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2008 DIGILAW 609 (MP)

Bhagirath v. Jarnailsingh

2008-04-22

N.K.MODY

body2008
ORDER :- This order shall also govern the disposal of M.A. No. 856/2006 as in both the appeals the award under challenge is one dated 6-12-2005 passed by MACT, Biora and in both the appeals the parties are one and the same except the claimants/appellants. 2. hi M.A. No. 571/06 the award under challenge is passed in Claim Case No. 111/2003 while in M.A. No. 856/06 the award passed in Claim Case No. 159/03 is under challenge. 3. Short facts of the case in both the claim petitions are that on 15-4-2003, appellant Jagmohan and deceased Rambabu whose LRs. are appellants in M.A. No. 571/2006 were going in a Jeep bearing.No. MP04 H 5235, at that time a truck bearing registration No. MP04 BG 1733 which was being driven by respondent No. 1 rashly and negligently, owned by respondent No. 2 and insured with respondent No. 3, dashed the Jeep in which appellant Jagmohan and deceased Rambabu were travelling, with the result Jagmohan sustained injuries and Rambabu died. It was alleged that since the offending vehicle was insured with respondent No. 3, therefore, it was prayed that claim petition filed by the appellants be allowed and compensation be awarded. 4. The claim petition was contested by respondent No. 3 on various grounds including on the ground that offending vehicle was insured by respondent No. 3 w.e.f. 11-2-2003 to 10-2-2004 and premium was paid by respondent No. 2 through cheque No. 927713 which was dishonoured on 21-2-2003. It was alleged that since the cheque was dishonoured, therefore, policy was cancelled by respondent No. 3 on 21-2-2003 itself by issuance of letter to respondent No. 2 and intimation was also given to the concerned RTO. It was alleged that since the policy was cancelled, therefore, respondent No. 3 is not liable for payment of compensation. It was prayed that claim petition be dismissed against respondent No. 3. 5. After framing of issues and recording of evidence, learned tribunal allowed both the claim petitions and awarded a sum of Rs. 1,70,000/- in M.A. No. 571/2006 which was a death case and a sum of Rs. 5,000/- in M.A. No. 856/2006 to the injured Jagmohan and exonerated the respondent No. 3 from payment of compensation as policy was cancelled by respondent No. 3. Being aggrieved by the direction whereby respondent No. 3 has been exonerated, the present appeal has been filed. 6. 5,000/- in M.A. No. 856/2006 to the injured Jagmohan and exonerated the respondent No. 3 from payment of compensation as policy was cancelled by respondent No. 3. Being aggrieved by the direction whereby respondent No. 3 has been exonerated, the present appeal has been filed. 6. Learned counsel for appellants submits that learned tribunal committed error in exonerating the respondent No. 3. It is submitted that burden to prove that policy was cancelled by respondent No. 3 was on respondent No. 3 and to discharge the burden, respondent No. 3 has filed document Ex.D/1 to D/4 which are nothing but photostate copy of the letter alleged to have been issued to concerned RTO and respondent No. 2 and the receipts. It is submitted that originals were not produced by respondent No. 3 before the learned tribunal and also before this Court in spite of giving time to file the same for the best reasons known to the respondent No. 3. Learned counsel further submits that Ex.D/2 which is photocopy of the acknowledgment does not bear the signature of respondent No. 2. It is submitted that in the facts and circumstances of the case, learned tribunal committed error in exonerating the respondent No. 3. 7. Learned counsel for respondent No. 3 submits that respondent No. 3 has examined Harish Kumar, Asstt. Administrative Officer of respondent No. 3 company who has stated on oath that letter of cancellation of policy was sent to respondent No. 2 by Ex. D/l of which acknowledgment is Ex.D/2 and letter sent to concerned RTO is Ex.D/3 while its acknowledgment is Ex.D/4. It is submitted that before the learned tribunal, no objection was raised by the appellant while the documents were exhibited. It is submitted that once the document is exhibited, then no objection can be raised by the appellant regarding admissibility of the document at this stage. Reliance was placed on a decision of Hon. Apex Court in the matter of Daddappaa vs. Branch Manager, National Insurance Co. It is submitted that once the document is exhibited, then no objection can be raised by the appellant regarding admissibility of the document at this stage. Reliance was placed on a decision of Hon. Apex Court in the matter of Daddappaa vs. Branch Manager, National Insurance Co. Ltd., 2008 ACJ 581 wherein cheque issued towards premium was dishonoured and Insurance Company cancelled the policy of which information was communicated to the insured and intimation was also given to the RTO and postal acknowledgment was produced before Tribunal to prove cancellation, the Hon'ble Apex Court held that Insurance Company is not liable for payment of compensation, however in exercise of extraordinary jurisdiction under Article 142 of the Constitution directed the Insurance Company to pay the amount of compensation awarded and recover the same from owner of the vehicle. 8. Reliance was also placed on Division Bench judgment of this Court in the matter of National Insurance Co. Ltd. vs. Khelli Bai, 2006 ACJ1160 wherein cheque was dishonoured and policy was cancelled, the Insurance Company denied its liability on the ground that cheque issued towards premium was dishonoured and the policy was cancelled after giving information to the insured by registered post prior to the date of accident, it was held that Insurance Company is not liable. 9. From perusal of record, it appears that respondent Nos. 1 and 2 were ex parte before the learned tribunal and are also not present before this Court. The document Ex.D/1 whereby intimation of cancellation of policy has been given to respondent No. 2, is photostate copy of the letter. Carbon copy of the letter which was sent to respondent No. 2 has not been filed. Similar is the position of letter Ex. D/4 which was sent to the concerned RTO. Ex. D/2 does not bear the signature of the person who has received the registered letter. At the time of exhibiting the documents Ex.D/1 to D/4, the originals were not produced before the learned tribunal. Similar is the position of letter Ex. D/4 which was sent to the concerned RTO. Ex. D/2 does not bear the signature of the person who has received the registered letter. At the time of exhibiting the documents Ex.D/1 to D/4, the originals were not produced before the learned tribunal. It is true that at the time of exhibiting the documents, no objection has been raised by the appellant but only because no objection has been raised by the appellant, a photocopy of the document cannot be allowed to be admissible In evidence especially in the circumstances that in spite of giving opportunity by this Court, respondent No. 3 failed to place on record the originals of Ex.D/1 to D/4. However, the fact remains that cheque whereby premium was paid was dishonoured and respondent No. 2 conveniently avoided to appear before the learned tribunal and also before this Court, in the facts and circumstances of the case, keeping in view the law laid down by the Hon'ble Apex Court, the appeal filed by appellants are allowed and impugned award is modified to the extent that respondent No. 3 shall pay the awarded amount to the appellants in both the appeals and shall have an option to recover the same from respondent No. 2 by initiating execution proceedings before the learned tribunal. In case respondent No. 3 initiates the execution proceedings for recovery of the amount paid to the appellants, respondent No. 2 shall have an opportunity to demonstrate that premium was paid by him. 10. With the aforesaid modification, both the appeals stand disposed of. No order as to costs. Order accordingly.