High Court
Case Details
MACApp. 98/2013 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY
Legal Reasoning
I have heard Mr. R. Goswami, learned counsel for the appellant, MS. D.D. Roy, le arned counsel appearing for the respondent Nos.1 to 4 and Mr. N. Barman, learned counsel appearing for the respondent Nos.5 and 6. As agreed to by the learned counsel appearing for the parties, this appeal is ta ken up for disposal at the admission stage itself. The Insurance Company has preferred this appeal against the judgment and award d ated 23rd August, 2011 passed by the learned Member, MACT No.2, Kamrup at Guwaha ti in MAC Case No.929/2008, whereby and whereunder an amount of Rs.3,12,000/- (R upees Three Lakhs Twelve Thousand) has been awarded as compensation for the deat h of the respondent Nos.1 to 4’s predecessor-in-interest in a motor accident occ urred on 24th February, 2008 involving the motor vehicle bearing registration No .NL-02/D-5206 (truck) belonging to the respondent No.5, which was driven by the respondent No.6 at that relevant point of time. The only ground on which the said award has been put to challenge is that there was no valid contract of insurance between the appellant and the respondent No.5 , i.e. the Insurance Company and the owner of the offending vehicle, at the rele vant point of time, i.e. on the date of accident, the cheque issued by the respo ndent No.5 towards the premium payable insuring the risk of the respondent No.5 for the period from 7th June, 2007 to 6th June, 2008, having been dishonoured, a bout which, according to the appellant, the respondent No.5 has been informed. It has been submitted by Mr. Goswami, learned counsel for the appellant/Insuranc e Company that since the cheque issued by the respondent No.5 towards insurance premium has been dishonoured by the Bank, on presentation, about which the respo ndent No.5 has been informed on 21st July, 2007, there is no valid contract of i nsurance between the appellant and the respondent No.5, in respect of the vehicl e involved in the accident and hence, the learned Member, MACT ought not to have directed the appellant/Insurance Company to satisfy the award passed. The lear ned counsel in support of his contention has referred to the deposition of witne ss No.1 examined by the Insurance Company, apart from the certificate of posting dated 26th July, 2007 issued by the appellant/Insurance Company to the responde nt No.5. The learned counsel, therefore, submits that the direction issued by t he learned Member directing the appellant/Insurance Company to satisfy the award may be set aside. Ms. Roy, learned counsel appearing for the respondent Nos.1 to 4, on the other h and, has submitted that since the appellant/Insurance Company could not prove in timation of the respondent No.5 about dishonour of the cheque, the learned Membe r has rightly directed satisfaction of the award by the appellant/Insurance Comp any, in view of the contract of insurance between the appellant/Insurance Compan y and the respondent No.5. In any case, according to the learned counsel, even if there is any dispute relating to the payment of insurance premium, since the appellant/Insurance Company has issued the insurance policy, the claimants may n ot be made to suffer. Mr. Barman, learned counsel appearing for the respondent Nos.5 and 6 also submit s that the appellant/Insurance Company could not demonstrate that the respondent No.5 has been intimated about dishonour of the cheque and hence, the learned Me mber has not committed any illegality in directing the appellant/Insurance Compa ny to satisfy the award in view of the contract of insurance. It is not in dispute that the Insurance policy was issued by the Insurance Compa ny covering the risk of the respondent No.5 in respect of the offending vehicle for the period from 7th June, 2007 to 6th June, 2007. The vehicle met with an a ccident on 24th February, 2008, i.e. within the period of contract of insurance. According to the appellant/Insurance Company, the premium payable towards such contract of insurance was paid by the respondent No.5 by an account payee chequ e, which, however, has been dishonoured by the Bank on presentation on 21st July , 2007, about which according to the appellant/Insurance Company, the respondent No.5 has been informed vide certificate of posting dated 26th July, 2007.
Decision
It appears from the evidence adduced by the Insurance Company that they could no t conclusively prove intimation of the respondent No.5 about the dishonour of th e cheque issued towards the premium payable for the insurance coverage for the a foresaid period. That being the position and in the absence of any proof in that respect, it cann ot be said that the learned Member has committed any illegality in directing the appellant/Insurance Company to satisfy the award. However, if in fact the appel lant/Insurance Company has intimated the respondent No.5 prior to the date of th e accident, about the dishonour of the cheque issued towards the premium payable , they can initiate a proceeding for recovery of the amount from the owner of th e offending vehicle, subject to proof of intimation of the owner, relating to di shonour of cheque, prior to the date of accident. In view of the above, while refusing to interfere with the direction issued by t he learned Member to satisfy the award, the appeal is disposed of allowing the a ppellant/Insurance Company to initiate the proceeding, if so advised, for recove ry of the said amount from the owner on the ground of dishonour of the cheque is sued by the owner of the offending vehicle towards the insurance premium. In th e said proceeding, however, the claimants shall not be parties. In the event of initiation of any such proceeding, the Tribunal would decide the said proceedin g in accordance with law and with due notice to the owner. The Insurance Company shall deposit the entire amount with interest before the l earned Member, MACT No.2, Kamrup at Guwahati, within a period of 1(one) month fr om today, which shall be disbursed to all the claimants in equal proportion by a ccount payee cheques and on being duly identified, since the respondent Nos.3 an d 4, in the meantime, have attained majority. The appeal accordingly stands disposed of. No costs.