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2017 Supreme(Bom) 2182
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Nutan D. Sardessai, J.
Shri Laxman Vithu Majik - Appellant
Vs.
Shri Anant Suryakant Wadkar - Respondent
First Appeal No. 93 of 2012
Decided On : 22-06-2017
Advocate Appeared:
For the Appellant : Shri J. Godinho
For the Respondent: Shri D. Gaonkar, Shri D. Pangam, Shri U.R. Timble
Headnote:Civil Procedure Code, 1908-Order V, Rule 15-Motor Vehicles Act, 1988, Section 166-Service of summons.-Service of summons on son of appellant is valid service on appellant.
A cursory perusal of the summons issued to the appellant/original respondent No. 2 would show that the summons was served by the bailiff who had gone to his residence on his son and he had accepted the service on his behalf. That it was not a valid service on the appellant when the said summons was duly served on the son with whom the appellant had no bad/strained relations and it was also not the case of the appellant that his son was not on talking terms with him and/or not residing with him. In these circumstances that it was not at all good service on the appellant and that he had no notice of the proceedings before the MACT cannot at all be entertained and on that count his submission that the impugned judgment and award ought to be reversed cannot be accepted.
Motor Vehicles Act, 1988 - Sections 146 and 147-Policy of Insurance.-Since policy issued by Insurer w.e.f. 15.6.2006 to 14.6.2006 without consent of insured hence tribunal directed to determine effective date of validity of policy.
The fact that the respondents No. 4 had suppressed the receipt of the premium on 14.6.2006 would not leave it open to the insurer to canvass that the appellant had not challenged the order. Considering thus the effect of the policy qua the lack of the consent of the insured to make the policy effective from a future date and the appellant having shown that the insured had effected the payment on 14.6.2006 at 12.04 hrs. i.e. much prior to the accident at 24.45 hrs., Court is satisfied that the appellants have amply justified the quashing of the order dated 10.10.2008 whereby the MACT held that there was no privity of contract between the respondents No. 4 and the insured at the time of the accident and dropped them from the proceedings. Having concluded that the MACT was in error to discharge the respondents No. 4 from the proceedings, Court is satisfied that it is a fit case to quash the impugned order and consequentially the impugned judgment and award and to remand the file to the MACT for a determination a fresh particularly on the aspect of the validity of the Insurance Policy.
Nutan D. Sardessai, J.
This is an appeal by the registered owner and later his legal heirs challenging the judgment and award dated 27/08/2009 passed by the learned MACT, Mapusa pursuant to which she partly allowed the petition and held the original claimant entitled to the sum of Rs. 17,31,514/- with interest while fastening the liability on the respondents no.1 & 2 and absolving the respondents no.4 insurer of the liability arising therefrom. It is the registered owner alone who is in appeal challenging the said judgment and award.
2. Shri J. Godinho, learned Advocate came to be heard on behalf of the appellants who assailed not only the impugned judgment and award dated 27/08/2009 but also the order dated 10/10/2008 pursuant to which the learned MACT had dropped the insurer i.e. the respondents no.4 from the proceedings on the premise that there was no insurance cover to the vehicle on the date of the accident. It was the contention of Shri Godinho, learned Advocate for the appellants that the accident had taken place on 14/06/2006 at 20.45 hrs. and as per the case of the respondents no.4, the Policy was effective from 15/06/2006 till the midnight of 14/06/2007 i.e. not covering the accident which had taken place on the night of 14/06/2006. It was his contention that the payment towards the premium of the Insurance Policy was effected on 14/06/2016 i.e. prior to the accident and therefore the learned MACT was in error to drop the respondents no.4 from the proceedings and to finally absolve them of the liability to indemnify the registered owner.
3. It was further the contention of Shri Godinho, learned Advocate for the appellants that the original appellant, since deceased, as the respondent no.2 in the proceedings before the MACT was not served with the notice of the proceedings inasmuch as the summons was not served on him and therefore the impugned judgment and award was not binding on him. The notice on his son was not served in accordance with law as he had to be served personally in the matter and even otherwise he was not made aware of the acceptance of the notice by his son Prashant on his behalf which in any event was not a good service and not binding on him. The impugned judgment and award was vitiated on that count alone and had to be quashed and set aside. He adverted to the roznama dated 9/03/2007 wherein the learned MACT had recorded his absence but the records did not at all indicate that he had been duly served with the notice of the summons in the Claim Petition.
4. Shri Godinho, learned Advocate for the appellants further contended that the Policy was effective from the date of the payment of the premium and not any future date. The learned MACT could not have dropped the respondents no.4 from the proceedings on the premise that there was no valid and effective Insurance Policy at the time of the accident and on that premise the appellant was prejudiced and the impugned judgment and award was liable for interference in appeal. It was his contention that the Proposal Form relied upon by the insurer i.e. the respondents no.4 was blank and therefore no consent of the original appellant could be inferred on that count. The learned MACT could not have dropped the insurer which he could do only after the evidence and on proof that there was tacit approval of the insured to give effect to the policy at a later date was confirmed during the trial. The award had therefore to be quashed and set aside on these grounds and the matter remanded to the MACT for a trial afresh. He relied in New India Assurance Co. Ltd. v. Sushilabai w/o Ghanshyam Anerao & Ors., 2010 (4) Mh.L.J. 955 and Balbir Kaur & Ors. v. New India Assurance Company Limited & Ors., (2009) 13 SCC 370 to buttress his case. It was further his contention that although there were two certificates of disability on record, the learned MACT without any justification relied on the Disability Certificate certifying the extent of permanent disability at 80%
