Hdfc Ergo General Insurance Co. ... vs Dhani Devi
2022 Latest Caselaw 7845 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1286/2020

Hdfc Ergo General Insurance Co. Ltd., Jodhpur Office At N.k. Tower , Chopasni Road, Jodhpur Through Its Authorized Representative

----Appellant Versus

1. Dhani Devi W/o Late Sh. Hinduji, B/c Bawri (Mungiya) R/o Near Masjid , Village Swaroopganj , Tehsil Pindwara , Distt. Sirohi , Presently Residing Near St. Paul School, Sirohi

2. Kheta Ram S/o Late Mohanlal, Minor Through Their Guardian Grand-Mother Smt. Dhani Devi , B/c Bawri (Mungiya) R/o Near Masjid , Village Swaroopganj , Tehsil Pindwara , Distt. Sirohi , Presently Residing Near St. Paul School, Sirohi

3. Mst. Kavita D/o Late Mohanlal, Minor Through Their Guardian Grand-Mother Smt. Dhani Devi , B/c Bawri (Mungiya) R/o Near Masjid , Village Swaroopganj , Tehsil Pindwara , Distt. Sirohi , Presently Residing Near St. Paul School, Sirohi

4. Kamlesh D/o Late Mohanlal, Minor Through Their Guardian Grand-Mother Smt. Dhani Devi , B/c Bawri (Mungiya) R/o Near Masjid , Village Swaroopganj , Tehsil Pindwara , Distt. Sirohi , Presently Residing Near St. Paul School, Sirohi

5. Bharat Kumar S/o Shri Amraram Guwariya, R/o Village Sanwara -R , P.s. Rohida , Tehsil Pindwara , Distt. Sirohi (Owner-Cum--Driver)

----Respondents

For Appellant(s) : Mr. Jagdish Chandra Vyas For Respondent(s) : Mr. Ravi Panwar

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Order

25/05/2022

(2 of 4) [CMA-1286/2020]

Heard learned counsel for the parties.

The present Misc. Appeal has been preferred by the

appellant-Insurance Company against the judgment and award

dated 11.02.2020 passed by the learned Judge, Motor Accident

Claims Tribunal, Sirohi in Motor Accident Claim Case No.44/2013,

whereby the learned Tribunal decided issue No.3 against the

appellant-Insurance Company and has affirmed the earlier award

dated 01.09.2018 for a sum of Rs.8,85,500/-.

Briefly stated the facts of the case are that earlier claim

petition No.44/2013 was decided by the learned Tribunal vide

judgment and award dated 01.09.2018, whereby the learned

Tribunal awarded a compensation of Rs.8,85,500/- in favour of the

claimants holding that the appellant-Insurance Company is liable

to indemnify the same. Against the said judgment and award

dated 01.09.2018, the appellant-Insurance Company preferred

SBCMA No.3079/2018 before this Court and this Court vide order

dated 18.11.2019 set aside the award dated 01.09.2018 to the

extent of findings recorded on issue No.3 and remanded the

matter back to the learned Tribunal with the directions to decide

the same afresh. This Court also permitted both the parties to

adduce their evidence in support of their contentions in respect of

issue No.3.

Thereafter, in compliance of the directions issued by this

Court, the learned Tribunal has decided issue No.3 afresh by the

impugned judgment and award dated 11.02.2020 holding that the

appellant-Insurance Company is liable to pay the compensation,

hence the present appeal.

Learned counsel for the appellant-Insurance submitted that

the accident occurred on 22.10.2012, whereas the insurance

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policy came into force on 23.10.2012 at 1.30 pm and premium

thereof was paid on 18.10.2012. It is submitted that the copy of

the policy (Ex.12) submitted by the respondents-claimants are

fake one. Thus, learned counsel for the appellant-Insurance

Company prays that effect and operation of the impugned

judgment and award may be stayed as this Court in the similar

cases has passed interim orders. In support of his contentions,

learned counsel relied upon following orders passed by this Court

granting interim orders:

1. S.B. Civil Misc. Appeal No.1044/2020 (order dt 5.12.2020)

2. S.B. Civil Misc. Appeal No.239/2022 (order dt 28.4.2022)

3. S.B. Civil Misc. Appeal No.210/2022 (order dt 17.5.2022)

Mr. Ravi Panwar learned counsel appearing for the

respondents-claimants vehemently opposed the prayer made by

the learned counsel for the appellant-Insurance Company and

submits that the impugned judgment and award dated 11.02.2020

has rightly been passed by the learned Tribunal taking into

consideration the entire facts and circumstances of the case. He

submits that the respondents-claimants procured the certified

copy of the policy from the challan papers submitted by the

investigating agency and, thereafter, exhibited as Ex.12. It is

submitted that from perusal of Ex.12 it is clear that the same

came into force on 22.10.2012 at 10.30 AM and therefore, the

said policy (Ex.12) is genuine one, which is fortified from the

statements of NAW-1 Pankaj Sharma. He while relying upon

Section 64 VB of the Insurance Act, 1938 which provides that no

risk to be assumed unless premium is received in advance submits

that on the date of accident, the vehicle in question was insured

with the appellant-insurance company. Learned counsel for the

(4 of 4) [CMA-1286/2020]

claimants-respondents has relied upon the judgment of the

Hon'ble Supreme Court delivered in the case of Ashatai vs.

Shriram City Union Finance Ltd. (Civil Appeal No.3962/2019)

decided on 16.04.2019.

I have heard learned counsel for the parties and scanned the

record.

From the record, it appears that respondent no.5 has not

served.

Therefore, issue fresh notice to the respondent no.5,

returnable within six weeks.

Having regard to the facts and circumstances of the case and

after considering the rival submissions made by the learned

counsel for the parties, this court deems it appropriate to pass

interim order.

Hence, in the meanwhile, the execution of the impugned

award dated 11.02.2020 qua the appellant-Insurance Company

shall remain stayed.

(MADAN GOPAL VYAS),J 221-Jagjeet/-

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