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2010 DIGILAW 659 (JK)

Oriental Insurance Co. Ltd. v. Mohd. Akbar Ganai

2010-12-31

Mansoor Ahmad Mir

body2010
1. Appellants have invoked the jurisdiction of this court in terms of Section 173 of Motor Vehicles Act, hereinafter for short as Act for setting aside the Award-judgment dated 27th of February, 2007 passed by Motor Accidents Claims Tribunal, Pulwama in a claim petition titled Mohammad Akbar Ganie and anr. v. Raghbir Singh and others, hereinafter for short as `impugned award', on the grounds taken in the memo of appeal. 2. Learned counsel for the appellant argued that the insurer came to be saddled with liability illegally and without any justification, because, cheque for the amount of premium was bounced and Insurance Policy was cancelled. He has not questioned the award on any other ground. Thus precisely the attack to the impugned award is on the ground of liability while keeping in view the effect of bouncing of cheque. BRIEF FACTS 3. Bilal Ahmad Ganie became victim of vehicular accident on 22nd of September, 1999 at village Kasbayar, the offending vehicle was being driven by driver rashly and negligently, hit electric pole which fell on the back of Bilal Ahmad who sustained injuries and succumbed to the injuries. The victim was student of 8th Class, was brilliant, hailing from a backward area and had to become a doctor. Claimants had claimed compensation to the tune of Rs. 4.24 lacs as per the breakup given in the claim petition. The driver and owner have not caused appearance before the Tribunal. Only insurer-appellant contested the claim and following issues came to be framed: 1. "Whether on 22.09.1999 a speedy truck bearing registration No. JK02-7525 driven by respondent No.1 in a rash and negligent manner, on reaching village Qasbayar, struck with an electric pole standing by the side of the road. Consequently the electric pole fell down on the back of the deceased Bilal Ahmad Ganie, causing extensive injuries to him resulting in his death? OPP 2. In case issue No.1 is proved in affirmative, whether the petitioners herein are entitled to compensation under the provisions of Motor Vehicles Act? If so, how much and from whom? OPP 3. Whether the Insurance company, respondent No.2, is not liable to pay the compensation. If so why and how? OPR-2 4. Relief." 4. Claimants have examined witnesses namely Abdul Rehman Dar, Abdullah Ganie, Dr. Mohammad Ishaq Naikoo, Abdul Salam Head Constable, and Mohammad Akbar Ganie, petitioner. Insurer-Appellant has examined Balvinder Singh. If so, how much and from whom? OPP 3. Whether the Insurance company, respondent No.2, is not liable to pay the compensation. If so why and how? OPR-2 4. Relief." 4. Claimants have examined witnesses namely Abdul Rehman Dar, Abdullah Ganie, Dr. Mohammad Ishaq Naikoo, Abdul Salam Head Constable, and Mohammad Akbar Ganie, petitioner. Insurer-Appellant has examined Balvinder Singh. All the witnesses have deposed that driver has driven the offending vehicle (truck) bearing Registration No. JK02D-7525 rashly and negligently and hit an electric pole which fell on the back side of the deceased Bilal Ahmad who sustained serious injuries and succumbed to the injuries. As discussed hereinabove, the appellant has not questioned the finding returned by the Tribunal while deciding Issue No.1 and 2. 5. Admittedly the vehicle was insured on 29th of September, 1999. At that relevant point of time the insurer-appellant has not issued any notice to insured about the bouncing of cheque and cancellation of the Insurance Policy. It appears that insurer has placed on trial court record copies of Memo of Bank and the letter issued by the Branch Manager to the owner. In terms of said letter insured was informed about the bouncing of cheque on 20th of October, 1999. 6. It appears that the notice came to be issued after noticing the claim of claimants about the compensation. The appellant has not placed on record copy/ proof to show that notice was served upon the insured. The insurer has not placed the original documents on the record. The notice issued was not in accordance with law. It was for the insurer to inform the claimants on the same date when the cheque bounced, may be the insured would have made the payment of the premium on the same date, but came to be informed, as discussed hereinabove, after one month from the date of accident. Thus the Insurance Policy was valid on the date of accident. The Apex Court in case titled New India Insurance Co. Ltd. v. RULA and others reported as SCC 2000 (3) Page 195 Para 13 as under:- "This decision, which is a three-Judge Bench decision, squarely covers the present case also. Thus the Insurance Policy was valid on the date of accident. The Apex Court in case titled New India Insurance Co. Ltd. v. RULA and others reported as SCC 2000 (3) Page 195 Para 13 as under:- "This decision, which is a three-Judge Bench decision, squarely covers the present case also. The subsequent cancellation of the insurance policy in the instant case on the ground that the cheque through which premium was paid was dishonoured, would not affect the rights of the third party which had accrued on the issuance of the policy on the date on which the accident took place. If, on the date of accident, there was a policy of insurance in respect of the vehicle in question, the third party would have a claim against the Insurance Company and the owner of the vehicle would have to be indemnified in respect of the claim of that party. Subsequently cancellation of the insurance policy on the ground of non-payment of premium would not affect the rights already accrued in favour of the third party." 7. Viewed thus the insured has not committed any breach, insurer was to be saddled with liability and came to be rightly saddled as such. 8. In the given circumstances findings recorded on issue Nos 1, 2 and 3 are upheld. 9. The appeal is, accordingly, dismissed.