The Oriental Insurance Co. Ltd. vs Kusum Devi And 8 Ors.
2018 Latest Caselaw 1911 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 6
 

 
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 933 of 2018
 

 
Appellant :- The Oriental Insurance Co. Ltd.
 
Respondent :- Kusum Devi And 8 Ors.
 
Counsel for Appellant :- Sushil Kumar Mehrotra
 

 
Hon'ble Ashok Kumar,J.

Heard Sri S.K. Mehrotra, learned counsel for the appellant-insurance company.

The instant appeal arises out of the judgment and decree/award dated 05.05.2018 passed by Motor Accident Claims Tribunal / District Judge, Siddharth Nagar in M.A.C.P. No. 62 of 2012, by which the learned Tribunal has allowed the claim petition by holding that the accident took place by a vehicle, which was insured with the appellant-insurance company when the accident took place. 

The fact of the case are that on 17.05.2012 the deceased Ram Shubhag @ Pancham was going as a pillion rider on registered two wheeler (motorcycle) bearing no. U.P. 55A/9792 and when the said motorcycle was on way to his residence at about 10:00 a.m. suddenly a dog appeared on the road and to save the dog and due to dis-balance both the motorcycle rider sustained serious injuries, as they fell down and ultimately Shubhag @ Pancham died.

The claim petition is filed by the wife of the deceased and his six children. The claimants claimed that they are entitled to get the compensation of Rs. 9,32,800/- plus interest @ 15% per annum.

Only issue no. 2, is pressed by the learned counsel for the appellant for adjudication by this Court, which is quoted herein below:-

"Issue no. 2. विपक्षी संख्या-२ बीमा कम्पनी की तरफ से कोई भी मौखिक साक्ष्य प्रस्तुत नहीं किया गया है। अभिलेखीय साक्ष्य के रूप में सूची ६३ग से बीमा कम्पनी द्वारा किये गये पत्राचार की प्रमाणित प्रतियां कागज संख्या-६४ग१ लगायत ६४ग/५ दाखिल किया गया है।"

Learned counsel for the appellant has submitted that there is no dispute that the authorised agent of the appellant-insurance company, namely, "Sahaj Jansewa Kendra" has received the cash amount of insurance from the owner of the vehicle in question (vehicle-motorcycle bearing no. U.P. 55A/9792) and the said agent has issued a 'certificate of insurance' which clearly indicates that the vehicle in question is insured vide receipt no. 89717 dated 12.05.2012 and is insured for a period of one year between 13.05.2012 to 12.05.2013.

Admittedly the vehicle in question was insured in between 13.05.2012 to 12.05.2013 and the date of accident is 17.05.2012.

Learned counsel for the appellant has placed reliance on an insurance policy, which is allegedly issued by the appellant-insurance company in respect of the same vehicle, indicating therein that the validity of the insurance period of the vehicle in question is from 20.10.2012 to mid-night of 19.10.2013. These documents, namely, the 'certificate of insurance' and 'insurance policy' prepared by the authorised agent and appellant-insurance company are placed before the Tribunal and the Tribunal has dealt with the documents and concluded that in fact the authorised agent of the insurance company has issued the 'certificate of insurance' after receiving the money in cash from the owner of the vehicle for a period between 13.05.2012 to 12.05.2013, therefore, the vehicle in question was duly insured when the accident took place on 17.05.2012.

In the aforesaid back ground, the impugned order has been passed by the Tribunal.

Learned counsel for the appellant-insurance company has placed reliance on a provision of Section 64VB of the Insurance Act, 1938.

Sub Section (1) and (2) of Section 64VB of the Insurance Act, 1938 are referred by the learned counsel for the appellant, which are quoted herein below:-

"64VB. No risk to be assumed unless premium is received in advance.-(1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.

(2) For purposes of this Section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer."

Learned counsel for the appellant has advanced an argument, based on the aforesaid provisions of Section 64VB particularly Sub Section (2), by submitting that the aforesaid provisions of Insurance Act provides that there is no liability of the insurance company to cover up the risk in a case where some mis-happening happened on account of the accident.

