JUDGMENT (Deepak Gupta, J.) - These two appeals arise out of a common award of the learned Motor Accident Claims Tribunal-II, Shimla dated 29.4.2000 whereby he has allowed the claim petitions and held the Insurance Company liable to indemnify the owner and pay the compensation. 2.The brief facts are that the vehicle No. HP-02-5128 met with an accident on 4.5.1996. The vehicle was being driven by its owner Sh. Ganga Lal. In this accident Smt. Radha Devi and Sh. Kushal Singh Negi died. Their legal heirs filed the two claim petitions. The learned Tribunal allowed both the claim petitions. Hence, these two appeals. 3.Challenge of the Insurance Company to the award is on two grounds. Firstly, the vehicle in question i.e. Maruti Van No. HP-02-5228 was admittedly a taxi and therefore a commercial vehicle and since the driving licence of Ganga Lal did not have any endorsement entitling him to drive a transport vehicle there was a violation of the policy and the Insurance Company is not liable. Second contention is that the vehicle in question was not duly insured on the date of accident since cheque paid for payment of the premium had bounced. 4.As far as the first contention is concerned, a Full Bench of this Court dealt with a similar question and disposed of the reference in view of the judgments of the Apex court rendered in National Insurance Co. Ltd. v. Kusum Rai and others, 2006(4) SCC 250 and National Insurance Company Ltd. v. Annappa Irappa Nesria and others, 2008(3) SCC 464. 5.It is contended by Sh. Virender S. Chauhan that the present case is squarely covered by the judgment rendered in Annappa Irappa’s case. On the other hand, the contention of Sh. Ashwani Sharma is that the case is squarely covered by Kusum Rai’s case. 6.In Kusum Rai’s case (supra) the Apex Court was dealing with the question as to whether the Insurance Company could be held liable in a case where the driver driving the taxi, a commercial vehicle, did not hold a driving licence entitling him to drive a commercial vehicle. In para 11, the Apex Court held as follows: “11. It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefore. In para 11, the Apex Court held as follows: “11. It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefore. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was hold of a licence to drive a Light Motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defience.” 7.Thereafter, the Apex Court in New India Assurance Company Ltd. v. Prabhu Lal, 2008(1) SCC 696, also took a similar view. However, it would be pertinent to mention that case arose out of the proceedings under the Consumer Protection Act. The Apex Court in that case held as follows :- “33. In our considered view, the State Commission was wrong in reversing the finding recorded by the District Forum. So far as Ashok Gangadhar is concerned, we will deal with the said decision little later but from the documentary evidence on record and particularly, from the permit issued by the Transport Authority, it is amply clear that the vehicle was a `goods carrier’ (Section 2(14). If it is so, obviously, it was a `transport vehicle’ falling under clause (47) of Section 2 of the Act. The District Forum was, therefore, right in considering the question of liability of the Insurance Company on the basis that Tata 709 which met with an accident was `transport vehicle’. 38. We find considerable force in the submission of the learned Counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question. 41. In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a Light Motor Vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable.” 8.If the matter had ended here the case could have been decided very easily but the latest judgment of the Apex Court in National Insurance Company Ltd. v. Annappa Irappa Nesria and others, 2008(3) SCC 464 has not only considered these points but also considered the effect of the amendment made in the Motor Vehicles Act. After considering the entire law the Apex Court held as follows :- “20. From what has been noticed hereinbefore, it is evident that `transport vehicle’ has now been substituted for `medium goods vehicle’ and `heavy goods vehicle’. The light motor vehicle continued, at the relevant point of time, to cover both, `light passenger carriage vehicle’ and `light goods carriage vehicle’. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well. 21. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law.” 9.The Apex Court therefore held that w.e.f. 28.3.2001 the endorsement to drive a transport vehicle in necessary but prior to that date such endorsement was not necessary since the light motor vehicle in its definition as it existed prior to said date included a light transport vehicle. It is thus obvious that the endorsement is required only after 28.3.2001. It is thus obvious that the endorsement is required only after 28.3.2001. 10.Therefore, following the latest decision of the Apex Court in National Insurance Company Ltd. v. Annappa Irappa Nesria and others, 2008(3) SCC 464 it is held that the Insurance Company is liable to indemnify the insured and is therefore liable to pay the amount of compensation since the accident in the present case occurred before 29.3.2001. 11.Coming to the second question the undisputed facts as approved on record are that Sh. Ganga Lal got the vehicle insured from the New India Insurance Company on 16.2.1996 and a cover note Ext.RW-5/8 was issued on the same date and the insurance was valid from 16.2.1996 to 15.2.1997. The deceased Ganga Lal paid the insurance premium of Rs. 4662/- vide cheque dated 16.2.1996 drawn on Punjab National Bank, Shimla (Ext.RW-5/1). This cheque bounced due to insufficiency of funds in the account of the insured and communication in this regard was exhibited as Ext.RW-5/2 and the cheque was returned to the Insurance Company alongwith communications Ext.RW-5/3 and RW-5/4 on 11.3.1996. On the same date a letter was sent by the Insurance Company to Sh. Ganga lal informing him that the cheque issued by him in consideration of the premium payable for the insurance policy had been dishonoured and therefore the insurance cover note stood cancelled from the date of inception of the policy. It is not disputed that this letter was received by Sh. Ganga lal. Here the dispute starts. 