National Insurance Co. Ltd. vs Jita and Others

Arun Kumar Goel, J.—This appeal is directed against the award dated 5.3.2003, passed by learned Motor Accidents Claims Tribunal, Kullu, in Claim Petition No. 71 of 2001, titled as Jita v. Mohinder Pal.

At the time of hearing of this appeal, Mr. Ashwani Sharma, the learned counsel for the appellant, has made a twofold prayer. Firstly, according to him, vide cheque dated 7.6.2001 issued by the owner of the vehicle, i.e., Yogesh Kumar in favour of the appellant, bus bearing registration No. HP-34-5401 was insured. It was delivered to the Development Officer on 8.6.2001. 9.6.2001 and 10.6.2001 being holidays, it was received in the Branch on 11.6.2001. In usual course of business on 12.6.2001 this cheque was deposited with Punjab National Bank at Mandi for collection. And finally it was credited to the account of the appellant on 26.7.2001. Therefore, there was no subsisting and legal contract of insurance between the parties on the date of accident, which is 20.6.2001 in the instant case. The other ground urged by Mr. Sharma is that this is a clear cut case of contributory negligence as admittedly two buses had collided, one belonging to the private owners and the other to Himachal Road Transport Corporation. Therefore, on the quantum of compensation, he has urged that the compensation needs to be apportioned between his client and the Himachal Road Transport Corporation. Another fact referred to by Mr. Sharma was that after getting the vehicle insured aforesaid Yogesh kumar had sold the vehicle to Mohinder Pal, respondent No. 7 in this appeal.

Great emphasis was also laid by Mr. Sharma on the fact, that after issuing the cheque of premium, its drawer did not have enough money on the date of issuance or on the date of accident. As such, appellant cannot be held responsible for payment of the awarded compensation.

Regarding quantum of compensation as well as apportionment Mr. Sharma submitted that his client had been permitted to contest the case u/s 170 of the Motor Vehicles Act before the learned Tribunal below.

After having heard learned counsel for the parties, ordinarily both these pleas would have been gone into by this court. However, first plea is being briefly dealt with. In law the position of a cheque is that in the event of its being encashed, it will date back to the date of its issuance. Once this conclusion is arrived at, plea of Mr. Sharma that it was encashed much after its issuance and also that on the date of accident the drawer did not have enough money in his account, is a plea raised simply to be rejected.

Besides this respondent Nos. 1 to 6 are third parties. Their rights cannot be put in jeopardy even where a cheque is dishonoured. [See Oriental Insurance Co. Ltd. Vs. Inderjit Kaur and Others, and New India Assurance Co. Ltd. Vs. Rula and Others, In such a situation depending on evidence examined by the parties in a given case, court can direct the insured to reimburse the insurer. This situation is not existing in the present case.

As to how provisions of statute relating to public duty are to be interpreted, as in the present case reliance is being placed on Montreal Street Railway Co. v. Normandin AIR 1917 PC 142.

Without going into the other pleas raised it may be appropriate to observe that neither the drawer having not enough money in his account at the time of issuance of the cheque, or on the date of accident; nor the plea of contributory negligence both were raised in the written statement filed before the learned Tribunal below during the course of the proceedings.

Faced with this situation, the learned counsel for the appellant submitted that since policy particulars of the vehicle were not available at the time of filing of the written statement before the learned Tribunal below, as such these pleas could not be incorporated. This plea also merits rejection. Because when the appellant came to know of such particulars, those could be incorporated by applying for amendment of the written statement by the appellant. There is nothing on the file of the Tribunal below if any such attempt was made by the appellant.

No other point is urged.

In view of the aforesaid discussion, there is no merit in this appeal, which is accordingly dismissed leaving the parties to bear their own costs.

All interim orders passed in this case from time to time shall stand vacated forthwith. All pending applications are also disposed of.