been to Barabati market to purchase vegetables. They purchased vegetables and were load¬ing the same in Truck bearing Registration No.BPT 757 parked on the left side of N.H.5 near the said market. The deceased Bharat Kumar Baj was standing on the Dala of the Truck whereas deceased Bidyadhar Behera was loading vegetable bags kept on the side of the road with the help of deceased Bharat Kumar Baj. The injured Sasanka Sekhar Satpathy was waiting with his vegetables on the side of the road whereas the injured Krushna Chandra Patra had climbed over the dalla of the Truck. Injured Gopal Chandra Patra after loading the vegetables was sitting on the dalla of the Truck. At that time the offending bus bearing Registration No.ORJ 3673 came at a high speed from the backside of the Truck and collided with the dalla of the Truck. As a result of the acci¬dent, the Truck was pushed ahead and in the process Krushna Chandra Patra, Sasanka Sekhar Satpathy and Bidyadhar Behera sustained injuries. Bidyadhar Behera along with Gopal Patra and Krushna Chandra Patra were thrown out of the dalla of the Truck. While Bharat Kumar Baj and Bidyadhar Behera died at the spot, Gopal Patra, Krushna Chandra Patra and Sasanka Sekhar Satpathy Sustained severe injuries. All the injured were shifted to Singh¬pur Hospital and thereafter to S.C.B. Medical College and Hospi¬tal for treatment. 3. The case of the claimants is that the offending bus was being driven in a rash and negligent manner at a high speed resulting in the accident and the vehicle was insured with the present appellant at the time of the accident. 3. The case of the claimants is that the offending bus was being driven in a rash and negligent manner at a high speed resulting in the accident and the vehicle was insured with the present appellant at the time of the accident. The legal heirs of deceased Bharat Kumar Baj filed Misc. Case No.203 of 1985 claim¬ing compensation of Rs.99,500/- and the Tribunal awarded Rs.75,000/-. The parents of the deceased Bidyadhar Behera filed misc. Case No.198/95 claiming compensation of Rs.50,000/- and they were awarded Rs.35,000/- by Tribunal. The injured Sarat Chandra Rout filed Misc. Case No.45/86 claiming compensation of Rs.50,000/- and he was awarded Rs.15,000/-by the Tribunal. In¬jured Sasanka Sekhar Satpathy filed Misc. Case No.367/85 claiming compensation of Rs.75,000/- and the Tribunal awarded Rs.20,000/- as compensation. Injured Krushna Chandra Patra filed Misc. Case No.368/85 claiming compensation of Rs.50,000/- and the Tribunal awarded Rs.10,000/- as compensation. Injured Gopal Chandra Patra filed Misc. Case No.365/85 claiming compensation of Rs.50,000/- and the Tribunal awarded Rs.25,000/- as compensation. 4. The Tribunal found that the offending vehicle on the date of the accident was validly insured with the present appel¬lant and accordingly directed the appellant to indemnify the award amount. Shri Ray, learned counsel appearing for the appel¬lant in all the cases submitted that prior to the date of acci¬dent the policy had been cancelled as the Cheque issued towards payment of premium had been dishonoured. According to Shri Roy, the policy was for the period from 16.3.1985 to 15.3.1986 and the Cheque was given to the appellant on 14.3.1985 (Ext.1) to¬wards premium. The Cheque having been dishonored, the policy was cancelled on 11.4.1985 whereas the accident took place on 9.7.1985. It was also contended that much before the accident took place the owner of the vehicle was intimated about the cancellation of the policy by letter dated 19.4.1985 and, there¬fore, the Insurance Company is not liable to indemnify the award amount. It was also contended by Shri Ray that as required under Section 105 of the Motor Vehicles Act, 1939 (hereinafter referred to as the ‘Act’), intimation was also given to the registering authority regarding the cancellation of policy and, therefore, the Insurance Company is not liable to indemnify the award amount. 5. It was also contended by Shri Ray that as required under Section 105 of the Motor Vehicles Act, 1939 (hereinafter referred to as the ‘Act’), intimation was also given to the registering authority regarding the cancellation of policy and, therefore, the Insurance Company is not liable to indemnify the award amount. 5. Learned counsel appearing for the respondents in all the appeals submitted that requirement of Section 105 of the Act has not been complied with and there was no intimation to the registering authority with regard to the cancellation of the policy. The said provision being mandatory, in the eye of law the policy continued to be a valid one and operative on the date of accident. 