Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 58 (CHH)

K. Saraswati v. Arif Tamsil

2013-02-08

PRITINKER DIWAKER

body2013
ORDER 1. Present claimants appeal has been filed challenging the award dated 29.04.2006 passed by Motor Accident Claims Tribunal, Durg in Claim Case No. 164/2005 allowing the claim of the claimants to the extent of Rs. 8,23,000 on account of the death of K. Shrikant Rao. 2. Brief facts of the case are that on 17.10.2002 when deceased K. Shrikant Rao was riding his Luna bearing registration No. MP 24D-0831 and was coming towards Charoda, he was hit from behind by Matador bearing registration no. MP-26 D 3538 and sustained grievous injury leading to his death in Sector-9 hospital Bhilai. Appellants/claimants put forth their claim before the Tribunal being the LRs. of the deceased K. Shrikant Rao to the tune of Rs. 27,86,000 but after considering all aspects of the case the Tribunal awarded Rs. 8,23,000 in favour of the claimants/appellants. Though claim of the appellants has been accepted by the Tribunal, Insurance Company/respondent No.2 has been exonerated of its liability on the ground that the vehicle was not duly insured on the date of incident i.e. 17.10.2002 and there was no privity of contract between the insured and the insurer. 3. In the present appeal though the appellants have also prayed for enhancement of the compensation amount, main thrust is on the point where Insurance Company has been exonerated. 4. Counsel for the appellants submits that the Tribunal has erred in law in exonerating the Insurance Company of its liability. He submits that on 4.12.2001 the cheque was issued by the respondent No.1 namely Arif Tamsil the owner of the offending vehicle to get his vehicle insured and accordingly cover note Ex. D-1 was issued on that day itself covering the risk from 4.12.2001 till 2.12.2002 and the accident occurred on 17.10.2002 i.e. within the period when the vehicle of respondent No.1 was duly insured. He submits that intimation of dishonour of cheque was never given to respondent No.1 as required under the law and furthermore the intimation was also not given to the R.T.O. Which is mandatory under the law. He submits that had intimation been given to respondent No.1 Arif Tamsil regarding cheque being bounced in the natural course respondent No.1 would have insured its vehicle. He placed his reliance on the decisions of the Supreme Court in the matter of Oriental Insurance Company Vs. He submits that had intimation been given to respondent No.1 Arif Tamsil regarding cheque being bounced in the natural course respondent No.1 would have insured its vehicle. He placed his reliance on the decisions of the Supreme Court in the matter of Oriental Insurance Company Vs. Indrajeet Kaur, AIR 1988 SCW 183 in the matter of New India Assurance Company Vs. Rula, AIR 2000 SCW 788 and in the matter of United India Insurance Company Vs. Laxmappa and Others, 2012(5) SCC 234 . 5. Supporting the impugned award it has been submitted by Shri Abhishek Sinha appearing for respondent No.2 that after receiving cheque dated 4.12.2001, cover note Ex.D-1 was issued on the same date and no insurance policy was followed by the cover note. He submits that as per Rule 142 of Central Motor Vehicle Rules 1989 the validity of cover note is for 60 days and if during or after this period no valid insurance policy is issued in favour of the insured, it would be deemed that there is no valid insurance policy in favour of the insured. He submits that in the present case cheque was issued on 04.12.2001 and when it was presented before the bank same got dishonoured and intimation to this effect was also sent to the insurance company vide Ex.D-4 dated 12.12.2001. He submits that after receiving information regarding dishonour of cheque on 02.01.2002 letter Ex.D-5 was despatched by the Insurance Company on 09.01.2002 on the given address of respondent No.1 categorically informing him that cheque issued by him got dishonoured. He submits that the said letter was sent through courier which was duly received by respondent No.1 on 09.01.2002 itself vide Ex.D-7. He argued that despatch register Ex.D-6C of the insurance company has also been duly proved by the insurance company and cancelled policy dated 31.12.2001 is also on record vide Ex.D-8. From the record it appears that twice Ex.D-8 has been marked by the Court inadvertently-one is cancelled policy dated 31.12.2001 and the other is computerized chart of the account of respondent No.1-Arif Tamsil confirming the fact that cheque was bounced. He referred to the provisions of Section 64 V of the Insurance Act 1938 relating to no risk to be assumed unless premium is received in advance. 6. First point to be decided by this Court is the quantum of compensation to be awarded in favour of the claimant. He referred to the provisions of Section 64 V of the Insurance Act 1938 relating to no risk to be assumed unless premium is received in advance. 6. First point to be decided by this Court is the quantum of compensation to be awarded in favour of the claimant. Learned counsel for the appellant has not seriously stressed his claim for enhancement of compensation which even otherwise appears to be just and proper and therefore this Court is not inclined to enhance the same as the Tribunal has awarded the same after due consideration of the material available on record. 7. As regards the second point argued vehemently, it is apparent from the record that on 04.12.2001 a cheque Ex.D-3 was issued by respondent No.1 on the date on which cover note Ex.D-1 was issued. Cheque issued by respondent No.1 was presented before the bank by respondent No.2 and intimation was given by respondent No.2 on 12.12.2001 vide Ex.D-4 intimating that the cheque was bounced. Letter dated 2.1.2002 despatched on 9.01.2002 is also on record as Ex.D-5 addressed to respondent No.1 Arif Tamsil informing that cheque was dishonoured and therefore the insurance policy stood cancelled as insured due to non-receipt of consideration. This letter was duly received by respondent No.1 vide Ex.D-7 which is acknowledgment of Dolphin courier services. Further insurance company has tiled and proved Ex.D-6C, a copy of the despatch register showing that at serial No. 1272 a letter was issued to respondent No.1 on 09.01.2002. That apart, on 31.12.2001 vide Ex.D-8, a cancelled policy was also issued by the insurance company. As per rule 142 of Central Motor Vehicles Rules, life of cover note is 60 days and before expiry of the said period, if policy is not issued, it would be deemed that there is no valid policy in favour of the insured. 8. In the present case, the accident occurred on 17.10.2002 whereas much prior to that on or around 09.01.2002 insurance company had informed respondent No.1 about dishonour of the cheque by issuing the cancelled policy on 31.12.2001. 9. Insurance company has also examined Narendra Kumar Sangwar as witness No.1 of NAW -2 who has also categorically stated giving the details of canceling the policy and intimating the respondent No.1 regarding dishonour of the cheque. 9. Insurance company has also examined Narendra Kumar Sangwar as witness No.1 of NAW -2 who has also categorically stated giving the details of canceling the policy and intimating the respondent No.1 regarding dishonour of the cheque. Law cited by the appellants is of no help to them because in the present case all the legal formalities have been completed by the insurance company like informing the owner regarding dishonour of cheque. 10. In view of the above, this Court of the opinion that the appeal has no substance and the same is liable to be dismissed. It is dismissed as such. 11. At this stage, Shri Tiwari submits that though there is an award in favour of the appellants, they have not received anything and therefore, the Executing Court may be directed to expedite the execution proceedings and to take effective steps for getting the award executed. Needless to state that Executing Court shall take all steps to get the award executed in favour of the claimants as expeditiously as possible. Appeal Dismissed.