Gopai. Krishan Vyas, J. - (1.) The instant appeal has been filed by the The instant appeal ha been filed by the appellant-Insurance Company under Sec. 173 of the Motor Vehicles Act, 1988 against the award dt. 01.04.2009. passed by Motor Accident Claims Tribunal, Chittorgarh and prayed that the award impugned against the appellant may be quashed
(2.) Learned counsel appearing on behalf of the Insurance Company submits that while deciding issue No. 1, the Claim Tribunal gave finding that Insurance Company is not liable to pay the compensation and the owner of the truck is held respondents for compensation but the Insurance Company has been directed to first pall the amount of compensation to claimants, then, recover the amount of compensation from the truck owner.
(3.) Learned counsel for the appellant-Insurance Company vehemently argued that as per fact, a cheque was issued on 29.11.2003. by the truck owner, upon which the cover-note was issued for insuring the vehicle in question, but on 08.12.2003. the cheque for premium given by the truck owner was dishonoured by the bank and therefore, a letter was dispatched to the truck owner the by Insurance Company on 09.12.2003. stating therein that his vehicle will not be treated as insured and cover-note and the policy shall be treated as ineffective. Further it is submitted by learned counsel for the appellant that the claim Tribunal o the one hand, has accepted the plea of Insurance Company but on the other hand, casted duty upon Insurance Company to first satisfy the award and then recover the said amount form the truck owner. According to the appellant-Insurance Company, the order of the Claim Tribunal is illegal in view of the judgment of Bombay High Court in New India Assurance Col. Ltd. v. Anjanabai and other. reported in 2007 ACJ 610 and judgment of Hon'ble Supreme Court in United India Insurance Co. Ltd. v. Ayeb Mohammed and other reported in 1991 ACJ 650 and in National Insurance Co. Ltd. v. Seema Malhotro & Ors., reported in 2001 ACJ 638 wherein the Hon'ble Supreme Court while considering the question whether the insurance Company was justified in repudiating the claim held that when the insured fails to pay the premium promised, or when the cheque issued by him towards the premium is returned dishonoured by the bank concerned, the insurer need not perform his part of the promise.;