12.According to the heirs of Sh. Ganga lal on 14.3.1996 Sh. Ganga lal borrowed Rs. 2000/- from RW-2 Sh. Devi Dhar and thereafter paid a sum of Rs. 4662/- in cash to the Branch Manager of the National Insurance Company at Tapri. According to them this payment was made in the presence of RW-3Sh.Rama Nand and that no receipt was issued. Sh. Ganga lal was informed that the receipt as well as the Insurance Policy would be sent at the address of the insured. It is not disputed that in fact a policy of insurance was dispatched from the office of the National Insurance Company to the address of the insured on 27.3.1996 which was received by the insured on 30.3.1996. Sh. Ganga lal was informed that the receipt as well as the Insurance Policy would be sent at the address of the insured. It is not disputed that in fact a policy of insurance was dispatched from the office of the National Insurance Company to the address of the insured on 27.3.1996 which was received by the insured on 30.3.1996. The policy of insurance is Ext.RW-1/C and the envelope in which it was sent bearing stamp of dispatch of 27.3.1996 and the stamp of reaching the destination post office on 30.3.1996 is. Ext.RW-1/D. It is also not in dispute that after the accident had taken place the Insurance Company dispatched another copy of the letter dated 11.3.1996 which was sent after the death of the insured. This letter was dispatched on 9.5.1996 and reached its destination post office on 13.5.1996. 13.It is strenuously contended by Sh. Ashwani Sharma that it is proved to the hilt that the original cheque was dishonoured. He submits that the heirs of Sh. Ganga lal have failed to produce any receipt or any other documentary evidence to show that the premium was paid in cash by Sh. Ganga lal after the letter dated 11.3.1996 was delivered to him by hand. 14.On the other hand Sh. Chauhan, learned Counsel for the heirs of Sh. Ganga lal submits that the insurance premium was paid as is apparent from the statements of the witnesses and that in case such premium had not been paid there was no need for the Insurance Company to have dispatched the insurance policy on 27.3.1996. 15.Undisputedly the Insurance Company was aware on 11.3.1996 that the cheque for payment of premium had been dishonoured and thereafter communication dated 11.3.1996 was sent to Sh. Ganga lal. There is no explanation as to why after issuance of the letter dated 11.3.1996, the policy of insurance was dispatched to the insured on 27.3.1996. Sh.Ashwani Sharma has urged that this could not be due to some mistake. However, this is not borne out from the evidence. None of the witnesses who appeared on behalf of the Insurance Company stated that the policy was dispatched due to some mistake. In normal course such a mistake should not have occurred. Since the insurance had been cancelled, obviously the Insurance Company would have made an endorsement on its file that the same had been cancelled. None of the witnesses who appeared on behalf of the Insurance Company stated that the policy was dispatched due to some mistake. In normal course such a mistake should not have occurred. Since the insurance had been cancelled, obviously the Insurance Company would have made an endorsement on its file that the same had been cancelled. This policy of insurance was dispatched by the Branch Manager, Tapri. It was he himself who had canceled the insurance earlier. He also appeared in the witness box but has not given any explanation as to how and under what circumstances this policy was dispatched on 27.3.1996. 16.On the other hand, the heirs of Sh. Ganga lal have produced Sh.Devi Dhar who states that deceased Ganga lal had borrowed Rs. 2000/- from him to pay the insurance premium. The insurance premium was not paid in his presence but he has proved the fact that Ganga lal borrowed some money from him. The heirs of Ganga lal have also examined Sh. Rama Nand to prove the fact that insurance premium was paid in his presence. His statement does not inspire confidence. He stated that he worked with Ganga lal only for 20-25 days prior to the accident. In a taxi normally no other person is employed. Secondly, if the witness was employed with the taxi he should also have been in the taxi when the accident took place. Therefore his evidence is not trustworthy. 17.However, even if we discard the testimony of Rama Nand the fact remains that RW-2 has stated that the money was borrowed for paying the premium. It would also be the natural event of things that when the insurance policy was cancelled the insured would try to get the same revived. Ganga Lal has unfortunately died. The Insurance Company did not produce its record especially the accounts record to show whether any amount of Rs. 4662/- had been received by it or not on 14.3.1996. There was a specific allegation that Ganga lal had paid the amount in cash on this date. In case this amount had not been paid, what prevented the Insurance Company to produce the record such as cash book etc. which was in its possession to show that no such amount had been deposited on the said date. Adverse inference naturally has to be drawn against the Insurance Company. In case this amount had not been paid, what prevented the Insurance Company to produce the record such as cash book etc. which was in its possession to show that no such amount had been deposited on the said date. Adverse inference naturally has to be drawn against the Insurance Company. Further more, the issuance and dispatch of the policy of insurance on 27.3.1996 i.e. after 14.3.1996 indicates that some amount must have been paid after 11.3.1996 which led the Insurance Company to issue the policy of insurance. 18.Before parting with the case I must observe that the Insurance Company has failed to explain why the copy of letter dated 11.3.1996 was again dispatched to the deceased insured after the accident had taken place on 7.5.1996. The Branch Manager in his statement has admitted that he saw the site of accident and was informed that Sh. Ganga Lal had died in the accident. Then what was the need of dispatching a copy of the earlier letter bearing the old date of 9th May, 1996 after Ganga Lal was already dead. This also indicates that the Insurance Company was trying to wriggle out of its liability. 19.In view of the above discussion, I find no merit in the appeals which are accordingly rejected. M.R.B. ———————