JUDGMENT : 1. This appeal is preferred challenging the judgment and award dated 27/07/2011 passed by the Member, Motor Accident Claims Tribunal, Darwah in Claim Petition No. 336/2006. 2. Brief facts of the appeal can be stated, as follows: On 31/10/2005, one Rameshlal was proceeding from Arni to Anjankhed on his Bajaj M-80 motorcycle, bearing no. MH-26-C-6526, by observing the necessary care and precaution and the traffic rules. When he reached Digras Chaufuli near Kamballposh Baba Dargah at about 2:00 p.m. one sawari taxi bearing no. MH-29-2688 coming from opposite direction and driven in a rash and negligent manner, gave dash to his motorcycle. On account of the dash, Rameshlal fell down and sustained grievous injuries and fracture to his right leg and also severe injury to his head. He gave information of the said accident to Arni Police Station and accordingly C.R. No. 193/2005 came to be registered against the taxi driver. After the accident, Rameshlal was moved to V.N.G.M. College and Hospital, Yavatmal. Thereafter he was treated in the hospital of Dr. Dabhere. However his fracture injuries were not completely cured and as a result, he sustained 10% permanent disability, which has resulted into loss of his working and earning capacity. Hence he claimed the amount of Rs.1,50,000/-as compensation from the owner of the taxi, respondent no.2 herein and the appellant, the insurance company of the said taxi. 3. Respondent no.2, did not contest the claim petition, though duly served with the notice of the same. It is the appellant, insurance company, which resisted the claim petition contending inter alia that the cause of the accident was the rash and negligent driving of the injured himself, as he has not taken precaution or the note of the vehicles approaching on the road. It was further submitted that the concerned taxi was not validly insured with the appellant, as the cheque issued towards the premium was dishonoured for want of 'sufficient funds'. This fact was intimated to the owner and also to the R.T.O. Office at Yavatmal by RPAD, thereby canceling the insurance policy. In such situation, appellant insurance company cannot be liable to indemnify the owner of the taxi. The claim petition against the appellant, therefore needs to be dismissed. 4. On these respective pleadings of the parties, the Tribunal framed necessary issues at Exh.26. 5. In such situation, appellant insurance company cannot be liable to indemnify the owner of the taxi. The claim petition against the appellant, therefore needs to be dismissed. 4. On these respective pleadings of the parties, the Tribunal framed necessary issues at Exh.26. 5. As during pendency of the petition before the Tribunal, the injured Rameshlal died on 13/04/2007, the names of his legal heirs brought on record, with permission of the court and they were permitted to proceed with the injury claim. 6. In support of their case, one of the legal heir Deepaklal examined himself and produced the various documentary evidence on record like the copy of FIR (Exh.42), spot panchnama (Exh.43AA), insurance certificate (Exh.45), the prescription issued by Dr. Dabhere (Exh.49) and certificate of disability (Exh.50). As against it, witness Vikas Dadaji Shete was examined on behalf of the appellant-insurance company who proved the dishonoured cheque of the premium (Exh.62) and the letter under which the intimation was given to the owner and the R.T.O. about the cancellation of the insurance policy. 7. In the light of this evidence on record, the Tribunal was pleased to hold that injured has sustained 10% permanent disability and accordingly awarded the compensation of Rs.59,000/-to the legal heirs of the injured. The Tribunal further held the appellant insurance company also liable, jointly and severally, along with the owner of the taxi to pay this amount of compensation. The contention raised before the Tribunal that the legal heirs are not entitled to proceed with the injury claim, was negatived by the Tribunal. 8. This judgment of the Tribunal is challenged in the present appeal by the appellant-insurance company on twofold grounds. In the first place, it is submitted that on account of the dishonour of the cheque of premium, the policy of the insurance was already canceled and intimation thereof was also given to the owner and the R.T.O. Yavatmal. Hence, appellant-insurance company cannot be liable to pay the compensation along with the owner of the offending vehicle. Second ground raised is pertaining to the competency of the legal heirs of the injured to continue and proceed with the claim petition and their entitlement to get the amount of compensation on all the heads, including the heads of pains, suffering etc. Second ground raised is pertaining to the competency of the legal heirs of the injured to continue and proceed with the claim petition and their entitlement to get the amount of compensation on all the heads, including the heads of pains, suffering etc. According to learned counsel for appellant, the Tribunal has failed to properly appreciate and decide these two legal issues involved in the case. 9. Per contra, learned counsel for respondent nos.1(A) to 1(D) has supported the judgment of the Tribunal by pointing out that mere production of intimation letter without the proof of the said letter being received by the owner and the R.T.O. Office, is not sufficient for cancellation of the insurance policy or for absolving the insurance company from liability of payment of compensation to the third party, like the injured in this case. Secondly, it is submitted that even the legal heirs are entitled to proceed with the claim petition, if the injured has died during pendency of the same. 10. In support of their respective contentions, learned counsel for both the parties have relied upon the various judgments of the Hon'ble Apex Court and other High Courts. 