IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO M.F.A.No.841 OF 2010 (MV) Between:
Bajaj Allianz General Insurance Company Limited GE Plaza, Airport Road Yerawada, Pune-411006 By its Senior Manager …Appellant (By Smt. H.R.Renuka, Advocate) And:
1. Chikkamma W/o Naganna Aged about 65 years Ro Lakkenahalli Kasaba Hobli, Gubbi Taluk 2. T.B.Rudresh, Adult No.50, RMV II Stage III Block, Devasandra Bengaluru – 54 …Respondents (By Sri Jagadish G.K., Adv. for Sri Gopalakrishna N, Advocate for R-1 & Sri R.Premakumar, Advocate for R-2) This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 30.09.2009 passed in MVC No.1284/2005 on the file of the Civil Judge (Sr.Dn) and Additional MACT, Gubbi awarding compensation of Rs.24,330/- together with 6% interest from the date of petition till realization.
This MFA coming on for final hearing this day, the Court delivered the following:
JUDGMENT This appeal is directed against the judgment and award passed by the Civil Judge (Sr.Dn) and Additional MACT, Gubbi, on 30.09.2009 in MVC No.1284/2005 filed by respondent No.2 herein, which came to be allowed in part and the claimant was awarded an amount of Rs.24,330/- together with interest @ 6% per annum from the date of petition till realization.
2. In order to avoid confusion and overlapping, the parties, hereinafter, are referred in accordance to their respective rankings held before the Tribunal.
3. The case pertains to an accident which occurred on 16.08.2005 at about 04.30 pm at Lakkenahalli village, within the jurisdiction of Gubbi police, wherein a motor car bearing Reg.No.KA-05/N-9641 being driven in rash and negligent manner bound to Mudigere, dashed against the petitioner and caused injuries and he took treatment at Siddartha Medical College Hospital, Tumakuru. It is also stated that he was an agriculturist and earning Rs.3,000/- per month. Hence, he sought for compensation. The Tribunal after examining the materials on record, awarded compensation as under:
1. Towards pain and agony Rs.5000/-
2. Towards attendants and nourishment charges Rs.500/-
3. Towards medical expenses Rs.3300/-
4. Towards loss of income during the Period of treatment and rest Rs.13500/-
5. Towards loss of comforts Rs.2000/-
Total Rs.24330/-
4. Learned counsel Smt. H.R.Renuka, for appellant – insurer would submit that it was a case wherein premium paid by the insured by way of cheque, came to be dishonored and as such, the policy was cancelled by the insurer prior to the date of accident and the same was duly intimated to the insurer through a letter by registered post as well as certificate of posting, but the Tribunal without considering these aspects, wrongly fastened the liability on the insurer. Hence, sought to allow the appeal by absolving the insurer from paying the award amount.
5. Learned counsel Sri Jagadish G.K., for Sri Gopalakrishna N, for respondent No.1-insured would submit that the insurer has not discharged the mandatory burden regarding non payment of premium under a Negotiable Instrument and hence, the Tribunal has rightly considered the case and there is no error in the award passed by the Tribunal. Hence, sought to dismiss the appeal.
6. The moot question for consideration would be, whether the agreement or contract was in existence on the date of accident and whether the insurer is liable to pay compensation?
7. The undisputed facts are, cheque was issued by the insured bearing No.265931 dated 07.06.2005 for Rs.3,764/- towards the insurance premium in respect of the offending vehicle for the period from 07.06.2005 to 06.06.2006; the policy was issued covering the period from 07.06.2005 to 06.06.2006; the date of accident is on 16.08.2005; the cheque was presented by the insurer for encashment on 08.06.2005; the insurer was intimated about dishonor of the cheque for insufficient funds on 10.06.2005; the insurance company got issued legal notice canceling the policy on 14.06.2005 for the dishonor of the cheque issued towards policy premium by the insured and the accident occurred on 16.08.2005.
8. It is necessary to note that the communication of cancellation of policy for dishonor of the cheque issued towards policy premium should be effective and complete before the date of accident in which eventthe insurer will be absolved from the liability. In this connection, learned counsel Smt. H.R.Renuka, for the insurer would submit that the notice was sent through registered post as well as certificate of posting. The notice sent through certificate of posting was served on the insured. However, the date of service was not mentioned.
9. In the context and circumstances, it is to be noted that service of notice would become complete when it is evidenced by reliable circumstances or relevant documents as available in case of registered post wherein there will be an entry in the postal department followed by an acknowledgment, which the sender gets after service of notice. At the same time, the receipt for having posted would be available with the sender, irrespective of service or otherwise. However, in the present case, it is submitted the notice sent through certificate of posting was served. The appellant may claim that he has sent the notice through certificate of posting on the basis of stamped address. But it cannot be presumed that the insurance company is having a direct or personal or circumstantial knowledge of the service of notice, regard being had to the fact that the registered notice was not having acknowledgment and it was not received by the insurer to know the actual date of service of notice. It was also submitted that the postal department informed them as the matter was six months old, they are not in a position to track and give the result of the delivery of registered post. In the circumstances, service of notice in an effective and complete manner cannot be presumed to have absolved the liability of the insurer.
10. In the absence of documents to show the service of notice of cancellation of policy before the accident, it cannot be held that the insurer is not liable to pay the compensation. Accordingly, the appeal fails. Hence, the following:
O R D E R (a) The appeal is dismissed.
(b) The judgment and award passed by the Civil Judge (Sr.Dn) and Additional MACT, Gubbi dated 30.09.2009 in MVC No.1284/2005 stands confirmed.
(c) Amount in deposit, if any, shall be transmitted to the Tribunal, for disbursal along with LCR.
Kmv* Sd/- JUDGE