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Himachal Pradesh High Court · body

2009 DIGILAW 1250 (HP)

SWARAN SINGH v. NATIONAL INSURANCE CO. LTD.

2009-12-09

DEV DARSHAN SUD

body2009
JUDGMENT Dev Darshan Sud J.(Oral)- This appeal has been instituted by the owner of the vehicle against the award made by the Motor Accident Claims Tribunal (I), Kangra at Dharamshala on 14.3.2005 in a petition instituted by the widow, minor son and mother of deceased-Nek Chand. 2. On 18th March, 1997, a sum of Rs.2,88,000/- was awarded to the respondents-claimants by the learned Motor Accident Claims Tribunal FAO (MVA) No. 300 of 1997 titled as National Insurance Company Ltd. Vs. Chanchla Devi and others was preferred in the Court challenging the award. This appeal was decided on 29th September, 2004. This court held as under: “There cannot be any dispute to the settled proposition of law that unless the Insurer has realized the premium, the contract of insurance does not come into existence. In the face of the assertion by the appellant that the cheque had bounced, the onus undoubtedly would be upon the respondents 1 and 2 to prove that the premium indeed was paid and that it had been received by the appellant. I do not wish to enter into any controversy with respect to the truthfulness or otherwise of the aforesaid facts but the aforesaid narration does lead to one irresistible conclusion and that is that the appellant was totally cought unaware and perhaps respondents No. 1 and 2 deliberately and purposely did that to defeat the interests of the appellant in the claims Tribunal and I have no hesitation in saying that for unexplained reasons and apparently without any instructions from his client, learned counsel for the appellant also in hot haste made a statement closing the evidence of his client, all this happening in the course of just one day, thereby causing a grave prejudice to the interests of the appellant. Whether on the date of the accident the vehicle in question was insured with the appellant or it was not insured undoubtedly was/is a disputed question of fact and this question had to be adjudicated upon and resolved through proper evidence but apparently, this was resolved in a manner not appropriately worth or approval in law. Whether on the date of the accident the vehicle in question was insured with the appellant or it was not insured undoubtedly was/is a disputed question of fact and this question had to be adjudicated upon and resolved through proper evidence but apparently, this was resolved in a manner not appropriately worth or approval in law. I have no hesitation in saying that the parties concerned associated with the passing of the order dated 17th March, 1997 perhaps did not conduct themselves properly because the principles of natural justice and the norms of fair play linked with observance of proper procedure were thrown to winds and it is only on account of this that a document which from its very inception was highly disputed was not only allowed to be brought on record but reliance was sought and placed upon it for fastening liability upon the appellant which it had been contesting right from the beginning of the trial before the Tribunal. For the aforesaid reasons, therefore, I have no hesitation in not only allowing CMP No. 600 of 1997 but also the appeal itself and setting aside the impugned judgment and award in this appeal to the extent of its fastening the liability upon the appellant to pay the award amount. After thus setting aside the impugned award to the aforesaid extent, I remand the matter to the Tribunal for its fresh consideration on the aforesaid disputed question relating to the insurance of the vehicle in question with the appellant as on the date of the accident, in the light of the aforesaid observations” 3. The case was again taken up for hearing by the learned Tribunal on this issue. The basic point for determination is whether there was a valid contract existing between the appellant and the Insurance Company. After remand, Sh. Swaran Singh appeared as his own witness as RW-1 stating that he was the owner of truck No. JKR 685 which was insured by the respondent-Insurance Company at Pathankot on 27.3.1995. The copy of the insurance cover note Ext. R-1/A was proved by him. He stated in his evidence that he had paid the insurance premium in cash to the Development Officer, who in turn had deposited this money with the Authorized Officer and then signed the cover note acknowledging the receipt of the premium. He has denied making any payment by cheque. R-1/A was proved by him. He stated in his evidence that he had paid the insurance premium in cash to the Development Officer, who in turn had deposited this money with the Authorized Officer and then signed the cover note acknowledging the receipt of the premium. He has denied making any payment by cheque. When considered with the testimony of RW-2 Mukesh Sharma, the evidence of RW1 cannot be accepted. Though, he admits that Ext.R-1/A has been written by him and signed by Sh. B.K.Gupta, Administrative Officer. In Ext.R-1/B he states that the insurance premium was paid in cash. He admits that his services have been terminated. Further, his cross-examination is revealing, he states: “Yeh Theek Hay Ki Uprokat Insurance bara pratibadi No.1 ney mujhe cheque duara payment ki thee Jo ki Bank duara dishonour ho gaya thaa. Yeh cheque manay Company kay pass jama karwa diya thaa. Yey thik hay ki cheque dishonour honay kay karan Company nay uprokat truck ki policy cancel kar dee thee. Yeh galat hai ki manay 5145/- rupay Swaran Singh say koy cash na liya nahi hi koi company ko cash jama karway. Yeh bhi galat hai ki party say milkar maine yeh raseed jhuthi banwai hay. Yeh theek hay ki is raseed ka hawala maine cover note ki office copy maine na diya hai.” 4. The very foundation of the evidence led by the appellant is destroyed by this witness. It is established beyond doubt that the Insurance Policy was cancelled because the cheque for the premium was dishonoured. This witness also admits that receipt of premium was not noted or recorded in the office copy. There is also no evidence of any record with the Insurance Company regarding acknowledging or accepting receipt of premium in their record. 5. It is strange that no valid official receipt acknowledging payment in cash was issued to the appellant after the cheque, by which he had made the payment, was dishonoured. I cannot persuade myself to hold that the learned Claims Tribunal has erred in holding that the story regarding the payment of premium can be accepted. In these circumstances, I hold that the appellant has not been able to prove on record that there has been a valid insurance contract between the parties. 6. No other point was urged before me. 7. Thus, there is no merit in this appeal which is accordingly dismissed. In these circumstances, I hold that the appellant has not been able to prove on record that there has been a valid insurance contract between the parties. 6. No other point was urged before me. 7. Thus, there is no merit in this appeal which is accordingly dismissed. There shall be no order as to costs.