11. The first point which therefore arises for my consideration is about the liability of the insurance company, once the cheque of the premium was dishonoured and as a result the insurance policy came to be cancelled. 12. In this respect, appellant-insurance company has led the evidence of its Branch Manager, Shri Vikas Dadaji Shete. He has proved on record the dishonour of the cheque of premium. The dishonoured cheque is produced on record at Exh.62. He has also deposed that the intimation of the dishonour of the cheque was given to the owner of the offending vehicle and also R.T.O. Yavatmal. Copies of those intimation letters are produced on record and the endorsements thereon go to show that they were sent by R.P.A.D. However, acknowledgement receipts of those letters are not produced on record to show that those letters or intimations about the cancellation of policy, on account of dishonor of the cheque, were actually received by respondent no.2, the owner of the taxi and also by R.T.O. Yavatmal. This fact is admitted by witness Vikas Shete also that such acknowledgement receipts are not produced on record. 13. This fact is admitted by witness Vikas Shete also that such acknowledgement receipts are not produced on record. 13. In such situation, the question for consideration is whether such letters can be held to be received by the owner and R.T.O. Yavatmal? Learned counsel for appellant has in this respect relied upon the two judgments of Hon'ble Supreme Court in the cases of Shimla Development Authority Vs Santosh Sharma and another, (1997) 2 Supreme Court Cases 637 and Sunil Kumar Sambhudayal Gupta and others Vs State of Maharashtra, (2010) 13 Supreme Court Cases 657, to submit that when a letter is sent under registered cover, there is presumption of service, as laid down under section 27 of the General Clauses Act, 1897 that it was duly received by the addressee. The burden to rebut the presumption lies on the addressee, challenging the factum of service. It is submitted that in this case, as admittedly the letters were sent to the respondent no.2, owner and R.T.O. Yavatmal by R.P.A.D., then necessary presumption under section 27 of the General Clauses Act, 1897, needs to be drawn that they were duly received by them. Neither respondent no.2 examined himself nor produced any evidence to rebut this presumption, and therefore, according to learned counsel for appellant-insurance company, appellant is liable to be absolved from its liability. 14. Exactly this aspect, whether the insurance company can be held liable, in the absence of proof relating to the receipt of such intimation is considered in the case of National Insurance Co. Ltd. Vs. Bachubhai Chandubhai Vasava and others, 2011 ACJ 163 , wherein the Gujrat High Court was, after taking note of the various earlier decisions, pleased to hold that, “In the absence of evidence produced on record by insurance company to establish that intimation to insured and R.T.O. was received by them, the cancellation of policy cannot come into effect and insurance company cannot be exempted from liability to third party”. The facts of this case were also identical to the present case. In that case also the cheque issued towards premium was dishonoured and insurance company canceled the policy under intimation to owner and R.T.O. concerned. However no evidence was produced by the insurance company to show that the intimation was received by owner and R.T.O. and in such situation it was held that, insurance company cannot be exempted from liability to third party. However no evidence was produced by the insurance company to show that the intimation was received by owner and R.T.O. and in such situation it was held that, insurance company cannot be exempted from liability to third party. It was further held that, “it is an inter-se dispute between insurance company and insured, and therefore liability of the insurance company to third party cannot be absolved merely by way of the cancellation of the policy, especially when no evidence was produced that the said intimation was received by the insured and the R.T.O. concern”. 15. In para no.14 of the judgment, it was further held that, “If the procedure prescribed under section 147 of the Motor Vehicles Act is not followed by the appellant-insurance company and there is no evidence produced on record that intimation to insured and R.T.O. Agra was received by them, then cancellation of policy by letter of insurance cannot come into effect and liability of appellant insurance company continues from the date on which the cheque of premium was accepted by the appellant insurance company. If there is a breach committed by insured because of dishonor of the cheque for premium by bank, then there is inter-se dispute between the insurance company and the insured, third party cannot be involved in such dispute when statutory liability is accepted by the insurance company under section 147(1) of the Motor Vehicles Act. Therefore, this being a beneficial legislation and compulsory insurance under the Motor Vehicles Act by insurance company having accepted the cheque of premium then vehicle has been put on road and due to that if third party has died, insurance company cannot avoid such liability and insurance company would have to pay the compensation”. 