The Divisional Manager vs Tmt.Angammal
2021 Latest Caselaw 8996 Mad

                                                        1

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             Dated: 01.04.2021

                                                   CORAM:

                            THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI

                                       C.M.A(MD)No.1251 of 2014
                                                   and
                              MP(MD)No.4 of 2014 and CMP(MD)No.2439 of 2021


                      The Divisional Manager,
                      Divisional Office,
                      The Oriental Insurance Company Limited,
                      Thdupuzha,
                      Kerala State.                   : Appellant/2nd Respondent

                                                      Vs.

                      1.Tmt.Angammal
                      2.Bencil Reddy                        : R1 and R2/Petitioners 1 and 2
                      3.Jiji Mathew                         : R3/1st Respondent

                             PRAYER: Civil Miscellaneous Appeal has been filed under
                      Section 173 of Motor Vehicles Act against the award, dated
                      18.12.2012 made in MCOP No.157 of 2010 on the file of Motor
                      Accident Claims Tribunal (Sub Court), Palani.


                                  For Appellants        : Mr.C.Jawahar Ravindran

                                  For R1 and R2         : Mr.D.Venkatesh

                                 For 3rd Respondent     : No appearance




http://www.judis.nic.in
                                                      2

                                             JUDGMENT

Challenge made in this appeal is to the award, dated

18.12.2012 made in MCOP No.157 of 2010 on the file of Motor

Accident Claims Tribunal (Sub Court), Palani. Pending appeal, the

Appellant Insurance Company filed MP(MD)No.4 of 2014 to receive

the documents and to mark the documents as Exs.R1 to R6 in

MCOP No.157 of 2010 on the file of the Motor Accident Claims

Tribunal (Sub Court), Palani and also filed CMP(MD)No.2439 of

2021 to receive the Additional Written Statement in MCOP No.157

of 2010 on the file of the Motor Accident Claims Tribunal (Sub

Court), Palani.

2.Since the matter arises out of the MCOP NO.157 of 2010,

the Miscellaneous Petitions were heard along with this appeal and

disposed of along with this appeal by a common order.

3.The facts of the case are that on 18.05.2010, while the

deceased Krishna Reddy was riding his Hero Honda motor cycle in

Palany-Udumalai main road near Thalai Kanmal, the Mahendra Van

KL-36-A-5546 came in a rash and negligent manner from the

opposite direction and dashed against the deceased. Due to the

http://www.judis.nic.in

accident, Krishna Reddy succumbed to injuries. The legal heirs of

the deceased filed a claim petition seeking compensation of Rs.

10,00,000/- on the ground that the offending vehicle caused the

accident.

4.The claim was opposed by the Appellant Insurance

Company disputing the manner of accident and their liability to pay

compensation.

5.The Tribunal, upon consideration of oral and documentary

evidence, came to the conclusion that the driver of the offending

vehicle was responsible for the accident and awarded

compensation of Rs.4,50,000/-. Aggrieved by the award of the

tribunal, the Appellant Insurance Company is before this court.

6.Heard the learned counsel appearing on either side and

perused the materials available on record.

MP(MD)No.4 of 2014:-

7.The learned counsel for the petitioner/appellant Insurance

Company submitted that the petitioner/appellant filed the above

http://www.judis.nic.in

appeal challenging the liability fastened against the petitioner

Insurance Company to pay compensation to the claimants/the

respondents 1 and 2 herein and after the judgment pronounced by

the tribunal, the appellant Insurance Company has requested the

policy issuing office (I.e) Divisional Office, Thodupuzha to confirm

the 64 VB compliance. At that time, the appellant Insurance

Company came to understand from Thodupuzha office about the

dishonor of premium cheque for the 3rd respondent's Van and about

the cancellation of policy, vide endorsement No.

442600/31/2010/11066/001, dated 21.11.2009 due to non payment

of premium and in case, if the cheque was dishonored due to

insufficient fund, immediately intimation about the dishonor of

cheque will be given and the policy will be cancelled and in this

case also, dishonor intimation was sent to the 3rd respondent/owner

of the Van and policy was cancelled and the appellant Insurance

Company is not aware about the above fact and the same was not

put forth before the tribunal. Further, the documents like

dishonored South Indian Bank cheque, bank return memo, dishonor

intimation letter etc. were not produced and marked on the side of

the appellant Insurance Company before the tribunal and as the

appellant Insurance Company had knowledge about the dishonor of

http://www.judis.nic.in

premium cheque and about the cancellation of insurance policy, it

is necessary for the appellant Insurance Company to produce

evidence and documents to establish the case of the appellant

Insurance Company before the tribunal and prays that the petition

has to be allowed.

