- (1.) Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Sabarkantha at Himatnagar (hereinafter referred to as "the tribunal") dated 17/09/2005 in MACP No.663/1995, the appellant herein-original opponent no.2-The National Insurance Company Ltd. the insurer of Jeep No.GJ-V-5911 involved in the accident has preferred the present First Appeal in so far as holding the appellantInsurance Company liable to pay the compensation.
(2.) The facts leading to the present Appeal in a nutshell are as under; 2.1 In a vehicular accident, which occurred on 22/08/1994 deceased-Pratapsinh Punjaji Parmar who was traveling in the Jeep No.GJ-V-5911 died and, therefore, the original claimants filed the Claim Petition before the learned tribunal claiming Rs.3 lakhs towards compensation. It was the case on behalf of the original claimants that at the relevant time the deceased was traveling in the offending Jeep, which at the relevant time was being driven by original opponent no.1. According to the original claimants, original opponent no.1 was driving the said Jeep in a rash and negligent manner and when the said Jeep reached near the place of the accident, the driver of the offending Jeep suddenly applied the break and the deceased who was sitting on the back side of the Jeep fell down and serious head injuries was caused and he died while taking treatment. 2.2 The Claim Petition was opposed by original opponent no.1 by filing written statement at Exh.14 wherein he inter alia contended that he was driving the offending vehicle / Jeep at the time of the accident and he was having valid driving license for driving the said vehicle / Jeep. According to him the vehicle was insured with original opponent no.2- Insurance Company i.e. the appellant herein. The Claim Petition was vehemently opposed by original opponent no.2- Insurance Company by filing written statement at Exh.19. The Insurance Company specifically denied their liability. It was also contended on behalf of the appellant-Insurance Company that as the cheque towards the premium of the insurance policy, which was given by the owner of the Jeep involved in the accident, was dishonoured and even an intimation was given to the owner of the Jeep and thereafter the accident took place, the Insurance Company cannot be fastened with the liability to pay the compensation as there was no valid insurance policy and the risk was not covered. In support of the above defence the Insurance Company relied upon the decision of the Kerala High Court in the case of New India Assurance Co. Ltd. Vs. Raghu & Ors, 2002 ACJ 217. However, relying upon the decision of this Court in the case of United Insurance Co. Ltd. Vs. Minor Mamtaben B. Rathod, through Byassingh Bansisingh Rathod, 2005 1 GLH 330 and observing that no intimation was given by the Insurance Company to the RTO Office regarding dishonour of the cheque or cancellation of the policy, by the impugned judgment and award the learned tribunal has held the appellant-Insurance Company liable to pay the compensation. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned tribunal in holding the appellant herein-Insurance Company liable to pay the compensation, the appellant herein-original opponent no.1-Insurance Company-the insurer of Jeep No.GJ-V-5911 has preferred the present First Appeal.
(3.) Shri Sunil Parikh, learned advocate appearing on behalf of the appellant-Insurance Company has vehemently submitted that the learned tribunal has committed a grave error in holding the appellant-Insurance Company liable to pay the compensation. It is further submitted that the owner of the Jeep involved in the accident gave the cheque towards the premium on dated 08/10/1993, which came to be dishonoured and an intimation was given about dishonour of the cheque and cancellation of the policy to the owner of the Jeep on 03/11/1993. It is submitted that at the relevant time when the cheque towards the premium was issued, the insurance policy was given only in anticipation of honouring the cheque and on an assurance that the cheque will be honoured. It is submitted that thereafter even after 03/11/1993 after giving intimation to the original owner with respect to dishonour of the cheque and cancellation of the policy, no amount was paid by the owner towards premium. It is submitted that thereafter the accident in question occurred on 22/08/1994. It is submitted that in view of the above when the accident took place the insurance policy was not in existence and, therefore, the risk was not covered and, therefore, the appellant-Insurance Company could not have been / ought not to have been held liable to pay the compensation. In support of his above submission, Shri Parikh, learned advocate appearing on behalf of the Insurance Company has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Deddappa and Ors Vs. Branch Manager, National Insurance Co. Ltd., 2008 2 SCC 595 as well as in the case of National Insurance Company Ltd. Vs. Yellamma and Anr., 2008 7 SCC 526. 3.1 It is further submitted that as such the learned tribunal has committed an error in relying upon and / or considering the decision of this Court in the case of Minor Mamtaben B. Rathod . It is submitted that in the said decision this Court was considering the provisions contained in Motor Vehicles Act, 1939, more particular Section 105 of the Motor Vehicles Act, which cast duty upon the Insurance Company to intimate the RTO Office with respect to dishonour of the cheque and / or cancellation of the policy. It is submitted that such a requirement is not there in the Motor Vehicles Act, 1988. It is submitted that the present case is covered by the Motor Vehicles Act, 1988. It is submitted that therefore the Insurance Company followed the normal procedure of intimating the owner with respect to dishonour of the cheque and consequently cancellation of the policy. It is submitted that therefore the learned tribunal has committed a grave error in holding the appellant-Insurance Company liable to pay the compensation. 3.2 Shri Parikh, learned advocate appearing on behalf of the appellant-Insurance Company has further submitted that in the present case while considering the application given by the original claimant under Section 140 of the Motor Vehicles Act the learned tribunal rejected the said application by holding that on dishonour of the cheque and cancellation of the policy there was no policy in existence. Making the above submissions, it is requested to allow the present Appeal and quash and set aside the impugned judgment and award passed by the learned tribunal in so far as holding the appellant-Insurance Company liable to pay the compensation.;