6. The only ground raised in the appeals as it appears from the submission of the learned counsel appearing for the parties is with regard to the non-compliance of Section 105 of the Motor Vehicles Act, 1939. Section 105 of the Act runs as follows :- “105. Duty of insurer to notify registering authority can¬cellation or suspension of the policy-Whenever a policy of insur¬ance issued under the provisions of this Chapter is cancelled or suspended by the insurer who has issued the policy, the insurer shall within seven days notify such cancellation or suspension to the registering authority in whose records the registration of the vehicle covered by the policy of insurance is recorded or to such other authority as the State Government may prescribe.” It is very clear from the said provision that whenever a policy of insurance is cancelled or suspended by the insurer, the insurer shall within seven days notify such cancellation or suspension to the registering authority in whose records the registration of the vehicle covered by the policy of insurance is recorded or to such other authority as the Government may pre¬scribe. Much reliance was placed by the learned counsel for the appellant on a decision of this Court in the case of The Divi¬sional Manager, National Insurance Co. Ltd.-v- Tasri Pradhan and others,* reported 1996 (2003) CLT 462 and it was contended that when the Cheque issued by the owner of the vehicle returns unpaid due to inadequate funds in the account of the owner, the insurer is not liable to cover the liability. Reliance was also placed by the learned counsel for the appellant in the case of M/s. Oriental Insurance Co. Reliance was also placed by the learned counsel for the appellant in the case of M/s. Oriental Insurance Co. Ltd. v. DInabandhu Nayak and another,reported in 2004 (1) OLR 292 and it was submit¬ted that when a Cheque given by the owner towards the premium bounces, the insurer cannot be saddled with the liability to compensate the third party. In both the decisions, non-compliance of Section 105 of the Act was not the issue. In the case of Divisional Manager, National Insurance Co. Ltd. -v- Tasri Pradhan and others, the premium paid by the owner of the vehicle by way of two Cheques bounced because of want of funds and the policy stood cancelled. This Court relying on a decision of the Apex Court in the case of National Insurance Company Ltd. Vrs. Seema Malhotra and others, reported in (2001)3 SCC 151 , held that when the policy is cancelled on the ground of dishonor of Cheque, the insurer cannot be saddled with the liability. However the question as to whether there was non-compliance of Section 105 of the Act or not, was never raised or decided in the said decision. Even in the case of M/s. Oriental Insurance Co.Ltd.-v-Dinabandhu Nayak and another, Section 105 of the Act was never taken into consideration and on facts of the case, the Court held that the insurer is liable for payment of compensation. A bare perusal of the Section itself makes it very clear that in the event of cancellation or suspension of policy by the insurer, the insurer is required to notify such cancellation or suspension to the registering authority within seven days. There is nothing on record to show that such cancellation of policy was intimated to the registering authority. O.P.W.1 in his deposition has stated that intimation was given to the registering authority regarding cancellation of the policy but no document was produced in sup¬port of such evidence. Moreover, this witness has further stated in his cross-examination that the registering authority had been intimated by post but papers relating to that are not available in the office. Under the circumstances,the Tribunal rightly entertained a doubt about the claim of O.P.W.1 that intimation was given to the registering authority about the cancellation of the policy. Moreover, this witness has further stated in his cross-examination that the registering authority had been intimated by post but papers relating to that are not available in the office. Under the circumstances,the Tribunal rightly entertained a doubt about the claim of O.P.W.1 that intimation was given to the registering authority about the cancellation of the policy. Further this witness has no where stated that intimation to the Regional Transport Officer was given within seven days from the date of cancellation of the policy. In view of the above, there is clear non-compliance of Section 105 of the Act. There being clear non-compliance of the mandatory provisions of Section 105 of the Act, I do not find any reason to differ with the findings of the Tribunal with regard to the liability of the Insurance Company to indemnify the award. No other ground having been taken in these appeals, I do not find any merit in any of the appeals, and accordingly all the appeals are dismissed. Appeals dismissed.