The burden of proof lies on the insurance company to establish the cancellation of the policy and the proper intimation to the insured before the accident, as per the Motor Vehicles Act.

JUDGMENT

Vinay Joshi, J. - These appeals are filed by the insurance company in terms of section 173 of the Motor Vehicles act, 1988, challenging the even dated judgments passed by the Motor accident Claims Tribunal, Nevasa, Dist. ahmednagar, in MaCP Nos.486 of 2014 and 487 of 2014. Both the petitions arose from the same accident as well as common question of law and fact has been raised by the insurer. Hence, they are taken together for disposal.

2. It was the case of the claimants that on 01.11.2014 deceased Ganesh was riding motor cycle bearing Registration No. MH-17-Ba-4248 whilst another deceased Mahadeo was pillion rider. While the motorcycle was proceeding on the road, offending vehicle Mahindra Pick-up van bearing Registration No. MH-14-DM-3454, came in high speed and gave dash to the motorcycle from behind.

In the result, both rider and pillion rider of the motorcycle sustained severe injuries to which they succumbed. The accident took place due to rash and negligent driving on the part of the pick-up van driver. The legal heirs of both the deceased have filed above named two separate claims seeking compensation on account of death of their kin. after recording evidence, the Tribunal concluded that due to rash and negligent driving of pick-up van driver the accident occurred. Since the offending vehicle was duly insured with the New India Insurance Company Limited, liability has been jointly and severally saddled on the insurance company along with driver and owner of the offending vehicle.

3. Before the claims tribunal, respondent No.3 insurer raised defence that the insurance policy was cancelled since the cheque issued by the owner was came to be dishonoured. It is the defence that after dishonour of cheque, the policy was cancelled and duly intimated to the owner of the offending vehicle. Besides that some other defences have also been raised.

4. The owner and driver of the offending vehicle also appeared and contested the claim by filing written statement. It is their defence that due to sole rash and negligent driving of the motorcycle rider, the accident occurred. Moreover, it is contended that at the relevant time the vehicle was duly insured with the New India Insurance Company and therefore they are not liable to pay the damages.

5. The learned Counsel for the appellant submitted that the insurance company cannot be fastened with the liability to pay the compensation. It was the submission that the owner of the pick-up van though issued a cheque towards premium for the insurance policy, however, said cheque was dishonoured and therefore the policy was cancelled. The office of the insurance company has intimated to the owner of the vehicle about the dishonour of cheque and cancellation of the policy. according to the appellant, on 14.03.2014 itself, the policy was cancelled and intimated to the owner. In other words, before accident, the intimation was given about cancellation of the policy and therefore they cannot be saddled with the liability to pay compensation.

6. On the other-hand, learned Counsel appearing for the claimants supported the impugned judgment. It is specific submission that the claimants being third party, the insurance company is statutorily liable to pay the compensation. according to the claimants the insurer has utterly failed to establish that the policy was duly cancelled and there was valid intimation to the owner of the vehicle. In absence of proof of intimation regarding cancellation of policy, the insurance company cannot be exonerated.

7. Besides above submissions, the appellant has also disputed the quantum of compensation as regards the claim raised on behalf of the legal heirs of deceased Ganesh in MaCP No.486 of 2014. It was the only submission that the Tribunal erred in deducting 1/3rd amount towards personal and living expenses of deceased. according to the appellant, deceased Ganesh was a bachelor and therefore the Tribunal ought to have deducted 50% amount towards his personal an