Manager Cholamandalam Ms General ... vs Fulariyabai Kushwaha
2023 Latest Caselaw 5463 MP

                                 1       M.A. No.2615/2021


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 3rd OF APRIL, 2023
               MISC. APPEAL No. 2615 of 2021
BETWEEN:-

MANAGER CHOLAMANDALAM MS GENERAL
INSURANCE CO.LTD. IST FLOOR, CALCUTTA
AUTOMOBILES BESIDE GULJAR HOTEL
NAGPUR   ROAD    JABALPUR     (MADHYA
PRADESH)



                                           .....APPELLANT
(BY SHRI T.S. LAMBA- ADVOCATE)

AND

1.    FULARIYABAI KUSHWAHA W/O LATE
      JAGDISH PRASAD KUSHWAHA, AGED
      ABOUT 45 YEARS, R/O VILLAGE
      TAGAWAR    PS  BEOHARI,  TEHSIL
      JAISINGH NAGAR, DISTT. SHAHDOL
      (MADHYA PRADESH)



2.    KUNJBIHARI KUSHWAHA S/O LATE
      JAGDISH PRASAD KUSHWAHA, AGED
      ABOUT 30 YEARS, R/O VILLAGE
      TAGAWAR    PS  BEOHARI,  TEHSIL
      JAISINGH NAGAR, DISTT. SHAHDOL
      (MADHYA PRADESH)



3.    TEERATH   KUSHWAHA    S/O  LATE
      JAGDISH PRASAD KUSHWAHA, AGED
      ABOUT 28 YEARS, R/O VILLAGE
      TAGAWAR    PS  BEOHARI,   TEHSIL
      JAISINGH NAGAR, DISTT. SHAHDOL
      (MADHYA PRADESH)
                                  2                   M.A. No.2615/2021



4.   AJAY BIHARI KUSHWAHA S/O LATE
     JAGDISH PRASAD KUSHWAHA, AGED
     ABOUT 21 YEARS, R/O VILLAGE
     TAGAWAR    PS  BEOHARI,  TEHSIL
     JAISINGH NAGAR, DISTT. SHAHDOL
     (MADHYA PRADESH)



5.   RAJESH KUSHWAHA S/O LATE JAGDISH
     PRASAD KUSHWAHA, AGED BOUT 17
     YEARS THROUGH NATURAL GUARDIAN
     MOTHER FULARIYABAI KUSHWAHA
     W/O    LATE    JAGDISH    PRASAD
     KUSHWAHA, AGED ABOUT 45 YEARS,
     R/O VILLAGE TAGAWAR PS BEOHARI,
     TEHSIL JAISINGH NAGAR, DISTT.
     SHAHDOL (MADHYA PRADESH)



6.   RAMKHELAWAN       PANDEY    S/O  T.
     PANDEY, AGED ABOUT 43 YEARS, R/O
     VILLAGE TIHAKI, PS-BEOHARI, TAHSIL-
     JAISINGH NAGAR, DISTRICT-SHAHDOL
     (MADHYA PRADESH)



7.   RAMNARESH CHOUDHARY S/O BINU
     CHOUDHARY, R/O VILLAGE TAGAWAR,
     WARD NO15, PS-BEOHARI, TAHSIL-
     JAISINGH NAGAR DISTT.-SHAHDOL
     (MADHYA PRADESH)



                                                    .....RESPONDENTS
(SHRI MOHAN PATEL- ADVOCATE FOR RESPONDENTS NO. 1 TO 5 AND
SHRI BRIJESH MISHRA- ADVOCATE FOR RESPONDENTS NO. 6 & 7 )
      This appeal coming on for admission this day, the court passed the

following:

                               JUDGMENT

This miscellaneous appeal under Section 173 (1) of the Motor

Vehicle Act, 1988 has been filed against the award dated 28.07.2021 passed by Additional, Motor Accident Claims Tribunal, Jaisingh Nagar, District Shahdol in M.A.C.C. No.2097/2016.

2. Since the factum of accident is not in dispute, therefore, it is suffice to mention here that the deceased Jagdish Prasad Kushwaha aged about 55 years lost his life in a vehicular accident which took place on 16.05.2016 on account of turning over of Tempo upside down.

3. Challenging the award passed by the Claims Tribunal, it is submitted by the counsel for the appellant that the cheque issued towards the premium of Insurance Policy had stood bounced, therefore, there was no Insurance Policy. It is further submitted that the Tempo was being plied without any permit, therefore, the Insurance Company is not liable to pay the compensation amount.

4. Heard the learned counsel for the parties.

5. In order to adjudicate the submission with regard to the existence of Insurance Policy, the following dates are essential:-

(1) Insurance Policy was issued on 10.05.2016.

(2) The accident took place on 16.05.2016.

(3) Cheque bounced on 21.05.2016.

(4) Information to the owner was given on 25.05.2016.

6. It is the case of the parties that the owner had purchased the Tempo on 10.05.2016 and paid the Insurance Premium in cash to the dealer who issued the cover note. Later on, the dealer issued a cheque in

favour of the Insurance Company which stood bounced. However, in the meanwhile, the accident took place.

7. Under these circumstances, this Court is of the considered opinion that the Insurance Company cannot avoid its liability for the reason that not only the accident took place before the cheque was bounced but the cheque which had bounced was issued by the dealer and not by the owner of the vehicle. In fact the owner of the vehicle had paid the premium in cash to the dealer and it was the misdeed on the part of the dealer in not maintaining sufficient amount in his account. Under these circumstances, this Court is of the considered opinion that the claims tribunal did not commit any mistake by holding that the Insurance Policy was in existence on the date of accident.

8. It is next contended by the counsel for the appellant that since the Tempo was being plied for fair/reward purposes without there being any permit, therefore, there was blatant violation of the terms and conditions of the Insurance Policy and thus, the Insurance Company is not liable. It is further submitted that the owner Ramnaresh (D.W.-1) in paragraph 9 of his cross-examination has specifically admitted that he was not having any permit on the date of accident.

9. Per contra, it is submitted by the counsel for the owner that in fact in the same paragraph, the owner Ramnaresh (D.W.-1) has specifically stated that he had deposited the amount for issuance of permit, therefore, it cannot be said that the owner was not having permit.

10. Considered the submissions made by the counsel for the parties.

11. Depositing an amount for issuance of permit and issuance of

permit are two different aspects. The counsel for the appellant could not point out any provision of law which provides that in case, if the amount is deposited, then it shall be deemed that the permit has been issued. Accordingly, it is held that on the date of accident the Tempo was being plied without having any permit.

12. The Supreme Court in the case of Amrit Paul Singh and Another Vs. Tata AIG General Insurance Company Limited and Others, reported in (2018) 7 SCC 558 has held that in such a situation the Insurance Company shall be liable to satisfy the award with liberty to recover the same from the owner of the offending vehicle.

13. Accordingly, the award dated 28.07.2021 passed by Additional, Motor Accident Claims Tribunal, Jaisingh Nagar, District Shahdol in M.A.C.C. No.2097/2016 is hereby modified and it is held that the Insurance Company is not jointly and severely responsible to pay the compensation amount. However, the Insurance Company shall satisfy the award and shall be at liberty to recover the same from the owner.

14. With aforesaid modification, the award dated 28.07.2021 passed by Additional, Motor Accident Claims Tribunal, Jaisingh Nagar, District Shahdol in M.A.C.C. No.2097/2016 is hereby affirmed.

15. Accordingly, the appeal succeeds and is hereby allowed in part.

(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.04.06 17:10:32 +05'30'