8.On the other hand, the learned counsel appearing for the

respondents 1 and 2/claimant submitted that as per Order 41 Rule

27 of the Civil Procedure Code, the petitioner/appellant Insurance

Company shall not be entitled to produce additional evidence

whether oral or documentary, in the Appellate Court on the

grounds, that the trial court has refused to admit the evidence,

which ought to have been admitted, or that the party, who seeking

reception of additional evidence, establishes that even after due

diligence, such evidence was not within his knowledge or could not

be produced by him before the Trial court, even after the exercise

of due diligence or that the appellate court requires any such

documents to be produced for substantial cause. But in the present

case, none of the above conditions were fulfilled and the

petitioner/appellant Insurance Company having failed to make any

averments regarding the payment of premium by way of cheque,

http://www.judis.nic.in

subsequent dishonor of cheque and the communication of the same

through letter by registered post to the owner of the vehicle in the

counter filed by them before the trial court, cannot be permitted to

mark those documents to prove the aspect of dishonor of cheque

without any pleadings and prays that the petition may be

dismissed.

9.The main contention of the petitioner/appellant Insurance

Company is that the cancellation of the policy for the offending

vehicle was came to their knowledge, when they sent the order

copy to the Divisional Office, which is at Kerala and then to prove

the above contention, they filed additional documents and hence,

the above documents can be accepted.

10.But the respondents 1 and 2/claimants stated that the

Divisional Office already known the cancellation of policy during

the year 2009, but on behalf of the 2nd respondent counter was filed

during the year 2012 and hence, the Insurance Company very well

got the knowledge that the policy for the offending vehicle was

cancelled and failure on the part of the Divisional Office to convey

the above facts to the Branch office is fault only on the part of the

Divisional Office of the Insurance Company.

http://www.judis.nic.in

11.In this case, the owner of the offending vehicle is one Jiji

Mathew. The case of the petitioner/appellant Insurance Company is

that the owner of the offending vehicle gave a cheque for the

payment of Insurance for the offending vehicle, but the above

cheque was returned for insufficient of funds and the Divisional

office took steps to intimate the dishonor of cheque to the owner of

the offending vehicle and the owner of the offending vehicle, after

receipt of the intimation, failed to pay the premium and the policy

given for the offending vehicle was subsequently cancelled and

hence, at the time of accident, the offending vehicle has no

insurance coverage and hence, the Insurance Company is not liable

to pay the compensation.

12.In this petition, the petitioner/appellant Insurance

Company stated that as they are only dealing office, they were not

aware of the dishonor of cheque for the payment towards insurance

of the offending vehicle. To prove that the branch office of the

Insurance Company has got knowledge about the dishonor of the

cheque, no document was filed on the side of the respondents 1 and

2/claimants. Hence, it reveals that the Branch Office of the

Insurance Company has not aware of the dishonor of the cheque

http://www.judis.nic.in

and further, the cancellation of the insurance policy. To prove the

above fact, the petitioner/appellant Insurance Company has filed

some documents and hence, they are necessary for proper

adjudication. The reasons stated in the petition are acceptable.

Accordingly, MP(MD)No.4 of 2014 is allowed and the trial court is

directed to receive the additional documents to be produced on the

side of the Insurance Company and marked as exhibits in MCOP

No.157 of 2010 on the file of the Motor Accident Claims Tribunal

(Sub Court), Palani.

CMP(MD)No.2439 of 2021

13.The petitioner stated that at the time of enquiry, they are

not aware of the dishonor of cheque and further, the cancellation of

cheque and only after pronouncement of the judgment by the

tribunal, the Divisional Office informed about the dishonor of

cheque and further the cancellation of the insurance policy and in

order to state about the fact, it is necessary for them to file

additional counter and prays that the additional counter has to be

accepted by the tribunal.

http://www.judis.nic.in

14.It is opposed on the side of the respondents 1 and

2/claimants that the failure on the part of the Divisional Office is

not a ground for the Insurance Company to file this petition to

receive the additional written statement and hence, the additional

counter cannot be accepted. Already, this court has allowed

CMP(MD)No.4 of 2014, which was filed by the Insurance Company.

