Mr. Mohit R. Deshmukh, Advocate for v. S. Undre
Legal Reasoning
-1- FA-808-2021IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 808 OF 2021WITHCIVIL APPLICATION NO.5267 OF 2021WITHCIVIL APPLICATION NO.11794 OF 2021The New India Assurance Company Limited,Through its Branch Manager,Shivaji Chowk, Naik Niwas, Osmanabad, Dist. Osmanabad.Through Senior Divisional Manager/ In-charge Legal Hub,Ajay Engineering Compound,Near Kranti Chowk, Mahesh Compound, Adalat Road, Aurangabad… Appellant(Orig. Respondent No.2.)Versus1.Ganesh S/o. Shripati Gaikwad,Age : 26 years, Occu. : Labour, R/o. Girwali, Tq. Bhoom,Dist. Osmanabad.2.Ramhari S/o. Shripati Gaikwad,Age : 28 years, Occu. : Labour, R/o. As Above.3.Reshma W/o. Vinayak Shendge, Age : 25 years, Occu. : Education, R/o. Sultanpur, Tq. & Dist. Beed.4.Dhanraj Sambhaji Undre,Age : Major, Occu. : Business,R/o. Lonkhas, Tq. Wanhi,Dist. Osmanabad.5.Kamlakar Gorakh Borade,Age : Major, Occu. : Business, R/o. Pathrud, Tq. Bhoom,Dist. Osmanabad.… Respondents.(Respdt. Nos.1 to 3 Orig.Claimants, Respdt. Nos.4 & 5 –Orig. Respdt. Nos.1 & 3)
Legal Reasoning
-2- FA-808-2021……Mr. Mohit R. Deshmukh, Advocate for Appellant. Mr. V. S. Undre, Advocate for Respondent Nos.1 to 3.Mr. K. R. Doke & Mr. S. K. Doke, Advocates for Respondent Nos.4 & 5...… CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :30 JULY 2025PRONOUNCED ON :08 AUGUST 2025JUDGMENT :1.This is an appeal at the instance of Insurance Companyoriginal respondent no.2 questioning the judgment and awarddated 09.12.2020 passed by learned Motor Accident ClaimsTribunal, Bhoom in M.A.C.P. No.253 of 2014.2.Facts giving rise to the present appeal are that,respondent Nos.1 to 3 are original claimants, who had filed claimpetition under section 166 of the Motor Vehicles Act, 1988,advancing a case that deceased Shamalbai was carrying saplingsby walking on the side of the road proceeding from village Girwali.Tempo bearing No. MH-16-AE-7914 came in reverse directionwithout prior signal or intimation and gave dash to the deceased,who suffered fatal injuries and died on the spot. Claimants set up acase that, Shamalbai was earning livelihood by doing labour workand was maintaining her family i.e. claimants. On account of heruntimely accidental death, they had lost source of income and -3- FA-808-2021under various heads, they claimed compensation to the tune ofRs.8,00,000/- from respondents therein i.e. owner and driver ofthe tempo and its insurer. After appreciating the respective cases advancing byeach of the side, learned tribunal was pleased to hold thatclaimants have made out case regarding death of Shamalbai inroad traffic accident dated 15.09.2014 on account of dash given bytempo and proved that there was rash and negligent driving on thepart of tempo driver. However, learned tribunal dismissed theclaim against original respondent no.3 i.e. previous owner of tempoand directed compensation to be paid jointly and severally byoriginal respondent nos.1 and 2 i.e. owner of tempo and his insurerpresent appellant i.e. to the tune of Rs.6,30,120/- with interest @7% per annum.3.Before this court there is serious contest on liability topay compensation i.e. liability of insurance company to paycompensation jointly and severally with owner of the tempo.4.Learned counsel for insurance company vehementlysubmitted that, there was no effective insurance policy in force atthe time of accident so as to make insurance company liable. Hepointed out that, original respondent no.3 had taken insurance -4- FA-808-2021policy, but it was only for a period from 11.03.2014 to 10.03.2015.Premium was paid by way of cheque, but the cheque itself wasdishonoured for want of sufficient funds, and therefore, nopremium being received for the coverage, insurance policy came tobe cancelled and intimation to that extent being given to originalrespondent no.3 along with R.T.O. authorities. Consequently,insurance company having not received premium, is not liable toprovide cover or any insurance.5.Above case is countered by owner of the tempo and hiscounsel would point out that, premium was paid in cash throughagent. That, no intimation has been received regardingcancellation from insurance company by any mode. That, ownerhaving paid premium and being equipped with the policy for theperiod including date of accident, insurance company to be liable topay. 