16. This decision of Gujrat High Court is based on the decision of the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs Inderjit Kaur and others, 1998 ACJ 123, wherein in para no.9 it was observed that, “The policy of insurance that the insurance company issued was a representation upon which the authorities and third parties were entitled to act. The insurance company was not absolved of its obligations to third parties under the policy because it did not receive the premium. Its remedies in this behalf lay against the insured”. 17. The insurance company was not absolved of its obligations to third parties under the policy because it did not receive the premium. Its remedies in this behalf lay against the insured”. 17. Further in para no.11, the Hon’ble Apex Court was pleased to hold that “It was the insurance company itself who was responsible for its predicament. It had issued the policy of insurance upon receipt only of a cheque towards the premium in contravention of the provisions of section 64-VB of the Insurance Act. The public interest that a policy of insurance serves must, clearly, prevail over the interest of the insurance company”. 18. Learned counsel for respondents have also relied upon the judgment of the Hon’ble Apex Court in the case of New India Assurance Co. Ltd. Vs Rula and others, 2000 ACJ 630. In this reported judgment also, the cheque issued towards the premium was dishonoured and hence, the contention raised by insurance company was that it is no more liable to pay the compensation. An argument was also advanced that policy represents a contract between insurer and insured for consideration of premium and if the premium is not paid, the contract would not be valid as there cannot be any contract without consideration. Moreover, under section 64-VB of the Insurance Act, no risk would be assumed unless premium was received in advance. However both these contentions were rejected by the Hon’ble Apex Court by observing in para no.9 that, “Any contract of insurance under Chapter 11 of the Motor Vehicles Act, 1988 contemplates a third party who is not a signatory or a party to the contract of insurance but is, nevertheless, protected by such contract. The rights of the third party to get indemnified can be exercised only against the insurer of the vehicle. It is thus clear that the third party is not concerned and does not come into the picture at all in the matter of payment of premium. Whether the premium has been paid or not is not concern of the third party who is concerned with the fact that there was a policy issued in respect of the vehicle involved in the accident and it is on the basis of this policy that the claim can be maintained by the third party against the insurer.” 19. Relying upon the judgment in the case of Oriental Insurance Co. Relying upon the judgment in the case of Oriental Insurance Co. Ltd. –Vs Inderjit Kaur and others it was further held in this case that this liability of insurance company exists despite the bar created by section 64-VB of the Insurance Act. 20. Thus, the law relating to the liability of the insurance company, even in case of dishonor of the cheque of the premium and cancellation of the policy, being fairly well settled by the abovesaid decisions of the Hon’ble Apex Court, in the instant case also it has to be held that Tribunal has rightly affixed the joint and several liability on the appellant, to pay compensation to the respondents. 21. This brings me to the second point for consideration which pertains to the maintainability of the claim petition on the death of the insured. Admittedly, the claim petition filed before the Tribunal was a injury claim, which was filed by Rameshlal on account of the permanent disability sustained by him in the accident. It is a matter of record that the accident has taken place on 31/10/2005, the claim petition was filed on 27/11/2006 and it was decided on 27/07/2011. During pendency of the petition on 13/04/2007, injured Rameshlal has died. His legal heirs i.e. respondent nos.1(A) to 1(D) were brought on record, as per the order passed by the Tribunal and thereafter they proceeded with the petition. Respondent no.1(C) who is one of the legal heir of Rameshlal examined himself and on the basis of his evidence, the Tribunal assessed the amount of compensation, considering the permanent disability of the injured to the extent of 10% and proceeded to award compensation of Rs.59,000/-. 22. However, as rightly submitted by learned counsel for appellant, whether such petition could have been continued by the legal heirs, when it was a injury claim petition and if it was permitted to be continued, whether legal heirs will be entitled to get the compensation on all the heads, as awarded by the Tribunal, is the question for consideration. 