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2009 DIGILAW 81 (JK)

Oriental Insurance Co. Ltd. v. Veena Devi

2009-02-25

MANSOOR AHMAD MIR

body2009
1. This Civil Ist Miscellaneous Appeal is directed against award dated 16.02.2005 passed by the Motor Accidents Claims Tribunal, Kathua in Claim Petition no. 16 titled Veena Devi & others versus Avtar Singh & others, where-under an amount of Rs.2,99,000/-with 6% interest per annum came to be awarded in favour of the claimants/respondent nos. 1 to 4 on the grounds taken in the memo of appeal. 2. The short controversy involved in this appeal is, whether the appellant came to be rightly saddled with a liability or otherwise. In order to return finding, it is necessary to give brief resume of the case hereunder. 3. Claimants/respondent nos. 1 to 4 filed a claim petition before the Motor Accidents Claims Tribunal, Kathua. Appellant and other respondents appeared and the following issues came to be framed: 1.Whether on 30.11.1996, the respondent no.1 who has working under the employment of respondent no.2 knocked down Rajinder Singh while driving bus bearing registration no. DL-IP-0979 rashly and neg- ligently as a result of which the said Rajinder Singh sustained multiple injuries and died instantaneously? OPP 2. In case issue no.1 is proved whether petitioners are entitled to receive compensation, if so to what extent and from whom? OPP 3. Whether respondent no.1 was holding invalid driving license on the relevant date of accident? OPR3 4. Relief." 4. Claimants have examined the witnesses and appellant-insurer has also examined two witnesses namely M. Parhaker Rao, Clerk of Andhra Bank, Ghaziabad, (U.P) and Ishwar Singh, Assistant Manager, Appellant-Insurance Company. Both the witnesses have deposed that the cheque, relating to pre- mium, came to be bounced and for want of ˜insufficient funds™. Both the witnesses have said nothing about the Driving License of the driver of the offending vehicle. 5. Learned counsel for the appellant-insurer has not disputed the finding returned by the Tribunal vis-a-vis issue nos. 1 & 3. He confined his arguments viz bouncing of the cheque, which had been issued in favour of the appellant-insurer as premium. Appellant-Insurance Company deposited this cheque for clearance, which was returned with the memo that the sufficient amount was not in the account of the drawer, the cheque was dishonoured and thereafter the Insurance Company cancelled the insurance policy and made an endorse- ment thereupon. Appellant-Insurance Company deposited this cheque for clearance, which was returned with the memo that the sufficient amount was not in the account of the drawer, the cheque was dishonoured and thereafter the Insurance Company cancelled the insurance policy and made an endorse- ment thereupon. Learned counsel also argued that insurer has proved the fact of bouncing of cheque and issuing notice/information to insurer-owner and that letter/memo of information came to be produced and exhibited as EXPW- IS. 6. In the given circumstances, there is no need to discuss the finding returned by the Tribunal vis-a-vis issue nos. 1 & 3. Insurer-appellant has proved that the insurance policy came to be cancelled because the premium which was paid by way of cheque came to be bounced for want of ˜insufficient funds™. Tribunal has recorded the finding to that extent, but saddled the insurer-appel- lant with the liability without giving the right of recovery. No doubt the claimants/respondent nos. 1 to 4 are falling within the definition of third party and their rights are to be safe-guarded in order to achieve the object of granting compensation, but at the same time the rights of the insurer are also to be protected by giving right of recovery. 7. Keeping in view the provisions of Sections 147 & 149 of the Motor Vehicles Act, it was for the owner-insured to prove that he has not committed any willful default. The Apex Court in case titled Deddappa & others versus Branch Manager, National Insurance Company Limited, reported as (2008) 2 Supreme Court Cases, 595 has held as under - 20. A contract is based on reciprocal promise. Reciprocal promises by the parties are condition precedents for a valid contract. A contract furthermore must be for consideration. 24. We are not oblivious of the distinction between the statutory liability of the insurance company vis-a-vis a third party in the context of Sections 147 and 149 of the Act and its liabilities in other cases. But the same liabilities arising under a contract of insurance would have to be met if the contract is valid. If the contract of insurance has been cancelled and all concerned have been intimated thereabout, we are of the opin- ion, the insurance company would not be liable to satisfy the claim." 8. But the same liabilities arising under a contract of insurance would have to be met if the contract is valid. If the contract of insurance has been cancelled and all concerned have been intimated thereabout, we are of the opin- ion, the insurance company would not be liable to satisfy the claim." 8. In the given circumstances, I deem it proper to direct the insurance company to satisfy the award and recover the same from the insured-owner. 9. Accordingly, appeal is allowed and impugned award is modified. Appeal along with all CMPs disposed of.