Back
2006 Supreme(MP) 717
2006(2) JLJ 247
Dipak Misra and U.C. Maheshwari, JJ.
Praveen Vaidya v. Kailash and others.
Miscellaneous Appeal No. 1356 & 1357 of 1997: against the award of
Additional Motor Accidents Claims Tribunal. Chhindwara. passed in
Claim Cases No. 189 and 190 of 1992;
Decided on 19.5.2006.
Y.K. Munshi with Rajesh Nema for appellant:
Y.K. Shukla for respondent No.6.
Headnote:Motor Vehicles Act, 1988-- Ss. 149 and 147 - cover note issued against cash payment n not proved to have been cancelled by competent officer -- insurer is bound to indemnify insured though he neither appeared nor filed any reply -- cannot be exonerated simply by examining some witnesses stating the same.
On the date of the accident the offending truck was owned by the appellant as registered owner and it was driven by the respondent No.5 with the consent and under the employment of the appellant, while the same was insured with the respondent No. o-insurer. Therefore aforesaid claims were preferred with a prayer to saddle the liability against respondents No.5 and 6 and the appellant jointly and severally.
[Para5
Held: So far exonerating the respondent No.6-insurer is concerned, it appears that the Tribunal has committed grave error in not saddling the liability against the insurer. Although the appellant neither filed his reply nor produced any evidence on his behalf, in-spite it, on admission of insurer that the cover note was issued and the risk was covered hut on account of non-payment of the poremium the same was cancelled on the same day, it was duty of the insurer to prove the cancellation of such cover note by some reliable and admissible evidence and preposition of law. Although the Ex.D-1, the original cover note was produced from the custody of the insurer on which the endorsement of cancelled is written, we have not found any evidence on record or any documents showing when and by whom and also under what procedure it was cancelled. If these things are not proved on record then merely on the basis of the depositions of some witnesses examined on behalf of the insurer, it cannot he assumed that the cover note was cancelled in fey hours from the time of issuing it. Although, if the premium is paid through cheque and the same is dishonored and the same is intimated to the insured then in such circumstances insurer can be exonerated but when the cover note was issued showing the cash payment of the premium then without any cogent, reliable and admissible evidence, the same cannot be deemed to he cancelled. If it was cancelled then on the cover note, some endorsement should have been made by concerning officer
eksVj;ku vf/kfu;e] 1988 && /kkjk 149 rFkk 147 && doj uksV uxn lank; fd, tkus ij tkjh fd;k x;k&& l{ke vf/kdkjh }kjk jÌ fd;k tkuk lkfcr ugha && chekdrkZ] chekd`r dh {kfriwfrZ ds fy, vkc) gS ;|fi og us rks milatkr gqvk vkSj u mlus dksbZ mÙkj gh Qkby fd;k && og jÌ dj fn;k x;k Fkk ,slk dFku djus okys dqN lk{khx.k dh ijh{kk fd, tkus ek= ls og foeqDr ugha fd;k tk ldrkA
nq?kZVuk dh rkjh[k dks mYya?kudkjh Vªd jftLVªhd`r Lokeh dh Hkk¡fr vihykFkhZ ds LokfeRo esa Fkk vkSj og vihykFkhZ dh lEefr ls vkSj mlds fu;kstu esa izR;FkhZ Ø- 5 }kjk pyk;k tk jgk Fkk] tcfd og izR;FkhZ Ø- 6 &chekdrkZ ds ikl chekd`r Fkk blfy,] nkf;Ro izR;FkhZ Ø-5 vkSj 6 rFkk vihykFkhZ ij la;qDrr% vkSj i`Fkdr% vkjksfir fd, tkus dh izkFkZuk ds lkFk iwoksZDr nkos fd, x, FksA ¿ iSjk 5À
vfHkfu/kkZfjr % ;g izrhr gksrk gS fd nkf;Ro chekdrkZ ij vkjksfir ugha djus es izkf/kdj.k us xaHkhj xyrh dh gSA ;|fi vihykFkhZ us u rks viuk mÙkj chekdrkZ dh bl Loh-fr ij fd doj uksV tkjh fd;k x;k Fkk vkSj tks[ke vkPNkfnr fd;k x;k Fkk fdarq izhfe;e ds vlank; ds dkj.k og mlh rkjh[k dks jÌ dj fn;k x;k Fkk] ,sls doj uksV dk jÌdj.k fdlh voyacuh; vkSj xzkº; lk{; rFkk fof/k dh izfriknuk }kjk lkfcr fd;k tkuk chekdrkZ dk drZO; Fkk] ;|fi ewy doj uksV izn‘kZ Mh&1 chekdrkZ dh vfHkj{kk ls izLrqr fd;k x;k Fkk ftl ij jÌ fd;k x;k dk i`"Bkadu fy[kk gS] geus vfHkys[kxr] dksbZ lk{; ;k nLrkost ugha ik;k gS ftlls nf‘kZr gks fd dc vkSj fdlds }kjk rFkk ;g Hkh fd fdl izfØ;k }kjk og jÌ fd;k x;k FkkA ;fn vfHkys[k ij ;g ckrsa lkfcr ugha dh tkrh gS] rc chekdrkZ dh vksj ls ijhf{kr dqN lk{khx.k ds vfHklk{; ls ;g /kkj.kk ugha dh tk ldrh fd og tkjh fd, tkus ds dqN lk{khx.k ds vfHklk{; ls uksV jÌ dj fn;k x;k FkkA ;|fi] ;fn izhfe;e dk lank; psd }kjk fd;k tkrk gS vkSj og vukd`r gks tkrk gS vkSj ;g chekd`r dks lwfpr dj fn;k tkrk gS rc ,slh ifjfLFkfr;ksa esa chekdrkZ foeqDr fd;k tk ldrk gS fdarq tc izhfe;e dh lank; uxn esa n‘kkZrs gq, doj uksV tkjh fd;k x;k Fkk rc fdlh rdZiw.kZ] voyacuh; vkSj xzkº; lk{; ds vHkko esa og jÌ fd;k x;k ugha le>k tk ldrkA ;fn og jÌ fd;k x;k Fkk rc doj uksV ij lacaf/kr vf/kdkjh }kjk leqfpr Li"Vhdj.k ds lkFk dksbZ i`"Bkadu fd;k tkuk pkfg, FkkA fdarq u rks ml ij i`"Bkadu gS vkSj u jÌdj.k ds ckjs esa lacaf/kr vf/kdkjh ds gLrk{kj gks ml ij gSaA 1994 , lh ts 890 ¼mM+hlk½ ¿ iSjk 13À