23. In this respect, the Tribunal has relied upon two judgments, which are also cited in this appeal by learned counsel for respondents. The first is in the case of United India Insurance Co. Ltd. Vs E. Laxma Reddy and others, 2007 ACJ 638 . In the said case also, during pendency of the injury claim petition, the injured has expired. In this respect, the Tribunal has relied upon two judgments, which are also cited in this appeal by learned counsel for respondents. The first is in the case of United India Insurance Co. Ltd. Vs E. Laxma Reddy and others, 2007 ACJ 638 . In the said case also, during pendency of the injury claim petition, the injured has expired. It was continued by his legal heirs. The Tribunal allowed the claim and treated the compensation payable to the deceased as estate to his widow and son. In the appeal, the question was raised whether the claim abates on the basis of death of injured and it was held in para no.9 that, “The liability of the owner of the vehicle and the injurer, to pay compensation for the injuries of a passenger, does not come to an end in case the claimant dies before the claim is settled. Their liability subsists and legal representatives of the claimant would step into the shoes of claimant. The liability would not be towards legal representatives, on account of the accident itself. The entitlement of the legal representatives would be confined to the amount, which the deceased claimant could have recovered, had he been alive.” It was further held that, “No exception, therefore can be taken for the approach of the Tribunal, which treated the said amount as the estate of respondent nos.2 and 3. If not estate, it least connotes the entitlement of the respondent nos.2 and 3 to receive the compensation that was payable on account of the injuries to the deceased respondent no.1.” 24. Learned counsel for respondent nos.1(A) to 1(D) has then relied upon the judgment of Himachal Pradesh High Court in the case of Narinder Kaur and others Vs State of Himachal Pradesh through the Secretary (Transport) and others, 1991 ACJ 767. In the said case also during the pendency of the claim petition for personal injuries suffered by the claimant in the accident, the injured died and the legal heirs were sought to be brought on record. The issue before the court was whether the claim abates in toto and it was held that, claim will not abate in toto as the claim in respect of loss of the estate survives to the legal representatives, as loss to the estate is not covered by the exceptions contained in section 306 of Indian Succession Act, 1925. The issue before the court was whether the claim abates in toto and it was held that, claim will not abate in toto as the claim in respect of loss of the estate survives to the legal representatives, as loss to the estate is not covered by the exceptions contained in section 306 of Indian Succession Act, 1925. While taking this view, the Division Bench of Himachal Pradesh High Court had relied upon the decision of the Hon’ble Supreme Court in the case of Melepurath Sankunni Ezhuthassan Vs Thekittil Geopalankutty Nair , 1986 ACJ 440 (SC), wherein in para no.8 it was held that, “The claimants as legal representatives of the original claimant were, as such, entitled to be substituted in his place with a view to continue the proceedings in the case and to have a decision on the claim in respect of the loss caused to the estate of the deceased”. 25. As against it, learned counsel for appellant has relied upon the decision of the Division Bench of Madhya Pradesh High Court in the case of Umed Chand Golcha Vs Dayaram and others, 2001 ACJ 966 . In this case, while discussing the entire law on the subject and after taking review of the various decisions of Madhya Pradesh High Court and other High Courts and after having regard to the provisions contained in section 306 of Indian Succession Act and the provisions of M.V. Act, it was held that, “The cause of action survives to the legal heirs in case of death of the injured during pendency of the claim petition and that cause of action includes the one relating to the loss of estate”. In para no.19 of the judgment this very situation, where the claimant dies during the trial of his claim petition, for cause other than the accident, was considered, and it was held that, “So far as the claim for personal injury is concerned, it would abate on the death of the original claimant, but not the claim which pertains to loss to the estate of the injured. It survives for the legal representatives. Therefore, in case loss to the estate is already pleaded in the claim petition, legal representatives can be impleaded and they can seek compensation for loss to the estate”. It survives for the legal representatives. Therefore, in case loss to the estate is already pleaded in the claim petition, legal representatives can be impleaded and they can seek compensation for loss to the estate”. It was held that, “In absence of pleadings pointing out loss to the estate of the deceased, claim petition is liable to be dismissed”. In para no.21 of the judgment it was further held that, “The legal representatives can ask for loss to the estate on the items like medical expenses, expenditure on traveling, expenditure on attendant, expenditure on diet, expenditure on doctor's fee etc. They can do so by producing satisfactory evidence unless court is able to draw legitimate conclusion about such expenditures from out of the estate, from the facts and circumstances and on the basis of experience”. 