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Rajasthan High Court · body

2021 DIGILAW 1651 (RAJ)

Cholamandalam Ms Gen Insurance Co Ltd v. Rampal

2021-09-06

ASHOK KUMAR GAUR

body2021
ORDER S.B. Civil Miscellaneous Appeal No. 2860/2018:- 1. The matter comes up on an application filed by the appellant for vacating the interim stay order dated 10.07.2018 passed by this Court. 2. Learned counsel for the claimant submitted that on 10.07.2018, this Court has stayed the execution of the award subject to depositing the entire amount of compensation by the appellant with the Tribunal. 3. Learned counsel submitted that the Tribunal by award dated 24.03.2018 has granted total award of Rs.8,73,000/- along with interest @9% per annum. 4. Learned counsel for the claimant submitted that in the instant case, the claimant suffered 70% disability and his leg has also been amputated. 5. Learned counsel submitted that the claimant is not able to live his normal life and for his survival, he needs money and as such, this Court may pass appropriate order of disbursement of amount. 6. Learned counsel for the claimant to establish prima facie case in his favour places reliance on a judgment reported in 2013 R.A.R. 47 (SC) United India Insurance Co. Limited Vs Laxmamma & Ors., the relevant portion of the judgment passed by Hon'ble Apex Court in para no. 19 is quoted as hereunder:- "In our view, the legal position is this: where the policy of insurance is issued by an authorize insurer on receipt of cheque towards payment of premium and such cheque is returned dishonoured, the liability of authorized insurer to indemnify third parties in respect of the liability which that policy covered subsists and it has to satisfy award of compensation by reason of the provisions of Sections 147(5) and 149(1) of the M.V. Act unless the policy of insurance is cancelled by the authorized insurer and intimation of such cancellation has reached the insured before the accident. In other words, where the policy of insurance is issued by an authorized insurer to cover a vehicle on receipt of the cheque paid towards premium and the cheque gets dishonored and before the accident of the vehicle occurs, such insurance company cancels the policy of insurance and sends intimation thereof to the owner, the insurance company?s liability to indemnify the third parties which that policy covered ceases and the insurance company is not liable to satisfy awards of compensation in respect thereof." 7. Leaned counsel also places reliance on the judgment in the case of National Insurance Company Limited Vs Abhaysing Pratapsing Waghela & Ors., 2009 R.A.R. 6 (SC). 8. Learned counsel Mr. Virendra Agarwal has opposed the prayer sought for vacation of interim order passed by this Court. 9. Learned counsel for the appellant submitted that this Court after considering the prima facie case in favour of the appellant has stayed the operation of the award. 10. Learned counsel for the appellant further submitted that the facts in the instant case shows that the cheque which was given to the appellant-Insurance Company was dishonored on 02.08.2014 and intimation was also sent to the owner of the vehicle on 08.08.2014. 11. Learned counsel for the appellant further submitted that though the cover note was issued on 24.07.2014, however, the accident took place on 25.07.2014 and when the cheque was sent for realization to the Bank, the same was dishonored. 12. Learned counsel for the appellant further submitted that the Insurance Company cannot be fastened with the liability and at least right to recover the said amount is required to be given against the owner. 13. I have heard the submissions made by learned counsels for the parties. 14. This Court finds that the order dated 10.07.2018 needs to be modified in the present facts of the case. 15. This Court accordingly directs that the claimant will be entitled for disbursement of 50% of the award amount in his savings account after taking an undertaking that payment made to him will be subject to final outcome of the appeal and if the appeal of the appellant is allowed against the claimant, he will be required to refund back the amount. The rest of the amount be kept in FDR for a period of one year which would be renewed from time to time. 16. The application is accordingly disposed of. 17. Record of the case be sent back to the Tribunal and after disbursement of the amount, the record be sent back to this Court, immediately.