10 August 2020

Insurance company is not liable to pay compensation to the claimants if cheque of premium issued by vehicle-owner is dishonored before the date of accident

On perusal of the entire record, it is not in dispute that respondent No.6, owner of the offending vehicle, has issued the cheque on 28.02.2014 for Rs.42,335/- towards payment of premium in respect of the offending vehicle. Pursuant to the same, the Insurer has issued a cover note on the very same day. The Insurer deposited the said cheque with its banker on 10.03.2014 for encashment, but the same was dishonoured on 11.03.2014. The same was informed to the Insurer vide cheque return memo dated 11.03.2014. Thereafter, the Insurer has addressed Ex.B5 - letter dated 13.03.2014 to the owner by sending the same through registered post with acknowledgment due to the address furnished by the owner while issuing Ex.B1 - cover note. A copy of Ex.B5 was marked to the RTO informing about the dishonour of cheque as well as cancellation of cover note. The said letter was received by the owner vide Ex.B6, while the RTO under Ex.B7. In Ex.B6 - postal acknowledgment card, there is a signature in proof of receipt of Ex.B5 - letter. It further discloses that the article was booked vide RLAD No.RM838996406IN. The learned counsel for the claimants would contend that signature on Ex.B6 does not belong to respondent No.6 and, therefore, he has not received Ex.B5 - letter. But, the said contention cannot be accepted in view of Exs.B1, B5 and B6. Admittedly, Ex.B5 was sent to the address furnished by the owner under Ex.B1.[Para No.26]

Insurance company is not liable to pay compensation to the claimants if cheque of premium issued by vehicle-owner is dishonored before the date of accident
    From the above discussion, it is clear that the cheque issued under Ex.B2 was dishonoured and consequently Ex.B1, cover-note was cancelled by the Insurer. The Insurer also intimated about the dishonour of cheque as well as cancellation of policy to the owner as well as RTO by addressing a letter under Ex.B5 and the said letter was received by the owner under Ex.B6 while Ex.B7 discloses receipt of Ex.B5 letter by the RTO. Thus, there is no valid policy exists as on the date of accident i.e., 04.05.2014. Section 64-VB of the Insurance Act also says that no risk to be assumed unless premium is received in advance. In the present case, the Insurer has not received the premium and, therefore, the Insurer shall not assume any risk. As such, the Insurer is not liable to pay compensation to the claimants - legal heirs of the deceased.[Para No.31]

    As already discussed above, the accident is not in dispute. The claim was under Section 163A of the M.V. Act. The policy was cancelled as on the date of accident i.e., 04.05.2014. The policy was not in force as on the date of accident. Therefore, the appellant - Insurer is not liable to pay compensation to the claimants. It is respondent No.6, owner of the vehicle who is liable to pay compensation to the claimants. Thus, the finding of the Tribunal that the appellant - Insurer has to pay the compensation at the first place and recover the same from the owner is unsustainable.[Para No.37]


    Thus, as discussed above, this appeal is allowed with the following findings:
i) If a cheque issued by owner of the vehicle towards premium to the Insurer is dishonoured, the Insurer has to cancel the policy and intimate about the dishonour of cheque and cancellation of the policy to the owner of the vehicle and the Transport Authority concerned by duly serving a copy of the intimation about the dishonour of cheque and cancellation of policy on the owner and the Transport Authority concerned before the date of accident. Then only the Insurer is not liable to pay compensation to the injured/legal heirs of the deceased.
ii) If the Insurer fails to serve the intimation about the dishonour of cheque and cancellation of policy on the owner before KL,J the accident, it is liable to pay compensation to the injured/legal heirs of the deceased.
iii) A contract must be for consideration. Contract is based on reciprocal promise. Reciprocal promises by the parties are condition precedent for a valid contract. If a contract of Insurance has been cancelled and all the concerned have been intimated thereabout, the Insurer is not liable to satisfy the claim.[Para No.41]

Telangana High Court

M/S Liberty General Insurance Ltd.
Vs.
Md. Haseena Nawaz

Decided on 06/07/2020





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