A S SATISH S/O SWATHANTHRA Vs. B V KUMAR S/O LATE U M BALAIAH; H S NAGESH; NATIONAL INSURANCE COMPANY

JUDGEMENT

(1.) Owner of the offending vehicle has filed this appeal challenging correctness and legality of judgment and award passed by II Addl.Civil Judge, Sr.Dn and MACT, Mysore dated 10.09.2008 in MVC No.93/1997 whereunder Tribunal has allowed the claim petition in part and has awarded a compensation of Rs.1,54,000/- with interest @ 6% p.a. from the date of petition till date of realisation by fixing the liability on appellant who was second respondent before Tribunal.

(2.) I have heard the arguments of Sri Narendra D.V.Gowda, learned Advocate appearing on behalf of Sri R.S.Ravi for appellant and Sri H S Lingaraj, learned Advocate appearing for respondent-3 insurer. Respondent No.1 is served and represented but none appears.

(3.) It is the contention of Sri Narendra D.V.Gowda, learned Advocate appearing for appellant - owner that premium towards policy issued to the offending vehicle had been paid by the appellant to the agent of insurer namely, R.W.3 on 26.10.1996 itself and on account of there being postal strike, cheque was forwarded or dispatched by the agent on 31.10.1996 which came to be received by the insurance company on 04.11.1996 and there being no dispute with regard to the fact that agent being authorised to collect the premium, insurer cannot stave of its liability on the ground that as on the date of accident, premium had not been received or policy had not been renewed. By reiterating grounds urged in the appeal, he would contend that evidence tendered by the appellant would clearly indicate premium for renewal of the policy had been paid on 26.10.1996 itself by cheque and on account of postal strike, it did not reach the insurance company on time and subsequently cheque has been encashed by the Insurer and policy came to be issued on 04.11.1996 and as such Insurer is liable to indemnify the claim. He draws the attention of the Court to the evidence of R.W.3 agent who had received the premium cheque, the official from the Postal Department R.W.5 and also admission of the Manager of the Insurance Company R.W.6 to contend that agent was entitled to receive the premium by cheque and accordingly he had received the same but had not forwarded to the insurer within time due to postal strike and thereafter same having been received by Insurer and after cheque being encashed and policy issued, Tribunal could not have absolved the insurer of its liability and non consideration of these vital evidences available on record has resulted in erroneous judgment and award being passed by fastening the liability on the appellant insured. Hence, he seeks for suitable modification of the judgment and award passed by the Tribunal.