ORIENTAL INSURANCE CO LTD. Vs. KULSUM BANO

JUDGEMENT

(1.) Instant appeal has been filed by the appellant Insurance company under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 05.10.2005 passed by learned Addl. District and Sessions Judge (FT) No. 4, MACT Cases, Jodhpur [hereinafter referred to as Judge, MACT Cases] in Claim Case No. 189/2004 whereby, the learned Judge, MACT Cases has awarded compensation in the sum of Rs. 4,19,000/- to the claimant respondents.

(2.) Succinctly stated, facts of the case are that a claim petition was filed by the respondent No. 1 to 4 before the Motor Accident Claims Tribunal, Jodhpur which was later on transferred to the court of learned Judge, MACT Cases, stating therein that on 10.04.2002, when the deceased Nawab Khan was coming to Jodhpur from Banar road in Truck No. RSN- 4881 carrying limestone, at around 6:30 PM, a private bus No. RNS 3989 being driven rash and negligently by the driver hit the truck from behind due to which Nawab Khan who was sitting on the other side of the driver of truck fell down on the road. It is further stated that the private bus No. RNS 3989 coming behind the truck ran over him, consequently due to grievous injuries, he died on the spot. As per claim petition, the deceased was earning Rs. 5000/- per month, therefore, it was prayed in the claim petition that a sum of Rs. 16,07,000/- may be awarded as compensation in favour of the claimants.

(3.) The non-applicant No. 2 Ugam Singh, owner/insured of the vehicle remained ex parte despite service. The non-applicant No. 1 Driver Jitendra Singh filed reply to the claim petition and stated that no accident was caused due to negligence of non-applicant No. 1. The appellant insurance company non-applicant No. 3 filed its reply and raised preliminary objection that Vehicle No. RNS 3989 was not and therefore, the insurance company is not liable to make payment of compensation. In para No. 17 of the reply, the insurance company has specifically stated that owner Ugam Singh applied for insurance of Vehicle No. RNS-3989 and an account payee cheque No. 045026 dated 14.01.2002 of Jodhpur Central Co-operative Bank Ltd, Bhopalgarh Branch for a sum of Rs. 7815/- was given towards payment of premium amount and in lieu thereof, a cover note being valid for 15 days was issued. It is stated in the reply that the Insurance company presented the cheque for clearance but the same was dishonoured due to insufficient funds. The information with regard to dishonouring was received by the company on 30.01.2002 and thereafter, on 06.02.2002 the company informed the owner of the vehicle Shri Ugam Singh about dishonouring of cheque and the insurer cancelled the cover-note issued for Policy No. 242202/31/4340 /2002/2302 on 16.02.2002. In reply it has further been stated that the contract of insurance was cancelled much before the date of accident and in absence of a subsisting and valid insurance contract on the date of accident, the insurer has no obligation to indemnify the insured.