HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.397 OF 2015
JUDGMENT:
Heard learned counsel Sri Mr. A.V.K.S.Prasad, for the appellant-insurance company. Respondent Nos.2 and 3 herein remained ex parte before the Tribunal, therefore, notices to respondents 2 and 3 are dispensed with in the light of decision of Meka Chakra Rao vs. Yelubandi babu Rao @ Reddemma and others 1 . Notice to claimant is served, however, there is no representation on behalf of claimant.
2. The present appeal has been filed by the appellant-insurance company aggrieved by the award passed by the Motor Accident Claims Tribunal-cum-I Additional District Judge, Warangal (for short, 'MACT') in M.V.O.P.No.712 of 2008, dated 23.12.2014 and thereby seeking to set aside the award against the insurance company.
3. The brief factual matrix of the present appeal is as under.
4. The claimant, respondent no.1 herein, is a School, represented by its Correspondent and it is contended that it had constructed a big gate in front of the school by spending lakhs of 1 2001 (1) ALT 495 (DB) LNA,J MACMA No. 397 of 2015 2 rupees. On 04.06.2007 at about 2.00 p.m., heavy lorry crane No.MH-06-AF-1418, belonging to the 2nd respondent herein, insured with appellant and respondent No.3 herein, was driven by its driver in rash and negligent manner and while taking reverse gear, dashed the gate of the school, as a result, the entire gate was completely damaged and the supporting walls developed cracks. The claimant filed O.P. claiming compensation of Rs.2,37,000/- from the owner of the vehicle and the insurance company.
5. The respondent Nos.1 and 2 before the MACT remained ex parte and appellant-insurance company filed counter denying the allegations made in the claim petition and contended that the driver of the vehicle has violated the terms and conditions of the policy and that no insurance coverage as per M.V.Act for the property damaged to the third party and prayed for dismissal of the claim petition.
6. Basing on the above pleadings, the MACT had framed the following issues:
i) Whether the accident was due to rash and negligent driving on the part of the driver of the heavy lorry bearing no.MH-06-AF- 1418 ?
ii) Whether the petitioner is entitled for damages, if so, what amount and from whom ?
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iii) To what relief ?
7. In order to substantiate the case, on behalf of the claimant, P.Ws.1 and 2 were examined and Exs.A1 to A8 were marked. On behalf of the 3rd respondent-insurance company, R.W.1 was examined and Exs.B1 to B3 were marked.
8. The MACT after considering the evidence placed on record, came to conclusion that the accident took place due to the rash and negligent driving of the driver of the vehicle and awarded compensation of Rs.25,000/- towards damages.
9. The owner of the vehicle and the Insurance Company i.e., respondents 1 to 3 were held to be jointly and severally liable to pay the said compensation with costs and interest @ 6% per annum from the date of petition till the date of realization.
10. During the course of hearing of appeal, learned counsel for appellant-insurance company mainly contended that cover note and other particulars furnished by the claimant are not tallying with its record and that MACT ought to have directed the claimant to furnish correct policy particulars. The appellant denied the subsistence of any valid policy to the crime vehicle. To support the said plea, the insurance company examined RW.1, who LNA,J MACMA No. 397 of 2015 4 categorically denied the existence of policy coverage to the crime vehicle. The appellant issued notice to the claimant to furnish the details of policy to the vehicle in question, that having received the notice, claimant failed to furnish the details and he was remained ex parte and therefore, the MACT ought to have decided the case against the owner of the crime vehicle.
11. The learned counsel for appellant further submitted that without appreciating the evidence of RW.1, the MACT committed error in fastening the liability upon the insurance company to pay compensation. The learned counsel for appellant mainly contended that only cover note was issued and no such policy was issued. Therefore, insurance company is not liable and thus, the MACT erred in holding that insurance company is liable for payment of compensation and finally, prayed to allow the appeal setting aside the claim against the insurance company. In support of his contention, he placed reliance in the case of United India Insurance Company Ltd. Vs. B.Jaya Lakshmi and others 2. Consideration:
12. With regard to cover note number and other particulars furnished by the claimant, the MACT on perusal of copy of cover 2 2004 (4) ALD 99 LNA,J MACMA No. 397 of 2015 5 note, found that the proposal form was issued on 08.12.2006 in respect of crime vehicle bearing No.MH-06-AF-1448 in favour of M/s.Gurukrupa Crane Services, and the particulars are also mentioned in the cover note. Therefore, the MACT held that cover note is valid as it was issued in respect of the crime vehicle and when the policy was subsisting on the basis of cover note at the time of the accident, the respondents 2 and 3 being insurers are liable for payment of compensation. Therefore, the MACT rejected the contention of the insurance company that no policy was issued with the cover note and ultimately held that respondents 1 to 3 are liable to pay compensation.
13. The decision referred to and relied upon by the learned counsel for the appellant do not apply to the facts of the present case and same is distinguishable on facts.
14. In National Insurance Company Limited vs. Abhaysing Pratapsing Waghela and others 3 , the Hon'ble Apex Court at paragraph-17 held that 'If a cover note had been issued which in terms of clause (b) of sub-section (1) of Section 145 of the Act would come within the purview of definition of certificate of insurance; it 3 (2008) 9 SCC 133 LNA,J MACMA No. 397 of 2015 6 would also come within the purview of the definition of insurance policy. If a cover note is issued, it remains valid till it is cancelled.'
15. In the light of above decision of Hon'ble Apex court, issuance of cover note itself is sufficient to fasten the liability of insurance company and therefore, the insurance company is liable to pay compensation.
Conclusion:
16. In the light of factual matrix and legal position, in considered opinion of this Court, there is no irregularity in the award passed by the MACT and further, the appellant failed to make out any ground warranting this Court to interfere with the award passed by the MACT. Therefore, the appeal fails and is accordingly dismissed, affirming the award passed by the MACT. There shall be no order as to costs.
17. Pending miscellaneous applications if any shall stand closed.
[[ ____________________________________ LAXMI NARAYANA ALISHETTY,J Date: 07 .11.2023 kkm LNA,J MACMA No. 397 of 2015 7 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY M.A.C.M.A.NO.397 OF 2015 Date: 07.11.2023 kkm