6.Before this court in appeal, learned counsel forappellant would submit that, before the tribunal the very SeniorBranch Manager of insurance company has been examined atExh.49. That, this witness has placed on record certificate ofinsurance Exh.61 and has testified that, cheque amount ofRs.22,007/- which was paid towards premium, was dishonoured. -5- FA-808-2021Cheque (Exh.62) has been placed on record. Thus, according tohim, policy stood cancelled for want of premium. He pointed outthat, through R.P.A.D. intimation of cancellation of policy has beengiven to the owner apart from corresponding intimation to R.T.O.authorities. He pointed out that, photocopies of the postal slips byR.P.A.D. are also placed on record. As stated above, receipt of intimation aboutcancellation of policy has been flatly denied by original respondentno.1 and further case set up is that premium for the coverage hasbeen paid by cash through authorized agent namely Shri AnilKhose, and therefore, policy coverage has been obtained and soinsurer is liable to compensate. 7.Attention of this court is invited to the evidence ofSenior Branch Manager Shri Pathan as well as to the cross. Forproper comprehension cross being relevant, is reproduced asunder :- “Cross-Examination by Advocate D.D. Nagargoje onBehalf of Non-Applicants No. 1 and 33. My educational qualification is a degree in theScience stream. The cheque mentioned in theexamination-in-chief was received from Om Sai KrishiSeva Kendra, but I cannot state whose account it belongedto. The bank memo does not mention the account -6- FA-808-2021number. It is not true that the insurance company issuespolicies only through an insurance agent. It is not truethat I am falsely stating that the company informed thepolicyholder of the policy cancellation via registered post.It is not true that I am falsely stating that theacknowledgment receipt for the said letter/notice wassent by Respondent No. 2 to NXA company. It is not truethat the insurance policy was in existence at the time ofthe accident.Cross-Examination by Advocate B.U. Mote on Behalf ofthe Applicant4. It is true that the insurance company issues aninsurance policy only after receiving the premium amount.It is true that the insurance company issued the insurancepolicy after receiving the premium cheque. I state that Iwill submit the acknowledgment receipt for the noticeserved to Respondent No. 3 if it becomes available. It isnot true that I am falsely stating that the company sent anotice to Respondent No. 3 regarding the cancellation ofthe insurance policy and that it was received byRespondent No. 3. It is not true that the said policy was inexistence during the period from 11.03.2014 to10.03.2015. It is not true that I am giving falsetestimony.”(As translated by Senior Translator, High Court of Bombay Bench at Aurangabad)8.Thus, what is emerging from above answers is thatthough insurance company claims to have received cheque, but it -7- FA-808-2021is apparently in the name of one “Om Sai Krushi Seva Kendra”.There is no evidence to show nexus or connection of originalrespondent nos.1 and 3 with the said Om Sai Krushi Seva Kendra.Learned counsel for insurance company denies receipt of premiumthrough Shri Anil Khose and attention of this court is invited to thepolicy wherein name of agent namely Sanjay Chapale is reflected.Though, there is difference in the name of agent, insurancecompany has not denied policy of the tempo for a period from11.03.2014 to 10.03.2015. Further insurance company thoughclaims to have cancelled the policy and issued intimation, itsreceipt by original respondent nos.1 and 3 has not beendemonstrated. Mere copy of dispatch register is placed on record,but complete address of original respondent no.3 is not reflectedthereupon. Even postal receipts in the form of acknowledgmentsare not placed on record so as to accept appellant’s contentionabout intimation being received by owner of the tempo. Unlessintimation is shown to be received by the owner about cancellation,and, more particularly in the light of availability of policy and therebeing no denial of receipt of premium by cash mode, though notsure from which of the agent, insurance company in the consideredopinion of this court, is liable to compensate.9.No point being made out on merit to interfere in the -8- FA-808-2021findings and conclusion drawn by learned tribunal, appeal is liableto be dismissed. Hence, the following order is passed : ORDER (i) The appeal stands dismissed. (ii)In view of dismissal of the appeal itself, CivilApplication No. 11794 of 2021 filed by the original claimants forwithdrawal of amount is allowed in terms of prayer clause “A”. (iii)Civil Application No.5267 of 2021 also stands disposedoff. (ABHAY S. WAGHWASE, J.) Tandale