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2019 DIGILAW 2797 (RAJ)

Oriental Insurance Co Ltd. v. Kamlesh

2019-11-06

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - Feeling aggrieved of the order dated 02.08.2019, passed by the Motor Accident Claims Tribunal, Banswara (hereinafter referred to as the 'Tribunal'), whereby petitioner's application dated 25.01.2019, filed under Order I Rule 10 of the Code of Civil Procedure, seeking deletion of its name from the array of respondent has been rejected, petitioner- an Insurance Company has approached this Court. 2. Succinctly stated, the facts appertain to the present writ petition are that the respondent No.1 filed a claim petition under Sections 140 and 166 of the Motor Vehicles Act for the injuries he sustained in an accident, when vehicle owned by respondent No. 3 being driven by respondent No. 2 hit him, while he was going home from his school. 3. Petitioner-Company - Oriental Insurance Company was also impleaded as a party respondent in the petition, as the offending vehicle was insured with the petitioner - Company. 4. Petitioner - Company filed a written statement and asserted that there was no valid contract of Insurance, as the cheque, which was given for procuring the policy, was returned dishonoured. 5. During pendency of the claim petition, the petitioner - Insurance Company moved an application dated 25.01.2019, inter alia contending that the cheque No.666031 dated 18.02.2016 drawn on State Bank of Bikaner and Jaipur, issued by the owner of the vehicle had been returned by the Bank on 23.02.2016, whereafter, the policy in question had been canceled by it and an intimation to this effect was sent on 29.02.2016. With the assertion and plea petitioner - Company cannot be held liable for the amount to be awarded in the claim petition, it was prayed that its name be deleted from array of respondents. 6. The petitioner's aforesaid application has been rejected by the learned Tribunal below vide its order dated 02.08.2019. While rejecting the petitioner's application, the Tribunal has made many observations, including the fact that the insurance policy had been cancelled was known to the Insurance Company and such fact has been brought before the Tribunal only by way of filing written statement (21.12.2018), when the notices of claim were served on 14.12.2017. 7. Mr. While rejecting the petitioner's application, the Tribunal has made many observations, including the fact that the insurance policy had been cancelled was known to the Insurance Company and such fact has been brought before the Tribunal only by way of filing written statement (21.12.2018), when the notices of claim were served on 14.12.2017. 7. Mr. Mehta, learned counsel for the petitioner, inviting Court's attention towards memo of return of cheque, argued that since the cheque issued in relation to the policy of insurance had been returned unpaid, the cover note issued in favour of Shri Abdul Kadir, owner of the vehicle, stood cancelled and hence no valid contract of insurance existed and thus, the petitioner - Company cannot be asked to suffer long trial. 8. Having heard learned counsel for the petitioner and upon perusal of the order impugned dated 02.08.2019, this Court is of the considered opinion that there may be some substance in what has been contended by the petitioner - Company that there existed no valid contract of insurance, however, this fact has to be established and the effect of dishonor of cheque adjudicated, which can be done only after framing of issues and leading of evidence. 9. Simply because the cheque had been purportedly returned and the petitioner has taken a stance that there was no contract of insurance, its name cannot be eschewed from the arena of respondents. The facts asserted by the petitioner - Company are also required to be determined and adjudicated upon by the Tribunal - of course after leading of the evidence. 10. Though the reasons given by the learned Tribunal below in its order dated 02.08.2019 are not in conformity with law. The reasoning that the petitioner - Company has come out with the plea of revocation of contract of insurance belatedly - at the time of filing the written statement, is absolutely misconceived and irrelevant. In essence, petitioner's application under Order I Rule 10 has been rejected on the ground of delay, which reason, according to this court is neither germane nor sustainable. 11. Though not approving of the reasoning given by the learned Tribunal, for the reasons noticed hereinabove, this Court does not find any merit in the petitioner's application dated 25.01.2019, hence, the order dated 02.08.2019 rejecting petitioner's application for deletion of his name, is otherwise affirmed. 12. The writ petition is dismissed. 13. 11. Though not approving of the reasoning given by the learned Tribunal, for the reasons noticed hereinabove, this Court does not find any merit in the petitioner's application dated 25.01.2019, hence, the order dated 02.08.2019 rejecting petitioner's application for deletion of his name, is otherwise affirmed. 12. The writ petition is dismissed. 13. The stay application is also dismissed. 14. Needless to observe that the reasons recorded in the order dated 02.08.12019, will not influence/ prevail over the Tribunal while finally deciding the claim petition. Petitioner's defence/plea will be examined and adjudicated in accordance with law.