United India Ins Co Ltd., ... vs Green Wood High School, Warangal ...
2023 Latest Caselaw 3636 Tel

        HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                            M.A.C.M.A.NO.397 OF 2015

JUDGMENT:

Heard learned counsel Sri Mr. A.V.K.S.Prasad, for the

appellant-insurance company. Respondent Nos.2 and 3 herein

remained ex parte before the Tribunal, therefore, notices to

respondents 2 and 3 are dispensed with in the light of decision of

Meka Chakra Rao vs. Yelubandi babu Rao @ Reddemma and

others 1 . Notice to claimant is served, however, there is no

representation on behalf of claimant.

2. The present appeal has been filed by the appellant-insurance

company aggrieved by the award passed by the Motor Accident

Claims Tribunal-cum-I Additional District Judge, Warangal (for

short, 'MACT') in M.V.O.P.No.712 of 2008, dated 23.12.2014 and

thereby seeking to set aside the award against the insurance

company.

3. The brief factual matrix of the present appeal is as under.

4. The claimant, respondent no.1 herein, is a School,

represented by its Correspondent and it is contended that it had

constructed a big gate in front of the school by spending lakhs of

2001 (1) ALT 495 (DB) LNA,J MACMA No. 397 of 2015

rupees. On 04.06.2007 at about 2.00 p.m., heavy lorry crane

No.MH-06-AF-1418, belonging to the 2nd respondent herein,

insured with appellant and respondent No.3 herein, was driven by

its driver in rash and negligent manner and while taking reverse

gear, dashed the gate of the school, as a result, the entire gate was

completely damaged and the supporting walls developed cracks.

The claimant filed O.P. claiming compensation of Rs.2,37,000/-

from the owner of the vehicle and the insurance company.

5. The respondent Nos.1 and 2 before the MACT remained

ex parte and appellant-insurance company filed counter denying

the allegations made in the claim petition and contended that the

driver of the vehicle has violated the terms and conditions of the

policy and that no insurance coverage as per M.V.Act for the

property damaged to the third party and prayed for dismissal of

the claim petition.

6. Basing on the above pleadings, the MACT had framed the following issues:

i) Whether the accident was due to rash and negligent driving on the part of the driver of the heavy lorry bearing no.MH-06-AF- 1418 ?

ii) Whether the petitioner is entitled for damages, if so, what amount and from whom ?

LNA,J MACMA No. 397 of 2015

iii) To what relief ?

7. In order to substantiate the case, on behalf of the claimant,

P.Ws.1 and 2 were examined and Exs.A1 to A8 were marked. On

behalf of the 3rd respondent-insurance company, R.W.1 was

examined and Exs.B1 to B3 were marked.

8. The MACT after considering the evidence placed on record,

came to conclusion that the accident took place due to the rash

and negligent driving of the driver of the vehicle and awarded

compensation of Rs.25,000/- towards damages.

9. The owner of the vehicle and the Insurance Company i.e.,

respondents 1 to 3 were held to be jointly and severally liable to

pay the said compensation with costs and interest @ 6% per

annum from the date of petition till the date of realization.

10. During the course of hearing of appeal, learned counsel for

appellant-insurance company mainly contended that cover note

and other particulars furnished by the claimant are not tallying

with its record and that MACT ought to have directed the claimant

to furnish correct policy particulars. The appellant denied the

subsistence of any valid policy to the crime vehicle. To support the

said plea, the insurance company examined RW.1, who LNA,J MACMA No. 397 of 2015

categorically denied the existence of policy coverage to the crime

vehicle. The appellant issued notice to the claimant to furnish the

details of policy to the vehicle in question, that having received the

notice, claimant failed to furnish the details and he was remained

ex parte and therefore, the MACT ought to have decided the case

against the owner of the crime vehicle.

11. The learned counsel for appellant further submitted that

without appreciating the evidence of RW.1, the MACT committed

error in fastening the liability upon the insurance company to pay

compensation. The learned counsel for appellant mainly contended

that only cover note was issued and no such policy was issued.

Therefore, insurance company is not liable and thus, the MACT

erred in holding that insurance company is liable for payment of

compensation and finally, prayed to allow the appeal setting aside

the claim against the insurance company. In support of his

contention, he placed reliance in the case of United India Insurance

Company Ltd. Vs. B.Jaya Lakshmi and others 2.

Consideration:

12. With regard to cover note number and other particulars

furnished by the claimant, the MACT on perusal of copy of cover

2004 (4) ALD 99 LNA,J MACMA No. 397 of 2015

note, found that the proposal form was issued on 08.12.2006 in

respect of crime vehicle bearing No.MH-06-AF-1448 in favour of

M/s.Gurukrupa Crane Services, and the particulars are also

mentioned in the cover note. Therefore, the MACT held that cover

note is valid as it was issued in respect of the crime vehicle and

when the policy was subsisting on the basis of cover note at the

time of the accident, the respondents 2 and 3 being insurers are

liable for payment of compensation. Therefore, the MACT rejected

the contention of the insurance company that no policy was issued

with the cover note and ultimately held that respondents 1 to 3 are

liable to pay compensation.

13. The decision referred to and relied upon by the learned

counsel for the appellant do not apply to the facts of the present

case and same is distinguishable on facts.

14. In National Insurance Company Limited vs. Abhaysing

Pratapsing Waghela and others 3 , the Hon'ble Apex Court at

paragraph-17 held that 'If a cover note had been issued which in

terms of clause (b) of sub-section (1) of Section 145 of the Act would

come within the purview of definition of certificate of insurance; it

(2008) 9 SCC 133 LNA,J MACMA No. 397 of 2015

would also come within the purview of the definition of insurance

policy. If a cover note is issued, it remains valid till it is cancelled.'

15. In the light of above decision of Hon'ble Apex court, issuance

of cover note itself is sufficient to fasten the liability of insurance

company and therefore, the insurance company is liable to pay

compensation.

Conclusion:

16. In the light of factual matrix and legal position, in considered

opinion of this Court, there is no irregularity in the award passed

by the MACT and further, the appellant failed to make out any

ground warranting this Court to interfere with the award passed by

the MACT. Therefore, the appeal fails and is accordingly dismissed,

affirming the award passed by the MACT. There shall be no order

as to costs.

17. Pending miscellaneous applications if any shall stand closed.

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____________________________________ LAXMI NARAYANA ALISHETTY,J Date: 07 .11.2023 kkm LNA,J MACMA No. 397 of 2015

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

M.A.C.M.A.NO.397 OF 2015

Date: 07.11.2023

kkm