26. Thus legal position is fairly well crystallized to the effect that the legal representatives of the injured, on account of his death during pendency of the claim petition, can be permitted to continue the claim petition. However they can be entitled to the compensation, only as regards the loss to the estate and that loss to the estate can be inclusive of medical expenses, expenditure on traveling, expenditure on attendant, expenditure on diet, expenditure on doctor's fee etc., depending on the facts and circumstances and pleadings and evidence to that effect. 27. In the instant case, therefore, respondent nos.1(A) to 1(D) can be entitled to get whatever expenses were incurred for the treatment of the injured as those expenses amount to loss of estate. In the petition filed before the Tribunal the amount of Rs.10,000/-was claimed on account of expenses for treatment, doctor fees and hospital charges. However, in the absence of any evidence brought on record to that effect, but in view of the admitted fact that he was treated in the VNGM College and Hospital Yavatmal and by Dr. Dabhere, the Tribunal has considered that he must have been required to incur some expenses for medical treatment, doctor fees, hospital charges and accordingly granted amount of Rs.5,000/-towards this loss. The amount being reasonable, I do not find any reason to disturb the said finding. 28. Injured has then also claimed the amount of Rs.3,000/-on account of expenditure incurred for special and nutritious diet. The amount being reasonable, I do not find any reason to disturb the said finding. 28. Injured has then also claimed the amount of Rs.3,000/-on account of expenditure incurred for special and nutritious diet. Though there was no evidence again to show this amount was actually incurred, the Tribunal has considered the injury sustained and his treatment in the hospital by Dr. Dabhere, allowed this amount. I do not find any reason to disagree with the same. 29. In the claim petition, the compensation of Rs.7,000/-was claimed on account of expenditure for lodging, boarding, and traveling of the injured and his relatives, who accompanied him and stayed with him during the treatment and medical check up from time to time. In the absence of any evidence to that effect and having regard to the stay of the injured in the hospital VNGM at Yavatmal and in the treatment by Dr. Dabhere, the Tribunal has awarded the reasonable sum of Rs.7,000/as claimed by the injured and that needs to be confirmed in this appeal also. 30. The tribunal has awarded the amount of Rs.15,000/-towards the mental and physical shock, pain and suffering etc. of the injured. However, respondents being the legal heirs of the injured, cannot be entitled to get this amount as it does not amount to loss of estate. Hence claim to that effect is required to be rejected. 31. Further, the Tribunal has considered that injured was of the age of 49 years and certainly he would have earned the income of Rs.3,000/-per month. Having regard to 10% permanent disability, the Tribunal calculated the amount of Rs.39,000/-towards loss of income. However, having regard to the fact that during the pendency of the petition itself, injured has expired on 13/04/2007, there is no question of calculating the future loss. The legal heirs will be entitled to get only the amount towards the pecuniary loss which they suffered on account of 10% disability from 31/10/2005 till 13/04/2007 which comes to 18 months and hence for this period of 18 months, 10% loss at the rate of Rs.300/-per month comes to Rs.5,400/-. 32. Thus total loss to the estate which is caused and to which respondent nos.1(A) to 1(D) are entitled, comes to Rs.20,000/- in round figure. To that extent, the impugned judgment and award needs to be modified by allowing this appeal. 33. Appeal is allowed. 34. 32. Thus total loss to the estate which is caused and to which respondent nos.1(A) to 1(D) are entitled, comes to Rs.20,000/- in round figure. To that extent, the impugned judgment and award needs to be modified by allowing this appeal. 33. Appeal is allowed. 34. The impugned judgment and award of the Tribunal stands modified to the extent that appellant and respondent no.2 shall pay jointly and severally, compensation amount of Rs.20,000/inclusive of NFL amount, to respondent nos.1(A) to 1(D) with interest at the rate of 7% per annum from the date of application till realization of the amount. 35. It is submitted by learned counsel for appellant that entire amount of compensation, as directed by the Tribunal, is deposited in the court. Hence appellant is entitled to get and withdraw the excess amount of compensation with proportionate interest thereon. 36. Respondents are entitled to withdraw the amount as stated above for Rs.20,000/-with proportionate interest at the rate of 7% per annum thereon, from the amount which is deposited in this court by appellant. The remaining amount with proportionate interest thereon be returned to the appellant. 37. Appeal stands disposed of in above terms, with no order as to costs.