I found no substance in the submission of learned counsel for the appellant-insurance company as Sub Section (2) of Section 64VB of Insurance Act, 1938 clearly provides that once the premium is ascertained in advanced then the risk is covered from the date on which the premium has been paid either in cash or by cheque to the insurer.

In the instant case, there is no dispute, even by the appellant, that the authorised agent has received the money in cash for insurance of the vehicle with effect from 13.05.2012 to 12.05.2013 and further a 'certificate of insurance' is issued in favour of the owner of the vehicle. It appears that after the accident and filing of the claim petition by the claimants the appellant-insurance company prepared the antedated insurance policy to refuse to pay the claim or to accept the liabilities. There is no justification at the hands of the appellant-insurance company to issue the subsequent cover note or insurance policy, indicating therein that the vehicle was insured by the insurance company with effect from 20.10.2012 to 19.10.2013.

It is clearly a misconduct by the insurance company in discharging its obligatory duties.

An insurance policy holder or the owner of the vehicle gets his/her vehicle insured to cover up the risk or avail the facilities provided in the insurance policy, and in the instant case, it is clearly seen that the appellant insurance company tried to get away from the obligations and fraudulently issued a subsequent insurance policy with an obvious reasons.

This Court is of the opinion that this issue should be properly examined by the higher authorities of the appellant-insurance company and the person concern be penalised for the wrong committed, as it is clear cut case of forgery and misconduct as well as cheating.

Learned counsel for the appellant-insurance company has pressed the ground no. 15 of the appeal filed before this Court which is quoted herein below.

"15. Because in any case the amount of premium i.e. Rs. 468/- which has been received by Sahaj Jansewa Kendra was not the exact premium which was payable hence there was deficiency in the premium amount when it was made good the appellant insurance company issued policy on 19.10.2012."

This is very surprising that when admittedly, the authorised agent of the appellant-insurance company has issued the certificate of insurance and has charged the premium, which in this case is paid in cash by the owner of the vehicle, then how the appellant can raise the objection by saying that there was deficiency in the premium amount. In the instant case the owner of the motorcycle died, then how the premium amount was made good while issuing the subsequent policy specially when the vehicle in question become the case property as an FIR was lodged.

I am fully disagree with the contention of the learned counsel for the appellant-insurance company and when admittedly the authorised agent has issued the 'certificate of insurance' and has received the amount-payment while issuing the receipt, the same can not be disputed by the appellant-insurance company, at later stage.

This Court has also noticed that once the vehicle in question met an accident in which the owner of the vehicle died and another person received serious injuries and an FIR is lodged then the vehicle become the Court property, whereas while issuing the subsequent insurance policy the appellant-insurance company was well aware that a claim petition has been filed in the year 2012 itself in which the appellant-insurance company is the opposite party no. 2 and has participated then how the fresh policy is issued of a vehicle which has become the case property.

This fact clearly establishes that the officials of the insurance company somehow are responsible for the forgery and cheating with the policy holder. This aspect should also be examined by the higher authorities of the appellant-insurance company apart from the other issues as indicated herein above and a compliance report be submitted before the Court below within a period of eight weeks from today.

Sri S.K. Mehrotra, learned counsel for the appellant-insurance company has stated at bar that the insurance company probably has taken action against his agent. If that being so, it is clearly established that there is a collusion between the agent and the officials of the insurance company, therefore, it is a full prove case of forgery/cheating.

Let the proper enquiry be conducted and an FIR be lodged against the guilty persons.

In view of the aforesaid, the appeal is dismissed with cost of Rs. 1,00,000/- to be recovered from the insurance company and be paid to the claimants within a period of 60 days from today.

The learned Tribunal is directed to call for the compliance report from the appellant-insurance company within the time, as indicated herein above and ensure the compliance of the directions given herein above.

The appeal is dismissed.

Order Date :- 9.8.2018

SK Srivastava