Shahid Khan & Anr vs Shalabh Kaushik & Anr (M/S Tata Aig ...
2020 Latest Caselaw 336 Del

$~5
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                    Decided on: 23.01.2020.
+      MAC.APP. 976/2015, CM APPL. 15882/2018, CM APPL.
       15884/2018 & CM APPL. 2817/2019
       SHAHID KHAN & ANR                                     .....Appellants
                          Through:     Ms. Sushma Sharma, Advocate.
                          versus

       SHALABH KAUSHIK & ANR (M/S TATA AIG GENERAL
       INSURANCE CO LTD)                       .....Respondents
                    Through: Mr. Satyam Saini, Advocate for R-1.
                             Mr. Sameer Nandwani and Mr.
                             Abhay Singh Bhadoria, Advocates for
                             R-2.

CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)

1. This appeal impugns the judgment dated 31.08.2015 passed by the learned MACT in Case No. 93/14 (Old Case No. 966/2006), which has fastened the liability to pay compensation upon the appellants despite there being a valid insurance cover at the time of the accident.

2. The issue has been dealt with the impugned order as under:

"19. APPORTIONMENT OF LIABILITY:

Ld. Counsel for insurer has taken the defence that the respondent is not a necessary party to the petition as at the time of the alleged accident the vehicle in question i.e. DL 4C-P6276 was not insured with it under the policy No. 0100151286 dated 09/09/2015. Further the receipt No. 01-

00-0245676 showing dated 06/08/2005 is a false and fabricated. It is further submitted that the cheque given by the owner to the insurance company in lieu of the premium of the insurance policy through cheque was dishonoured and hence insurance company is not liable for payment.

20. In order to prove its defence, the insurer has examined its own officer Sh. Rajesh Kumar as R3W1. He has proved the notice u/o 12 R8 CPC vid Ex. R3W1/A; Registered postal receipt is Ex. R3W1/B; certified copy of the insurance policy Ex. R3W1/C. He has also deposed that insurance company had issued a insurance policy no. „0100151285 dated 09/09/2005 for the offending vehicle No. DL 4CP-6276 for which the owner/ respondent No.2 made the payment of insurance premium by cheque No. 096695 but the said cheque on presentation for encashment was dishonoured by the banker on the ground insufficient funds vide its Banker memo dated 12/09/2005. Accordingly, the insurance company immediately intimated the respondent No2/ owner and concerned RTA office about the dishonour of cheque and cancellation of insurance policy since inception 09/09/2005 vide its letter. Copy of cheque towards insurance premium is Ex. R3W1/D; the copy of letter to insured informing about dishonour of cheque and cancellation of insurance policy is Ex. R3W1/G ; copy of the dispatch register showing relevant entry at column No. 84 is Ex. R3W1/H. He has further deposed that after the accident, on 27/10/2005, the owner/ respondent No.2 again approached to the respondent company for obtaining the fresh insurance coverage in respect of the vehicle. The respondent company after obtaining the fresh proposal and after getting the vehicle pre inspected issued afresh insurance policy No. 0100355132 w.e.f 27/10/05 to 26/10/06 vide receipt No. 01-00-00245676 dated 28/10/2005. Copy of the proposal form is Ex. R3W1/1, copy of the pre-inception report is Ex. R3W1/J; copy of the premium receipt is Ex. R3W1/K.

21. On the contrary, the owner of the vehicle had taken the defence that after issuance of the cheque towards

premium to the agent of the company. In order to establish defence, the respondent No.2/ owner of the offending vehicle has examined himself as R2W1 who had filed the documents i.e. cover note, Ex. R2W1/A; Renewal Cover note Ex. R2W1/B; certificate of insurance, Ex. R2W1/Bi.

22. The owner has also examined Sh. Harish Chand as R2W2, the Agent of the insurance company. He has also examined another witness Sh. 8. P. Singh Handwriting &Finger Print Expert as R2W3.