Further, the petitioner/appellant Insurance Company in this

petition stated that to prove the dishonor of the cheque and the

cancellation of the policy, the filing of additional counter is

necessary. Hence, for proper adjudication of the matter, additional

counter is necessary and in order to state about the facts, filing of

additional counter is necessary. The reasons stated in the petition

are acceptable. Accordingly, the CMP(MD)No. 2439 of 2021 is

allowed. The trial court namely the Motor Accident Claims Tribunal

(Sub court), Palani is directed to receive the additional written

statement to be filed on the side of the Insurance Company in

MCOP No.157 of 2010.

CMA(MD)No.1251 of 2014:-

15.The learned counsel for the appellant Insurance Company

submitted that the above appeal challenging the liability fastened

against the Insurance Company to pay compensation to the

http://www.judis.nic.in

claimants and after the judgment pronounced by the tribunal, the

appellant came to understand from the Thodupuzha office about

the dishonor of premium cheque of the owner of the offending

vehicle and also the cancellation of the policy and hence, the

relevant documents were not produced in the course of trial and

hence, in order to mark those documents on the side of the

appellant Insurance Company, the matter may be remitted back to

the tribunal for fresh disposal.

16.The learned counsel appearing for the respondents 1 and

2/claimants that the appellant Insurance Company failed to mark

certain documents even though sufficient opportunity was given by

the tribunal and hence, the award of the tribunal has to be

confirmed by dismissing the appeal.

17.The main contention of the appellant Insurance Company

is that the cancellation of the policy for the offending vehicle was

came to their knowledge when they sent the order copy to the

Divisional Office which is situated at Kerala and hence, the

appellant Insurance Company is to be given opportunity to mark

certain documents before the tribunal and for that, the matter may

be remitted back to the tribunal for fresh disposal.

http://www.judis.nic.in

18.In this case the owner of the offending vehicle is one Jiji

Mathew. The case of the Appellant Insurance Company is that the

owner of the offending vehicle gave a cheque for the payment of

Insurance for the offending vehicle, but the above cheque was

returned for insufficient of funds and the Divisional Office took

steps to intimate the dishonor of cheque to the owner of the

offending vehicle and the owner, after receipt of the intimation,

failed to pay the premium and hence, the policy given for the

offending vehicle was subsequently cancelled and hence, it is

presumed that at the time of accident, the offending vehicle has no

insurance coverage.

19.In view of the above facts, this court is of the considered

view for proper adjudication of the matter, the matter is to be

remitted back to the tribunal for fresh disposal, after marking

certain documents on the side of the Insurance Company and also

file additional counter to that effect.

20.In the result, the Civil Miscellaneous Appeal is allowed

and the judgment and decree, dated 18.12.2012 passed in MCOP

No.157 of 2010 by the Motor Accident Claims Tribunal (Sub Court),

http://www.judis.nic.in

Palani, is set aside. The case is remitted back to the trial court and

the trial court is directed to dispose of the case afresh, after

marking additional documents and also perusing the additional

written statement of the Insurance Company and on merits and in

accordance with law, within a period of three months from the date

of receipt of a copy of this order. The Registry is directed to return

the original documents filed in MP(MD)No.4 of 2014 to the learned

counsel appearing for the Appellant Insurance Company so as to

mark the same in connection with MCOP No.157 of 2010 before the

Tribunal as exhibits, after retaining the copy of the same.

01.04.2021 Index:Yes/No Internet:Yes/No er

http://www.judis.nic.in

T.KRISHNAVALLI.J.,

er

To

1.The Motor Accidents Claims Tribunal/ The Principal Subordinate Court, Palani.

2.The Record Keeper, V.R Section, Madurai Bench of Madras High Court, Madurai.

C.M.A(MD)No.1251 of 2014 and MP(MD)No.4 of 2014 and CMP(MD)No.2439 of 2021

01.04.2021

http://www.judis.nic.in