Maheshwari, J. -- 1. This order shall govern the aforesaid both the appeals, i.e. MA No. 1356/97 and MA No. 1357/97 as both are arising out of the same award, although from the different claim cases but relating to the same accident.
2. The appellant owner of the offending vehicle has directed this appeal under section 173 of the Motor Vehicle Act, in short "The Act", being aggrieved by the award dated 30.6.1997 passed by the Additional Motor Accident Claims Tribunal, Chhindwara, in Claim Case No. 1 R9/92 and Claim Case No. 190/92 awarding the claim of respondents No.1 to 4 against the appellant and the respondent No.5, the driver by exonerating the respondent NO.6-insurer and respondent No.7, the rickshaw puller.
3. The facts giving rise to these appeals are that on date 25.5.1989 at about 9 O'clock in the night Namdeo Karade and his wife Smt. Kamlahai the mother of the respondents No.1 to 4 along-with children were going towards the railway station in the rickshaw of respondent No.7. On the way in between the Bail Bazar and PWD road (Chhindwara-Seoni Road), the said rickshaw was dashed by truck No. MTG 1590, driven by respondent No.5 in rash and negligent manner. Resultantly, the rickshaw was turned turtle and said Namdeo Karade and Kamlabai were run over by the said truck and died on the spot. The offence was registered under section 304A of IPC against the respondent No.5. The dead bodies of the deceased were sent to hospital where post-mortem was carried out and after holding investigation the respondent No.5 was charge-sheeted for the aforesaid offence.
4. The deceased Namdeo Karade was working as Diesel Assistant in Railway and getting the salary of Rs. 2,200/- after all the deduction. He was aged 48 years on the date of the accident. While Kamalabai being household lady also doing the work of stitching and knitting by which she was earing Rs. 1,000/- per month. She was 38 years old on the date of the accident. Due to untimely death of mother and father of the respondents No.1 to 4 they have been deprived of their dependency, love, affection and their company. With this background on account of death of father Namdeo the Claim Case No. 189/92 was filed for compensation of Rs. 7 ,92,000/- while on account of mother Kamalabai the Claim Case No.190/92 was preferred for compensation of Rs.4,80,000/- and also prayed for interest in both the claims on the aforesaid sum.
5. As per further averments of the claim, on the date of the accident the offending truck was owned by the appellant as registered owner and it was driven by the respondent No.5 with the consent and under the employment of the appellant, while the same was insured with the respondent No.6-insurer. Therefore, aforesaid claims were preferred with a prayer to saddle the liability against respondents No.5 and 6 and the appellant jointly and severally.
6. In reply of respondent No.5-the Driver, the factum of accident has been accepted but the contention regarding rash and negligent driving of the truck was denied. According to it, the accident took place due to negligence of the rickshaw puller. It was also pleaded that on holding any liability of him. Then, the truck, was duly insured with the respondent No.6. Hence, the insurer is liable to indemnify such claim. No liability can be saddled against this respondent. He also pleaded that the cover note No. MR-86/280559 was issued on behalf of the respondent No.6.
7. As per record the appellant and respondent No.7 were remained ex part and no reply or written statement was tiled on their behalf.
8. In the written statement of respondent No.6-insurer the averments of claim petition were denied. It was also denied that the offending truck was insured with it on the date of the accident. It was pleaded that cover note No. SR-86/280559 was issued by agent of respondent No.5 under the assurance of the appellant that within couple of hours the sum of premium would be paid. But subsequent to it when the premium was not paid
