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2012 DIGILAW 17 (CHH)

Firoz Mohammed v. Fulbasia

2012-01-10

GULAM MINHAJUDDIN

body2012
JUDGMENT : Minhajuddin, J. This appeal has been filed by the appellant owner u/s 173 of the Motor Vehicles Act, 1988, against the award dated 6.2.2003 passed by Second Additional Motor Accidents Claims Tribunal (FTC), Surajpur (in short 'the Tribunal') in Claim Case No. 39 of 2002, exonerating the insurance company, respondent No. 2, from its liability and fastening liability upon the appellant owner to pay the amount of compensation to the claimant-respondent No. 1. Brief facts of the case, as per averments made in the claim petition, are that on 31.12.1999 while Gajadhar Singh was going to village Laxmipur, the appellant owner by driving motor cycle Yamaha bearing registration No. MP 27-D 0409 in a rash and negligent manner, dashed Gajadhar Singh, as a result of which Gajadhar sustained grievous injuries and succumbed to the same. At the time of accident, the deceased was 60 years of age and was earning Rs. 2,000 per month from agricultural work. Therefore, the claimant, widow of the deceased, being his legal heir, filed a claim petition u/s 166 of the Motor Vehicles Act, 1988 for a total compensation of Rs. 5,20,000 against the death of Gajadhar Singh under various heads. 2. However, the learned Tribunal, after hearing counsel for the respective parties and after close scrutiny of the evidence led before it, by the impugned award granted a total compensation of Rs. 2,07,000 in favour of claimant-respondent No. 1 fastening the liability to pay compensation upon the appellant owner and exonerating insurance company, respondent No. 2. 3. Heard the learned counsel for the respective parties, perused the LCR as also the impugned award. 4. Contention of the learned counsel for the appellant owner is that the insurance company has been wrongly exonerated from its liability because after receiving the payment of the premium amount, that the cover note No. 128 dated 20.11.1999 was issued in favour of the appellant as the Development Officer of the insurance company, respondent No. 2, B.L. Khes, was authorised to issue the cover note, there was no reason for the appellant owner to suspect about his competency and the fact that the power of issuing cover notes of B.L. Khes, Development Officer, was withdrawn on 18.5.1992, was not within the knowledge of the appellant owner. As such, insurance company, respondent No. 2, cannot avoid its liability as it is vicariously liable for the acts of its officers. As such, insurance company, respondent No. 2, cannot avoid its liability as it is vicariously liable for the acts of its officers. 5. On the other hand, learned counsel for insurance company, respondent No. 2, has contended that the alleged cover note No. 128 dated 20.11.1999 was neither issued from the office of insurance company, respondent No. 2, nor it is in the prescribed format. He has further contended that the premium amount has also not been received by the insurance company and as such, the insurance company has been rightly exonerated from its liability by the Claims Tribunal. 6. Learned counsel for the claimant-respondent No. 1, supporting the contention of the appellant owner, has contended that insurance company, respondent No. 2, has been wrongly exonerated from its liability and the liability ought to have been fastened upon the insurance company. 7. It is not in dispute that B.L. Khes was the Development Officer of insurance company, respondent No. 2, and as such, was competent and authorised to issue cover notes. Photocopy of the cover note No. 128 dated 20.11.1999 has been filed by the appellant owner, which has been marked as Exh. NA-16. From perusal of the same, it is clear that period of insurance was from 20.11.1999 to 19.11.2000. The date of accident is 31.12.1999 and as such, the date of accident comes within coverage period of the cover note No. 128 dated 20.11.1999. 8. According to the learned counsel for insurance company, respondent No. 2, the power to issue cover notes of B.L. Khes, Development Officer, was withdrawn long before the date of issuance of cover note No. 128 dated 20.11.1999, on 18.5.1992 and he was placed under suspension w.e.f. 2.12.1999. From perusal of the documents available on record, it is clear that though four public notices, Exhs. NA-5 to NA-8, were got published in the daily newspapers by insurance company, respondent No. 2, for information to the general public that B.L. Khes, Development Officer of insurance company, respondent No. 2, has been put under suspension w.e.f. 2.12.1999, but all these public notices have been got published in the newspaper subsequent to the date of issuance of the cover note No. 128 dated 20.11.1999. Further, as per the document available on record, it is clear that the power to issue cover notes of B.L. Khes, Development Officer, was withdrawn on 18.5.1992, however, this fact was not made known to the general public. 9. On the date when insurance company, respondent No. 2, adduced evidence before the Tribunal, B.L. Khes, Development Officer, although under suspension, was, at that time, in the employment of insurance company, respondent No. 2, who was the best witness to depose whether the said cover note No. 128 dated 20.11.1999 was issued by him or not, but insurance company, respondent No. 2, did not care to examine him. It is unbelievable that the cover note is issued without receiving the premium amount. There is no prohibition in paying the premium amount in cash to the authorised officer and to get a cover note issued. As such, the contention of the insurance company, respondent No. 2, that it has not received any premium amount is not acceptable. Whether B.L. Khes, Development Officer, was authorised on 20.11.1999 to issue cover note or not, is a matter between the insurance company and its officer, and the appellant owner cannot be made to suffer on account of the act of the officers of insurance company, respondent No. 2. 10. In view of the aforesaid discussion, I am of the opinion that the insurance company, respondent No. 2, is jointly and severally liable to pay the amount of compensation to claimant-respondent No. 1 and has been wrongly exonerated from its liability by the Tribunal. 11. In the result, the appeal is allowed and the impugned award dated 6.2.2003 of the Claims Tribunal, so far as it relates to exonerating the insurance company from its liability, is hereby set aside. It is held that insurance company, respondent No. 2, along with the appellant owner is, jointly and severally, liable to pay compensation to claimant-respondent No. 1. The amount deposited by appellant owner shall be allowed to be withdrawn by him and if the same has been disbursed to the claimant, then the appellant owner shall be entitled to recover it from insurance company, respondent No. 2. No order as to costs.