- (1.) This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondent on 11-12-90 with a prayer that by an appropriate writ, order or direction, the communication dtd. 27-12-1989 (Annex. 3) by which the respondent informed the petitioner that in respect of cover note dtd. 21-12-89 (Annex. 1), premium was not received and, therefore, the same was going to be cancelled and the communication dtd. 17-1-90 (Annex. 4) by which cover note (Annex. 1) dtd. 21-12-89 was cancelled, be quashed and set aside.
(2.) The facts as put forward by the petitioner are as under : (i) That Shri Ambalal, husband of the petitioner (hereinafter referred to as the deceased) owned a Fiat Car having registration No. RJN 5121. The deceased got the above Fiat Car insured with the New Indian Assurance Company Ltd. for a period of one year from 23-12-1989 to 22-12-1990, on 21-12-89 and in lieu of premium he gave a cheque of Rs. 1975/- to Shri N. P. Khandelwal, an authorised agent of the respondents. The authorised agent Shri N. P. Khandelwal in turn issued a cover note being Cover Note No. DLN 945127 on 21-12- 89 (Annex. 1) for insuring Fiat Car No. RJN 5121. (ii) That the further case of the petitioner is that deceased went to Mehsana (Gujarat) and from there he left for Unja (Gujarat) on 25-12-89 by the above Fiat Car which was insured by the respondent-Company. Unfortunately, on the way from Mehsana to Unja, a Truck No. RNM 8067 collided with the Fiat Car No. 5121 as a result of which deceased died. (iii) That further case of the petitioner is that through letter dtd. 27-12-1989 (Annex. 2), the Branch Manager of the New India Assurance Company Ltd., Mehsana was also informed by one of the relatives of the deceased Ambalal. (iv) That thereafter a letter dtd. 27-12-89 (Annex. 3) was received by the petitioner stating that the cover note (Annex. 1) was going to be cancelled. (v) That the further case of the petitioner is that the cheque which was given by the deceased to the respondent-Company was presented in the bank on 4-1-1990 and since before that the deceased had already expired, therefore, the Bank did not encash the cheque and since the bank had refused to encash the cheque on account of death of the deceased, therefore, through letter dtd. 17-1-90 (Annex. 4), the cover note (Annex. 1) was cancelled by the respondents. Hence, this writ petition with the abovementioned prayer.
(3.) In this writ petition, the main submission of the learned counsel for the petitioner is that after issuance of cover note dtd. 21-12-89 (Annex. 1), the contract of insurance between the deceased and the respondent-Company was complete and therefore, cancellation of cover note on the ground that no payment was received by the respondent-Company is wrong. Apart from this the cheque itself was presented in the Bank by the respondents on 4-1-90 i.e. after the death of the deceased and therefore they could not get cheque encashed earlier and for that the petitioner could not be held responsible. Hence, the writ petition be allowed.;