Bombay High Court
United India Insurace Co Ltd vs Baburao Sakharam Hanwate & Anr on 15 September, 2016
Bench: P.R. Bora
1 FA No.817/2004
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.817 OF 2004
United India Insurance Co. Ltd.
Through its Divisional Manager,
Aurangabad Division, Aurangabad. = APPELLANT
(orig.Resp.no.2)
VERSUS
1) Baburao s/o Sakharam Hanwate
Age: 35 Yrs., occu. Service,
r/o Hatta, Tq. Basmat,
District Parbhani.
2) Sk. Janimiya Bademiya,
Age: 50 Yrs., occ. Business
(Truck owner)
R/o Karkhana Road, Basmath,
Tq. Basmath, Dist. Parbhani. = RESPONDENTS
(Resp.No.1 is orig.
claimant and Resp.
No.2 is orig.Resp.
No.1)
-----
Mr. DB Shinde, Advocate h/for Mr. M.S.Deshmukh, for
Appellant.
Mr.MB Sandanshiv, Adv. h/for Mr. YN More, Adv. For
Resp.No.1.
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2 FA No.817/2004
CORAM : P.R.BORA, J.
DATE :
15 th
September,2016.
ORAL JUDGMENT:
1) Heard. The insurance company has filed
the present appeal against the Judgment and Award
dated 13th March, 2003 passed in MACP No.95/1999
by Motor Accident Claims Tribunal, Parbhani.
(for short, the Tribunal ) Respondent No.1 had
filed the aforesaid claim petition seeking
compensation on account of the injuries caused to
him in a vehicular accident happened on 11 th
January, 1999 having involvement of a truck
bearing registration No.MTB-1371 registered with
the appellant/insurance company.
2) It was the contention of present
Respondent No.1 that the alleged accident had
happened because of negligence on the part of
driver of the offending truck. He had,
therefore, claimed compensation from the driver,
owner and insurer of the offending truck.
3) The claim petition was contested by the
insurance company. It was the contention of the
insurance company that on the date of the
accident, the offending truck was not insured
with it and as such, it was not liable to
indemnify the owner of the truck. The petition
was also contested on the point of quantum.
4) The learned Tribunal, after having
assessed the oral and documentary evidence
brought before it, granted to the claimant the
compensation of Rs.30,900/- inclusive of NFL
compensation jointly and severally from the owner
and insurer of the offending truck. Aggrieved
by, the insurance company has filed the present
appeal.
5) The only ground, which is raised during
the course of the argument, is that on the date
of the accident, the offending truck was not
insured with the insurance company and as such,
it was not liable to indemnify the insured, i.e.
owner of the truck. The learned Counsel
appearing for the appellant submitted that the
appellant insurance company has sufficiently
proved that the cheque issued by the owner of the
offending truck towards premium of the insurance
policy purchased by the said owner for the
offending truck, was dishonoured and as such, the
policy was not in force on the date of the
accident. The learned counsel submitted that the
cover note was issued evidencing that the
offending vehicle was insured for the period
28.10.1998 to 27.10.1999. However, the cheque
issued by the owner of the truck towards the
amount of policy premium, was dishonoured and the
owner of the vehicle subsequently remitted a
demand draft of the premium amount on 12th
January, 1999. The learned Counsel further
submitted that the demand draft was sent by the
owner to the insurance company by post, which was
received to the insurance company on 18th January,
1999. The learned Counsel submitted that the
alleged accident had happened on 11th January,
1999. The learned Counsel submitted that the
owner of the truck, with fraudulent intention,
sent the demand draft of the premium amount after
occurrence of the accident on 11th January, 1999
so as to avoid his personal liability to pay the
amount of compensation. The learned counsel
submitted that the learned Tribunal has failed in
appreciating the aforesaid aspect and has on
erroneous grounds, turned down the plea taken by
the insurance company. The learned Counsel,
therefore, prayed for setting aside the impugned
Judgment and Award.
6) No one has appeared for the respondent
No.2.
7) After having carefully considered the
submissions made on behalf of the appellant and
on perusal of the impugned judgment, it does not
appear to me that any case is made out by the
appellant insurance company, warranting any
interference in the impugned Judgment and Award.
As mentioned herein above, the only ground which
has been pressed during the course of the
arguments is that the offending truck was not
insured on the date of the accident. It is not
in dispute that the insurance cover note was
issued by the appellant insurance company
evidencing that the offending truck was insured
with it for the period between 28.10.1998 to
27.10.1999. The insurance company has not
brought on record any evidence to show that after
the cheque issued by the owner of the truck
towards the policy premium was dishonoured, the
insurance company had cancelled the insurance
policy and had informed about the same to the
owner of the vehicle as well as to the concerned
RTO. In such circumstances, it is difficult to
accept the contention of the appellant insurance
company that it was exonerated from the liability
to indemnify the insured and no order could have
been passed against it.
8) For the reasons stated above, it does
not appear to me that any error is committed by
the Tribunal in passing the impugned Judgment and
Award. The appeal is devoid of any substance and
deserves to be dismissed and is accordingly
dismissed without any order as to the costs.
Pending civil application, if any, stands
disposed of.
ig (P.R.BORA)
JUDGE
bdv/
