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Oriental Insurance Co. Ltd. Vs. Dinabandhu Nayak and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Insurance
CourtOrissa High Court
Decided On
Case NumberA.H.O. Nos. 77 and 78 of 2000
Judge
Reported inI(2005)ACC539; 2006ACJ585; 2004(I)OLR292
ActsMotor Vehicles Act, 1988 - Sections 166
AppellantOriental Insurance Co. Ltd.
RespondentDinabandhu Nayak and anr.
Appellant AdvocateA.K. Mohanty, M.C. Nayak and D.C. Dey
Respondent AdvocateSujata Dash, ;P.K. Mishra and ;Babita Sahu, Advs. For Respondent No. 1
DispositionAppeal dismissed
Cases ReferredNew India Assurance Co. Ltd. v. Rula and Ors.
Excerpt:
.....for enhancement of compensation - single judge, enhanced compensation - appeal filed by appellant-insurance company dismissed - hence, present letter patent appeal - held, insurance company not adduced any evidence which reveals that bus owner did not deposit premium amount - further appellant allowed bonus which presupposed that earlier policy was not cancelled nor owner breached any of conditions stipulated in policy - single judge has elaborately dealt with evidence thus court do not find any justifiable reason to differ from said finding - so far as enhancement of compensation by single judge is concerned, it appears that tribunal assessed monthly income of respondent no.1 was very low - after going through evidence and other materials available, also do not find any reason to..........expenses.the owner of the vehicle did not contest the case and was set ex parte. 3. the appellant-insurance company which was respondent no. 2 before the tribunal filed a bald written statement. the only ground taken in the original written statement was that the driver of the offending vehicle was not having valid licence and the claimant was to prove his case beyond all reasonable doubts. subsequently, however, the said written statement was amended and the plea that the cheque issued by the owner towards premium had bounced was taken. in short, the plea of the insurance company was that it was not liable to pay any compensation. 4. on an analysis of the evidence adduced by the parties inter se the tribunal arrived at a conclusion that the accident occurred due to the negligent.....
Judgment:

A.S. Naidu, J.

1. These Letters Pattent Appeals are filed by M/s.Oriental Insurance Co. Ltd. being aggrieved by a common judgment dated 3.5.2000 passed by the learned Single Judge of this Court in M.A. Nos. 200 and 222 of 1998. Both the Misc.Appeals arose out of a claim case filed by respondent No. 1 before the Second Motor Accident Claims Tribunal (S.D.) Berhampur, being M.A.C. No. 424/94 (190/94) under Section 166 of the Motor Vehicles Act.

2. Bereft of all unnecessary details, the short facts of the case are that :

On 21.2.1994 at about 6.30 A.M., a Bus bearing registration number OAG 7927 being driven in a rash and negligent manner dashed against the claimant on the main road near village Karapada thereby causing severe injuries on his person. He was admitted to the hospital for treatment and subsequently he filed the claim case, claiming Rs. 1,80,000/- towards compensation for the physical handicap disability and agony sustained by him due to the accident and Rs. 20,000/- towards conveyance from the spot of the accident to the hospital and back, cost incurred for treatment, cost of attendant in the hospital as well as other expenses.The owner of the vehicle did not contest the case and was set ex parte.

3. The appellant-Insurance Company which was respondent No. 2 before the Tribunal filed a bald written statement. The only ground taken in the original written statement was that the driver of the offending vehicle was not having valid licence and the claimant was to prove his case beyond all reasonable doubts. Subsequently, however, the said written statement was amended and the plea that the Cheque issued by the owner towards premium had bounced was taken. In short, the plea of the Insurance Company was that it was not liable to pay any compensation.

4. On an analysis of the evidence adduced by the parties inter se the Tribunal arrived at a conclusion that the accident occurred due to the negligent driving by the driver of the offending vehicle and taking into consideration the fact that a sum of Rs. 31,000/- was spent from medical expenses awarded a compensation of Rs. 1,00,000/-(One Lakh).

