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2015 DIGILAW 107 (UTT)

Oriental Insurance Co. Ltd. v. Asha

2015-03-03

SERVESH KUMAR GUPTA

body2015
Judgment Servesh Kumar Gupta, J. 1. Having heard the matter, as submitted by learned Senior Counsel on behalf of the appellant as well as by learned counsel for the claimants/respondent nos.1 to 4, it is worth mentioning that the truck owner/respondent no.5 Airaan did not appear despite sufficient service in the Tribunal and even, he did not respond to the notice issued by this Court, nonetheless he was absenting from his house and the notice was pasted at his door. So, while hearing this appeal also, service upon respondent no.5- Airaan is deemed sufficient. 2. The background of controversy between the parties is that the deceased, a bank manager, while travelling on his scooter, was dashed by Truck No.HR38-E-2939, owned by Mr. Airaan. He lost his life. The award to the tune of Rs.21.52 lakh was accorded against the appellant, which is said to be the insurer of the offending truck. 3. The insurance cover note was issued by the authorized agent of appellant viz. Sri Ram Finance Company with effect from 27.3.2007 to 26.3.2008. The accident occurred on 16.7.2007 and thus, the date of accident is well covered within the period of policy. The award is being agitated by the insurance company on the ground that a cumulative cheque worth Rs.2.00 crores, issued by the business agent Sri Ram Finance Company to the appellant-Oriental Insurance Company, bearing date 31.3.2007, was dishonoured by the bank on 10.5.2007. The impugned cover note was for the premium of Rs.15,583/- while the cumulative cheque issued in favour of appellant dated 31.3.2007 was entailing as many as 1653 cover notes, including the one issued to Mr. Airaan. 4. When such cumulative cheque issued by Sri Ram Finance Company was dishonoured by the bank concerned, then its intimation was sent by the appellant-insurance company on 10.5.2007 to its business agent as well as to the owner Mr. Airaan through registered post besides e-mail and other means, informing them that the policy cover note bearing number 577936 issued to Mr. Airaan stood cancelled. 5. The accident occurred almost after more than two months subsequent to sending such intimation. 6. The Court is of the view that undoubtedly, the insurance company is liable for all act or acts done by its agent, as has been held out by the Apex Court in the case laws so relied by the Tribunal. Airaan stood cancelled. 5. The accident occurred almost after more than two months subsequent to sending such intimation. 6. The Court is of the view that undoubtedly, the insurance company is liable for all act or acts done by its agent, as has been held out by the Apex Court in the case laws so relied by the Tribunal. But when the insurance company had sent informantion almost nine weeks earlier than the date of accident, not only to its agent but also to the insured about the cancellation of policy on account of non-payment of the premium or dishonour of the cumulative cheque, as aforementioned, then there was no propriety to hold the insurance company liable for the payment of award. 7. Learned counsel for the claimants has argued that even the General Manager of the Insurance Company was not sure whether the intimation sent by appellant on 10.5.2007 had been received by Mr. Airaan or not. This contention is wholly untenable for the reason that once the post is dispatched through registered means in the post office, a presumption is always drawn that the same shall be deemed to have been received by the addressee, until and unless rebutted. The Manager of the Insurance Company has proved on oath that intimation through registered post was sent to Mr. Airaan on 10.5.2007, copy whereof has also been annexed in the record of the trial Court. 8. That apart, the intimation was also sent to Sri Ram Finance Company which was the business agent of the appellant. Now, the burden was upon the insured Mr. Airaan to come forward or to approach either the business agent or Oriental Insurance Company or the Trial Court or even this Court, in order to show that he had paid the premium worth Rs.15,583/-, either by cash or by cheque or by any other means, to the authorized business agent of the appellant, but he failed to do so even being sufficiently served every time. 9. Thus, in view of what has been stated hereinabove, the Court finds that the impugned award as against the appellant- Oriental Insurance Company is not sustainable. It is hereby set aside qua the appellant and at the same time, the liability is shifted upon respondent no.5- Airaan, the owner of offending Truck, to satisfy the amount of award. 10. 9. Thus, in view of what has been stated hereinabove, the Court finds that the impugned award as against the appellant- Oriental Insurance Company is not sustainable. It is hereby set aside qua the appellant and at the same time, the liability is shifted upon respondent no.5- Airaan, the owner of offending Truck, to satisfy the amount of award. 10. The money deposited by the appellant-insurance company shall be returned to it along with the interest accrued thereon, till date. For the money which has been paid to the claimants in compliance of the orders of this Court, the appellant will be at liberty to recover the same from the owner of the vehicle, upon whom the liability has been shifted. 11. As regards the cross objection (CLMA 4493/2012), which has been filed by the claimants, it is pertinent to note that the same has been filed on 11.5.2012 with the delay of 748 days against the award passed on 7.8.2009; even such objection was filed after more than two years of receiving the amount, as directed by this Court. The Court finds that the delay has not been explained convincingly. So, the delay condonation application (CLMA 4492/2012) is rejected. Consequently, the cross objection is also rejected. 12. The appeal stands disposed of in the above terms. 13. Let the LCR be returned along with a copy of this order for compliance.