23. I have gone through the testimony of the witnesses and perused the record.

24. The date of accident is 08/10/2005. The agent examined by the owner as R2W2 has deposed that he has not visited the owner on 06/09/05. He has further deposed that he has not received any payment through cash. He has also deposed that on receipt Ex. R2W1/R2/1 the date was not in his handwriting. He has further deposed that whenever he issues a receipt he issues with a covernote. He has further deposed that the receipt Ex. R3V\/1/R2/1 might be issued by him against the amount received on 27/10/2005. The owner has not taken any action against the said agent who did not return his cheque and as per claim of the owner, kept the cheque till date. The owner did not given any cash payment as on 06/09/2005 as claimed by him. The owner could not placed on record the cover note for the said period 09/09/2005 to 08/09/2006. He had placed on record the cover note of the vehicle for the other period of insurance. The claim of the owner that he did not get his vehicle pre inspected for getting the fresh insurance w.e.f 27/10/2005 i.e after the date of accident is not reliable at all. The question arises as to how the pre- inspection of the vehicle and taking chasis number impression appearing on the pre-inspection report is available without the vehicle actually being physically inspected, hence the statement of the owner that he did not get the vehicle pre-inspected at the time of fresh insurance on 27/10/05 is factually wrong and incorrect. The other

question is as to why and who will pay the premium in cash after the date of accident except the owner."

3. It is the appellants' case that the earlier insurance policy was to lapse on 08.09.2005. It was renewed on 09.09.2005 vide receipt no. 01-00- 00245676 dated 06.08.2005. The premium for the said renewal was paid by way of a cheque, which upon presentation was dishonoured. Upon such information being received by appellant no.2-the owner of the vehicle, he claims to have paid the requisite amount by way of a cash receipt on 06.09.2005 bearing no. 0316545. The policy number is mentioned therein and the date of issuance of the receipt is also mentioned.

4. As per the temporary receipt, the money was received apropos the earlier policy with a cover note bearing no. 0100151286, valid for the period of 09.09.2005 to 08.09.2006. In effect, the monies were received in continuation of the previous policy without a lapse of a single day. The accident happened a month later on 08.10.2005.

5. For an unsuspecting consumer, nothing more is required to be done as a regular policy would have been issued in due course. There is no denial of issuance of the said temporary receipt. The non-issuance of the insurance policy cannot be held against appellant no. 2-the owner of the vehicle. The so called inspection of the vehicle on 27.10.2005 does not even mention the chassis number of the vehicle.

6. The Court would note that the said receipt mentions the cover note/certificate number as 0100151286. The same number is mentioned in the renewal endorsement of the policy issued on 22.11.2005. In effect, the policy started running from the date the receipt was issued. The aforesaid receipt would obviously be a part of the booklet held by the agent of the

insurer. He has not complained to/or notified anyone that the said receipt book had been misplaced or that particular folio had been stolen or misused. The presumption, therefore, would be that the insurer's authorized agent had issued it validly. If it was otherwise then the insurer should have led evidence apropos mala fides of its agent.

7. The subsequent policy quotes the same insurance certificate number, as mentioned in the receipt. The letter of endorsement of renewal makes the policy valid from 09.09.2005 till 08.09.2006, therefore, at the time of the motor accident, the policy was valid.

8. That being the position, the appellants would be liable to be indemnified against third-party claims by the insurer. In the circumstances, the insurer is liable to pay the amounts. The appellants have deposited the awarded amount before this Court, of which 50% has been released to the beneficiary of the Award. Let the remaining 50% of the amount be paid to the claimant by the insurer and the amount paid by the appellants be reimbursed to them by the insurer, alongwith corresponding interest accrued thereon which the appellants would have earned on the FDR, within a period of three weeks from the date of receipt of copy of this order. Liability to pay remaining 50% of the amount awarded by the learned Tribunal shall be on the insurer to be paid to the claimant directly into an account maintained in a bank near his place of residence.

9. The statutory amount, alongwith interest accrued thereon, be returned to the appellants.

10. The appeal is disposed-off in the above terms.

CM APPL. 15881/2018 (for delay in filing cross objections)

11. This application seeks condonation of delay in filing cross objections.

12. For the reasons mentioned in the application, the delay is condoned.

13. The application stands disposed-off.

CM APPL. 15880/2018 (cross objections by R-1)

14. Cross objection, if in order, be numbered as separate MAC appeal.

15. Issue notice.

16. The learned counsel named above accepts notice on behalf of the insurance company.

17. The appeal is taken up for disposal.

18. The learned counsel for respondent no. 1/claimant submits that during the pendency of this appeal, the said respondent/claimant spent certain monies towards his treatment for injuries suffered in the motor accident.

19. The same will be examined by the insurance company and to the extent that it is admitted, the monies shall be reimbursed to the said claimant, alongwith interest accrued thereon, within a period of four weeks from the date of receipt of copy of this order. The appeal is disposed-off in the above terms.

20. Should the claimant still have any grievance, it will be open to him to approach the Court.

NAJMI WAZIRI, J JANUARY 23, 2020 AB