5. Challenging the said Award, two Misc. Appeals were filed before this Court, being M.A. No. 200 of 1998 by the Insurance Company reiterating the ground that the insurer was not liable to pay any compensation and M.A. No. 222 of 1998 by the claimant demanding higher compensation. Both the said Appeals were heard together and were disposed of by the learned Single Judge by a common judgment. The appeal filed by the claimant was allowed in part and the compensation of Rs. 1,00,000/- was enhanced to Rs. 1,90,000/- but the appeal filed by the Insurance Company was dismissed. These Letters Patent Appeals have been preferred by the Insurance Company being aggrieved by the said common judgment.

3. 6. The moot question which needs to be determined in these Appeals is whether the appellant-Insurance Company is liable to pay the compensation for or on behalf of the owner of the offending vehicle.

7. The answer to this question squarely depends upon the fact as to whether the Insurance Policy was valid on the date on which the accident took place. The Insurance is a contract whereby one undertakes to indemnify another against loss, damages or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in future. Section 2(9) of the Insurance Act defines 'insurer, inter alia as 'any body corporate carrying on the business of insurance which is a body corporate incorporated under any law for the time being in force in India.' Section 2(d) of the Act stipulates that 'every insurer shall be subjectto all the provisions of this Act in relation to any class of insurance business so long as his liabilities in India in respect of business of that class remain unsatisfied or not otherwise provided for. 'Interpreting said section and Sections 52 and 54 of the Indian Contract Act, the Supreme Court in the case of National Insurance Co. Ltd. V. Seema Malhotra and Ors., AIR 2001 SC 1197 held that where under a contract of insurance the insured gave a cheque to the insurer towards the first premium amount, but the cheque was dishonoured by the drawee-bank due to insufficiency of funds in the account of the drawer, the insurer is not liable in such a situation, to honour the claim. Relying upon the aforesaid principle as well as the ratio of an unreported decision of this Court in Divisional Manager, New India Assurance Co. Ltd. v. Rajendra Kishore Harichandan and Anr., (A.H.O. No. 33 of 1999 and A.H.O. No. 31 of 2001) (disposed of on 20.4.2001), Mr.A.K. Mohanty, learned counsel for the appellant, forcefully and strenuously submitted that as in the present case, the cheque given by the owner-respondent No. 2 towards the premium of the Insurance bounced, the appellant-Insurance Company is not liable to pay the compensation awarded. To countenance such submission, Dr.Sujata Dash, learned counsel for respondent No. 1, relying upon the decision of the Supreme Court in the case of New India Assurance Co. Ltd. v. Rula and Ors., AIR 2000 SC 1082, submitted that admittedly the accident in the present case took place on 21.2.1994. By then the Insurance Policy issued by the Appellant-Company was in vogue. The owner was not intimated about the fact that the policy had been cancelled for any reason. Even after filing of the claim case, the Insurance Company did not take a plea that the cheque issued by the owner of the offending vehicle had bounced and the original written statement was silent about the said fact. But then, thereafter, the Insurance Company rose from its deep slumber and amended the written statement in the year 1997 taking a plea that the cheque given by the owner towards premium had bounced. According to Dr. Dash, such a belated plea should not be taken into consideration, according to learned counsel, if on the date of the accident, there was a policy of Insurance in respect of the offending vehicle in question, the third party would have to claim against the insurer (Insurance Company) of the owner of the offending vehicle to indemnify the claim of that party. The subsequent cancellation of the Insurance Policy on the ground of non-payment of premium would not affect the rights already accrued in favour of the third party.

8. Law is well settled that the contract of Insurance in respect of motor vehicles has,to be construed in the light of the provisions of Sections 148 and 149 of the Motor Vehicles Act. Section 146(1) of the said Act creates an embargo on the use of the motor vehicle without an Insurance Policy havingbeen taken in accordance with the M.V.Act. The manifest object of this provision is to ensure that the third party,who suffers injuries due to the use of the motor vehicle, may be able to get damage from the owner of the vehicle and recoverability of the damages may not depend on the financial condition or solvency of the driver of the vehicle who had caused the injuries. Any contract of insurance under the Motor Vehicles Act contemplates a third party who is not a signatory or a party to the contract of insurance but is, nevertheless, protected by such contract to recover the amount from the Insurer. 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 the concern of the third party who is concerned with the fact as to whether there was a policy issued in respect of the vehicle involved in the accident and the same was valid on the date of accident. It is on the basis of this policy that the claim can be maintained by the third party against the insurer.

