Oriental Insurance Company ... vs Smt. Suraj Bai @ Rooprani
2022 Latest Caselaw 16251 MP

                                                       1
                               IN THE HIGH COURT OF MADHYA PRADESH
                                           AT JABALPUR
                                                   BEFORE
                                     HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                          ON THE 8 th OF DECEMBER, 2022
                                     MISCELLANEOUS APPEAL No. 1700 of 2007

                          BETWEEN:-
                          ORIENTAL INSURANCE COMPANY CHHATARPUR
                          THROUGH DIVISIONAL MANAGER, DIVISION OFFICE
                          BHAGWANGANJ,    DISTRICT SAGAR     (MADHYA
                          PRADESH)

                                                                            .....APPELLANT
                          (BY SHRI P.K. SAHU - ADVOCATE)

                          AND
                          1.    SMT. SURAJ BAI @ ROOPRANIDHANI RAM, AGED
                                ABOUT 31 YEARS, VILL.BANDA WARD NO.3 NEAR
                                OFF. OF MPEB BANDA SAGAR (MADHYA
                                PRADESH)

                          2.    KU. NEELUDHANI RAM, AGED ABOUT 13 YEARS,
                                OCCUPATION: TH.NG. SMT. SURAJ BAI @
                                ROOPRANI VILL.BANDA WARD NO.3 NEAR OFF.
                                OF MPEB BANDA SAGAR (MADHYA PRADESH)

                          3.    KU. AARATIDHANI RAM, AGED ABOUT 11 YEARS,
                                OCCUPATION: TH.NG. SURAJ BAI @ ROOPRANI
                                VILL.BANDA WARD NO.3 NEAR OFF. OF MPEB
                                BANDA SAGAR (MADHYA PRADESH)

                          4.    KU. SAPANADHANI RAM, AGED ABOUT 9 YEARS,
                                OCCUPATION: TH.NG. SMT. SURAJ BAI @
                                ROOPRANI VILL.BANDA WARD NO.3 NEAR OFF.
                                OF MPEB BANDA SAGAR (MADHYA PRADESH)

                          5.    KU. SHIVANIDHANI RAM, AGED ABOUT 3 YEARS,
                                OCCUPATION: TH.NG. SMT. SURAJ BAI @
                                ROOPRANI VILL.BANDA WARD NO.3 NEAR OFF.
                                OF MPEB BANDA SAGAR (MADHYA PRADESH)

                          6.    AJAY S/O DHANI RAM, AGED ABOUT 7 YEARS,
                                OCCUPATION: TH.NG. SMT. SURAJ BAI @
                                ROOPRANI VILL.BANDA WARD NO.3 NEAR OFF.
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 12/9/2022
6:52:43 PM
                                                       2
                                OF MPEB BANDA SAGAR (MADHYA PRADESH)

                          7.    SAURABH S/O DHANI RAM, AGED ABOUT 5
                                YEARS, OCCUPATION: TH.NG. SMT. SURAJ BAI @
                                ROOPRANI VILL.BANDA WARD NO.3 NEAR OFF.
                                OF MPEB BANDA SAGAR (MADHYA PRADESH)

                          8.    NANHI BAI @ BADI BAHOODHOBAN AHIRWAR,
                                AGED ABOUT 61 YEARS, VILL.BANDA WARD NO.3
                                NEAR OFFICE OF MPEB BANDA SAGAR (MADHYA
                                PRADESH)

                          9.    MOHD. RASHID KHAN S/O BHURE KHAN, AGED
                                ABOUT    49    YEARS, MAKARWAI, KAVARAI,
                                MAHOBA, (U.P.)

                          10.   SHEIKH HAKIM S/O SHEIKH IMAMI, AGED
                                ABOUT 27 YEARS, CHHATARPUR SABNEEGAR
                                MOHALLA WARD NO.20, CHHATARPUR (MADHYA
                                PRADESH)

                          11.   SHEIKH DAUDSHEIKH MUNWAR WARD NO.2,
                                CHHATARPUR (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                          (SHRI ASEEM DIXIT - ADVOCATE FOR RESPONDENTS NO.1 TO 8)

                                T h is appeal coming on for orders this day, t h e cou rt passed the
                          following:
                                                             ORDER

This miscellaneous appeal under Section 173 of the Motor Vehicles Act, 1988 is filed by the Insurance Company being aggrieved of award dated 24.01.2007 passed by the learned Third Additional Motor Accident Claims Tribunal, Sagar (M.P.) in claim case No.81/06 (Smt. Suraj Bai and others Vs. Mohd. Rashid Khan and others) on a singular ground that accident took place on 04.02.2006, insurance cover had expired on 20.01.2006, which was valid from 21.01.2005 to 20.01.2006. Thus, there was no insurance for the offending vehicle bearing registration No.MP16-A-5989 then, principles of pay and recover could not have been applied on the date of accident. Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 12/9/2022 6:52:43 PM

2. Thus, it is submitted by Shri Sahu, learned counsel for the appellant- insurance company that impugned award is illegal and arbitrary to this extent and be modified accordingly.

3. Shri Aseem Dixit, learned counsel for the claimants supports the award.

4. As far as factum of insurance is concerned, it is accepted and discussed by the learned Tribunal in para 18 of the award that on the date of the accident, there was no valid insurance cover for the offending vehicle.

5. Though none of the counsel has produced any judgment but, law laid down by the Supreme Court in case of Balu Krishna Chavan Vs. The Reliance General Insurance Company Ltd. and others, 2022 LiveLaw (SC) 932, where the ratio of law is that if the liability of the insurance company is decided and they are held not to be liable, ordinarily, there shall be no direction to ''pay and recover''.

6. Even Bombay High Court in case of The Oriental Insurance Company Ltd. Vs. Mr. Karbhari Daga Gaikwad and others , decided on 16.11.2021 in First Appeal No.522/2017, has held as under:-

''28. ... where post expiry of period of insurance there is a complete non renewal, to fasten the liability on the insurer on the basis of historical fact of the existence of a prior contract of insurance would be in complete derogation of the principles of construction of contract of insurance. The jural relationship between erstwhile insurer and insured gets snapped with the term of the insurance coming to an end''.

7. Thus, it is evident that when there was no jural relationship between the insurer and insured and the contract was already snapped on coming to an end of the policy on 20.01.2006.

8. The order of the Tribunal directing pay and recover, cannot be sustained Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 12/9/2022 6:52:43 PM

in the eyes of law. Impugned order deserves to be set aside and is set aside.

9. It is directed that the insurance company shall be exonerated. Liability to satisfy the award will be on the owner driver of the offending vehicle i.e. respondents No.9, 10 and 11 in this appeal.

10. In above terms, this miscellaneous appeal is allowed and disposed of.

11. Record of the Claims Tribunal be sent back.

(VIVEK AGARWAL) JUDGE pp

Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 12/9/2022 6:52:43 PM