Oriental Insurance Co. Ltd. vs Sanjay Rajput & Ors.
2014 Latest Caselaw 1290 Del

$~36 & 37
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment delivered on: 10th March, 2014


+              MAC.APP. No.699/2010 & CM No.18866/2010
ORIENTAL INSURANCE CO. LTD.                                   .....Appellants
                  Represented by:            Ms. Savita Singh, Advocate.
             Versus
CHINTAMANI & ORS.                                          ..... Respondents
                           Represented by:   Mr. R.S.Gulia, Advocate for
                                             Respondent No.3.

                                      AND

+              MAC.APP. No.743/2010 & CM No.19852/2010
ORIENTAL INSURANCE CO. LTD.                                   .....Appellants
                  Represented by:            Ms. Savita Singh, Advocate.
             Versus
SANJAY RAJPUT & ORS.                                       ..... Respondents
                  Represented by:            Mr. R.S.Gulia, Advocate for
                                             Respondent No.3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Both these appeals are preferred by Oriental Insurance Co. Ltd.

against the common judgment and order dated 07.07.2010 passed in Petition

No.843/2004, titled as 'Çhintamani Arya Vs. Davinder Pal Singh' and

Petition No.842/2004, titled as 'Sanjay Rajput Vs. Davinder Pal Singh',

whereby the learned Tribunal has granted compensation for a sum of

Rs.1,51,712/- and Rs.85,000/- respectively along with interest at the rate of

7.5% per annum from the date of filing of the petition till realization of the

amount.

2. It is pertinent to mention here that these appeals arise out of a

common judgment dated 07.07.2010 and the issues involved in both the

cases are also same. Besides, the trial was also held analogously and

Insurance Company had also tendered same set of evidence, therefore, both

the appeals are being decided by this common judgment.

3. Learned counsel appearing on behalf of the appellant/Insurance

Company submits that the learned Tribunal has failed to appreciate that the

contract of the appellant was invalid and void ab initio as respondent No.2,

Davinder Pal Singh, i.e., owner of the offending vehicle obtained an

insurance cover for his Maruti Omni Car No. DL 4CH 8466 from

16.11.2000 to 15.11.2001. The insurance premium of Rs.5,342/- was given

by cheque No.31692 dated 15.11.2000, drawn on UCO Bank. Vide their

letter dated 18.11.2000, the aforesaid Bank informed the appellant about

dishonouring of premium cheque of Rs.5,342/- for 'insufficient funds'.

4. Learned counsel submits that on receipt of the information regarding

dishonouring of the said premium cheque from the Bank, the appellant

informed the owner/respondent No.2 by registered letter dated 27.02.2001

about cancellation of the insurance policy. Copies of the letters were also

sent to Financer and RTO concerned vide their letter dated 27.02.2001.

5. Learned counsel further submits that despite clinching evidence that

cheque for premium tendered by the respondent No.2/owner of the offending

vehicle to the appellant was dishonoured for lack of funds, whereupon the

insured, his Financer and RTO concerned were duly informed, however, the

learned Tribunal passed the award and directed the appellant to pay the

compensation in favour of the respondents/claimants.

6. Learned counsel also submits that the learned Tribunal failed to

appreciate that since the insurance policy had been cancelled by the

appellant for non-receipt of premium, the appellant was not liable to pay any

compensation. Learned counsel has prayed to this Court that though under

the said circumstances, the appellant/Insurance Company was entitled for

exoneration from any liability, but alternatively, the learned Tribunal ought

to have granted recovery rights against the respondent No.2, i.e., owner of

the offending vehicle.

7. On perusal of the trial court record, it is established that the insurance

policy in respect of the offending vehicle was taken on 16.11.2000, whereas

the accident took place on 09.11.2001.

8. During his cross-examination, RW3 has stated that the insurance

policy was valid from 16.11.2000 to 15.11.2001 before its cancellation.

Nothing has been produced on record by the appellant that cancellation of

policy was duly informed to the respondent No.2/owner of the offending

vehicle and the concerned RTO as well. Though a copy of information to

RTO regarding cancellation of policy is on record, neither AD card in

support of service of notice has been placed on record by the appellant nor

any evidence was led to prove that any information regarding cancellation of

policy was given to the concerned RTO. Moreover, notice under Section

XII Rule 8 CPC could not be served as the same received back undelivered

with the report 'the recipient left the address without leaving the further

address'.

9. It is admitted fact that if the Insurance Company issues the cover note

then the insurance policy will also be issued unless the cover note is

cancelled; and if the cover note issued by the Insurance Company is

cancelled, then there is no question of issuing the insurance policy against

the offending vehicle. Admittedly, in the present case, the insurance policy

was also issued.

10. In view of the above discussion, I do not find any merit in both these

appeals. Hence, the same are dismissed.

11. The Registry of this Court is directed to release the statutory amount

in favour of the appellant/Insurance Company and the balance compensation

amount in favour of the respondent No.1/injured on taking necessary steps

by them.

CM Nos.18866 & 19852 of 2010 (both for stay) in MAC.APP. Nos.699 & 743 of 2010 With the dismissal of the appeals, these applications have become infructuous. The same are accordingly dismissed.

SURESH KAIT, J.

MARCH 10, 2014 Sb/RS