JUDGMENT :

H.K. Rathod, J.

Heard learned advocate Ms. Megha Jani appearing on behalf of appellant National Insurance Company Limited.

2. The appellant Insurance Company has challenged the award passed by Motor Accident Claims Tribunal (Aux.) Fast Track Court at Vadodara in MACP No. 1128 of 2004 Ehx. 44 dated 29th September 2008. The claims tribunal has awarded Rs. 98,000/- with running 7.5% interest from the date of application awarding the compensation in favour of respondent claimant.

3. Learned advocate Ms. Megha Jani appearing on behalf of appellant raised contentions before this Court that claims tribunal has failed to appreciate that the cheque paid by the insured towards payment of premium was dishonoured and subsequently, the policy of insurance company was cancelled by appellant insurance company on account of dishonour of cheque. She also raised contention that deposition of Pratapsinh Bheemsinh Sisodiya, Branch Manager has not been properly appreciated by claims tribunal at Exh. 43. She submitted that appellant insurance company had examined Pratapsinh Bheemsinh Sisodiya in support of their contention and he has specifically stated in his examination-in-chief that Rs. 5,000/- was received by insurance company in cash and remaining amount of Rs. 2,358/- was received through Cheque bearing No. 321668 of Bank of Baroda, Nagarwada Branch towards payment of premium for vehicle bearing registration No. GJ-6-X-9026. He has further deposed that when the cheque was given for collection by the insurance company, the cheque was dishonoured on account of insufficient balance and the same was returned by the Bank to the insurance company on 4.8.2003. The witness in support of his contention produced copy of cheque of Rs. 2,358/- dated 14.7.2003 paid towards payment of premium and copy of intimation letter dated 2.8.2003 given by Bank to the insurance company intimating about the dishonour of cheque. He has stated that the insured as well as RTO was intimated by the insurance company about the dishonour of cheque. The officer of insurance company had also stated that the policy of insurance of the insured was cancelled and the amount of Rs. 5,000/- which was paid by cash was refunded by the insurance company and a copy of the intimation voucher of the same was also produced by the officer. She relied upon the provisions of the Indian Evidence Act. Section 61 to 74 highlighted the issue that secondary evidence is admissible in evidence and it cannot be ignored if substantive evidence is not produced by party. She submitted that policy on the date of accident was not in existence, therefore, insurance company is not liable to pay compensation. The risk has been assumed by insurance company only on the payment of full consideration which was not paid by insured, therefore, claims tribunal has committed gross error in awarding compensation in favour of respondent claimant.

4. Learned advocate Ms. Megha Jani relied upon the recent decision of Apex Court in case of Deddappa and others v. Branch Manager, National Insurance Company Limited reported in (2008) 2 SCC 595. Relying upon the aforesaid decision of Apex Court, she submitted that third party insurance - insurance company, held, not liable after rescinding insurance contract on account of non-payment of premium (due to bounced/dishonoured cheque) - insurance company undertaking third party insurance for a motor vehicle, for the period 17th October 1997 to 16th October 1998 Vehicle owner paying premium vide cheque dated 15th October 1997 which was dishonoured on 21st October 1997 due to insufficient funds insurance company consequently cancelling insurance policy and informing vehicle owner and RTO accident taking place on 6th February 1998 Held, contract of insurance stood rescinded due to failure of consideration and intimation to this effect had been given to all concerned on principle of law, insurance company not liable to compensate third party for the accident. The Apex Court sai