Bombay High Court
The New India Assurance Co.Ltd vs Mr. Khadbad R. Mishra And Fooldevi ... on 10 January, 2023
Bench: Amit Borkar
Tauseef Farooqui 46-FA.89.2021.doc
TAUSEEF
LAIQUEE
FAROOQUI
Digitally signed by
TAUSEEF LAIQUEE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FAROOQUI
Date: 2023.01.13 CIVIL APPELLATE JURISDICTION
10:30:20 +0530
FIRST APPEAL NO.89 OF 2021
WITH
INTERIM APPLICATION NO.457 OF 2021
IN
FIRST APPEAL NO.89 OF 2021
The New India Assurance Co. Ltd. ...Appellant
V/s.
Mr. Khadbad R. Mishra &
Fooldevi Khadbad Mishra & Anr. ...Respondents
Mr. H. B. Takke i/by Mr. Milind More for Applicant.
Mr. T. J. Mendon for Respondent No.1.
CORAM : AMIT BORKAR, J.
DATE : JANUARY 10, 2023
P.C.:
1. The insurance company is challenging judgment and
order passed by the Motor Accident Claim Tribunal, Mumbai
(hereafter refer as "Tribunal" for short) on an application under
Section 140 of Motor Vehicles Act, 1988 (for short "the said Act")
in this first appeal.
2. According to the claimant, the accident took place on
11th April 2018 at 22.30, when the applicant's son was proceeding
on motorcycle as a pillion rider from Vasai to Sativali, when car
bearing registration no.MH-12-NB-3358 gave dash to the
applicant's son. In view of the death of the applicant's son, he filed
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Tauseef Farooqui 46-FA.89.2021.doc
Claim Application No.1126 of 2018 under Section 166 of the said
Act, claiming compensation of Rs.10,00,000/-.
3. The said claim was contested by the insurance
company mainly on the ground that the cheque of Rs.2,33,934/-
towards premium of policy was dishonoured, resulting into
cancellation of policy.
4. The learned Tribunal after hearing both sides allowed
the application under section 140 of the said Act, directing the
insurance company to pay amount of Rs.50,000/- along with
interest @ 7.5% per annum from the date of order till realization.
5. Insurance company has, therefore, filed present appeal.
6. Learned advocate for the insurance company
contended that due to dishonour of premium cheque, the policy
was cancelled before the date of accident. Therefore, according to
the company on the date of accident, there was no valid policy in
respect of insured vehicle. According to the insurance company,
therefore, it cannot be directed to pay no fault liability.
7. The Tribunal after considering the defence of the
company has recorded a finding that the fact of cancellation of
policy was not informed either to the insured or to the road
transport officer. Neither RPAD receipt, nor acknowledgment to
prove the intimation of cancellation of policy on the insured had
been produced on record. The intimation issued to RTO was also
not produced on record. The insurance company having not been
able to produce the documentary evidence regarding cancellation
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Tauseef Farooqui 46-FA.89.2021.doc
of policy before the date of accident, the Tribunal was justified in
granting amount of Rs.50,000/- towards claim under Section 140
of the said Act. As the accident has resulted into the death of
applicant's son, in the absence of proof of cancellation of policy, in
my opinion, the Tribunal was justified in allowing the application
under Section 140 of the said Act.
8. It is always open for the insurance company to produce
material to show that the policy was cancelled before the Tribunal
at the time of hearing of the claim application.
9. There is no merit in the appeal. The appeal is,
therefore, dismissed.
10. In view of dismissal of appeal, interim application does
not survive. Hence, it is also dismissed.
(AMIT BORKAR, J.)
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