K.T.THOMAS, R.P.SETHI
National Insurance Company LTD. – Appellant
Versus
Seema Malhotra – Respondent
Key Points: - The judgment holds that when an insured’s cheque towards premium is dishonoured, the insurer is not liable to honour the contract of insurance against the insured (para discussing non-performance due to non-payment) (!) (!) . - Sub-section 64-VB of the Insurance Act and sections of the Contract Act govern that a contract based on reciprocal promises cannot be enforced if the consideration (premium) is not received or paid, especially when the cheque bounces (paras explaining Sections 51, 52, 54 and related analysis) (!) (!) (!) . - If the insured pays the premium later, before the accident date, the situation may differ; otherwise the insurer is justified in refusing to pay the insured claim (para 20) (!) . - The insurer remains liable to third-party claims under Motor Vehicles Act provisions, but not to the insured for non-payment scenarios (discussion around Chapter X and third-party liability) (!) (!) . - The Division Bench’s view that cancellation from the date of cheque dishonour may affect liability vs. what the Supreme Court held (insurer not liable to the insured when cheque dishonoured and cancellation occurs) (!) (!) (!) . - The appeal was allowed; the insurer’s position was upheld (final holding) (!) (!) .
JUDGMENT
Thomas, J.-Leave granted.
2. Under a contract of insurance the insured gave a cheque to the insurer towards the first premium amount, but the cheque was dishonoured by the drawee bank due to insufficiency of funds in the account of the drawer. Is the insurer liable in such a situation to honour the contract of insurance? There is no dispute that the insurer is liable as against third parties because it is covered by the statutory provisions contained in Chapter X of the Motor Vehicles Act 1988. But the insurer vehemently disputed the liability when the claim is made by the insured himself or his legal heirs, without any third party being involved. The avoid confusion we may point out that the insurance company has no dispute that the claims, if any, made by the kith and kin of the insured for the injuries sustained by them in the accident including the claims made by the legal representatives of the deceased in such accident would also be treated as third party claims.
3. A division bench of the High Court of Jammu and Kashmir held, on the facts of the case, that the insurance company is still liable because it chose to cancel the policy with effect from the date of bouncing
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