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2019 Supreme(All) 2618
IN THE HIGH COURT OF ALLAHABAD
VIRENDRA KUMAR SRIVASTAVA, J.
National Insurance Company Ltd. - Appellant
Versus
Smt. Reeta Devi and Others - Respondents
First Appeal From Order No. 2257 of 2010 along with First Appeal From Order No. 2256 of 2010
Decided On : 22-10-2019
For the Appellant : Saral Srivastava, Mr. Amit Manohar.
For the Respondent: Anurag Tripathi, Poonam Dubey, Vashistha Tiwari.
Point of Law: An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberimma fides i.e. good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract.
Headnote:
Motor Vehicle Act – Section 173 – Insurance Act, 1938 – Sections 145, 146, 147, 149 (1),156, 64 – Indian Contract Act – Sections 2(a), 2(b), 2(e), 2(h), 10 –Issue on Insurance Policy, Cheque – Respondent-owner has not assigned any reason or justification as to why he sent cheque to office situated at Lucknow without any requisition or offer of Insurance Company – He is neither resident of Lucknow nor alleged Bus was registered at Lucknow - Counsel for respondent-owner has also not shown any provision of law which provides that merely issuing a cheque will amount to insurance policy.
Facts of the case: Contention of the learned counsel for the appellant that an equitable view must be taken is untenable – In a contract of insurance, rights and obligations are strictly governed by the policy of insurance – No exception or relaxation can be made on the ground of equity – Learned counsel for the appellant has submitted that the alleged Bus bearing registration was never insured by the appellant-Insurance Company at the time of occurrence – Learned counsel further submitted that the respondent-owner of the vehicle has neither filed any policy of Insurance nor any cover note before the Tribunal to prove that the alleged vehicle was insured by Insurance Company at the time of accident.
Finding of the court: Mere issuing a cheque and sending it by registered post, without any further details which are necessary for insurance policy, cannot be deemed as insurance policy as required by relevant provision of M.V. Act from another point of view because suppose if a person (owner) has more than one vehicle and he sends a cheque by post without mentioning details of any particular vehicle, how it can be presumed that such cheque was issued for premium of that particular vehicle for particular period and if one or more vehicle caused accident and how tribunal can arrive on conclusion regarding identity of vehicle and period of continuation of coverage of risk – Thus in view of the above discussion, in absence of valid and effective insurance policy, Insurance Company is not liable to pay any compensation and only the respondent-Anthoni John, owner of the alleged vehicle No. UP is liable to pay the compensation along with the interest to the claimant-respondents
Result: Order accordingly
JUDGMENT :
1. First Appeal From Order 2257 of 2010 (National Insurance Company Ltd. vs. Smt. Reeta Devi and others) against the award and order dated 24.4.2010, passed in M.A.C.P. No. 117/2001 (Smt. Reeta Devi and others vs. Anthoni John and others)and First Appeal From Order 2256 of 2010 (National Insurance Company Ltd. vs. Smt. Lalmati Devi and others) against the award and order dated 24.4.2010, passed in M.A.C.P. No. 119/2001 (Smt. Lalmati Devi and others vs. Anthoni John and others), have been filed under Section 173 of Motor Vehicle Act (in short ‘Act’), whereby both the claim petitions, filed by the respondents-claimants (hereinafter referred to as 'claimants'), have been allowed for compensation of Rs. 5,27,900/- each along with 7.5% per annum simple interest.
2. Since both the impugned awards and orders have been arisen out from the accident caused at the same time and place by the Bus bearing registration no. UP 78 N 8663 on 23.2.2001, owned by the same respondent-owner i.e. Anthoni John, both the appeals are being decided together.
3. The brief facts, arising out of both the appeals, are that on 23.2.2001, Prasanjeet Yadav S/o. Sabru Yadav, Mahendra Yadav S/o Chanchal Yadav and their friend Kishan Chauhan @ Heera Nishad S/o. Aklu Nishad were coming by their motorcycle Hero Honda from Meereganj to Kinnarpati and when they reached nearby Kinnarpatti village they stopped their motorcycle and as they were talking with each other, bus no. UP 78 N 8663, owned by respondent-Anthoni John, driven by its driver rash and negligently, dashed and crushed them at about 6:30 p.m., whereby, they died on spot and their motorcycle was also damaged.
4. Claim petition no. 117/2001 (Smt. Reeta Devi vs. Anthoni John and others) filed for death of Prasanjeet Yadav by claimants, Smt. Reeta Devi and others and claim petition no. 119/2001 (Smt. Lalmati Devi and others vs. Anthoni John and others) filed for death of Heera Nishad @ Kishan Chauhan by claimants Smt. Lalmati Devi and others were allowed as above and appellant-Insurance Company was directed to pay the amount of compensation to the claimants of both petitions.
5. Aggrieved by the said awards and orders, both the appeals have been preferred by the Insurance Company.
6. Heard Sri Amit Manohar, learned counsel for the appellant and Sri Anurag Tripathi, learned counsel for the claimants appearing in both the appeals. No one is present on behalf of the owner of the vehicle despite sufficient services of notice.
7. Learned counsel for the appellant has submitted that the alleged Bus bearing registration no. UP 78 N 8663 was never insured by the appellant-Insurance Company at the time of occurrence. Learned counsel further submitted that the respondent-owner of the vehicle has neither filed any policy of Insurance nor any cover note before the Tribunal to prove that the alleged vehicle was insured by Insurance Company at the time of accident. Learned counsel further submitted that after the accident, the owner of the vehicle sent a back dated cheque to Lucknow office of the Insurance Company without any offer or proposal, whereas he was resident of District Kushi Nagar where office of the Insurance Company is already situated. No policy has ever been issued by the Insurance Company covering any risk of the alleged vehicle for the alleged accident. Learned counsel further submitted that neither at the time of issuing cheque nor at the time of accident, any sufficient amount was available in the bank account of owner of the alleged vehicle to honour the said cheque, which shows that no money or premium was paid by the owner to insurance company at or prior to alleged accident and despite that Tribunal made liable to the Insurance Company for the payment of compensation. Impugned awards and orders in both the claim petitions, as challenged under both the appeals, are illegal, improper and unjustified which are liable to be set aside. Learned counsel for the appellant has relied on the law laid down