9. In the touch-stone of the aforesaid decision, we have scrutinised the facts of the present case. Admittedly, the accident in question took place on 21.2.1994. The claim case was filed on 10.5.1994. The original written statement was filed by the appellant-Insurance Company on 30.1.1995. In the said written statement, no ground was taken to the effect that the cheque submitted by the owner towards the premium had bounced or the Insurance Policy was not valid. On 7.10.1997 an amended written statement was filed. Paragraph-5 of the said written statement reads as follows :

'That this Resp. No. 2 does not admit any liability whatsoever sustained by the Resp. No. 1, P. R. Khadenga in the instant case as the Resp. No. 1 has not paid any premium in lieu of a policy as the cheque presented by R. 1 for this purpose was dishonoured.'

Surprisingly, no witness was examined on behalf of the Insurance Company to substantiate the said plea. But then, a letter said to have been issued on 12.8.1997 by the State Bank of India was admitted into evidence without objection and marked as Ext.-A. By the said letter the Bank had informed the appellant-Insurance Company that the cheque deposited for collection on 30.11.1993 had been returned unpaid. No oral evidence in support of such communication has been adduced by the Insurance Company. It is also not known as to whether after return of the cheque, the premium amount was deposited by the owner or not. It is rather surprising that though the cheque was said to have been returned on 1.3.1994, no action was taken by the Insurance Company for cancellation of the Insurance Policy which was admittedly issued much earlier and was subsisting on21.2.1994 when the accident took place. At the other hand,Ext.-9/a clearly indicates that the Insurance Policy was valid from 28.11.93 to 27.11.1994. The Cover Note was issued on 27.11.93, vide Ext. -1. One of the most important facts is that the owner-respondent No. 2 again renewed the insurance policy of the said offending vehicle in the subsequent year as per Ext-9/B and the Insurance Company allowed bonus which presupposed that the earlier policy was not cancelled nor the owner breached any of the conditions stipulated therein. What surprises us most is that Ext-A produced by the appellant-Insurance Company was issued by the Bank on 12.8.1997 i.e. two and half years after issuance of the Policy. The action of the Insurance Company in not cancelling the Policy and more so renewing the Policy for the next year by allowing bonus estops the appellant by conduct from taking a plea that the policy was not subsisting on the date of accident. Ext-9/a and Ext-9/B reveal that the Insurance Policy was valid from 28.11.1993 to 27.11.1994 and thereafter it was renewed. Admittedly, the accident having taken place on 21.2.1994, we have no hesitation to hold that the Insurance Policy was subsisting on that date. This conclusion of us is further fortified by the fact that the Insurance Company has not adduced any oral evidence nor evidence is forthcoming to reveal that after the cheque was bounced, the owner did not deposit the premium amount.

10. The learned Single Judge has elaborately dealt with the evidence both, oral and documentary, and has confirmed the decision of the Tribunal with regard to the liability of the Insurance Company and we do not find any justifiable reason to differ from the said finding. The factual narration made above would clearly reveal that this case is different in facts from the case of Seema Malhotra (supra) and the ratio of the said decision shall not be strictly applicable to the present case.

11. So far as enhancement of compensation by the learned Single Judge from Rs. 1,00,000/- to Rs. 1,90,000/- is concerned, it appears that the Tribunal assessed the monthly income of the claimant at Rs.600/- which was very low. Even taking into consideration the Minimum Wages Act, monthly average income of the claimant would not be less than Rs. 1200/- The age of the claimant was between 36 and 37 years. Taking into consideration all these facts, learned Single Judge enhanced the compensation. After going through the evidence and other materials available, we also do not find any reason to differ from the conclusion arrived at by the learned Single Judge and decline to interfere with the same.

12. We find no merit in these two Appeals which are, accordingly, dismissed. Parties to bear their own costs.

C.J.

I agree.


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