1 64 fa.1607.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1607 OF 2011 The Oriental Insurance Co. Ltd. ... Appellant Versus Smt. Artidevi Avdesh Rai and others. ... Respondents ----- Mr. Devendranath S. Joshi for the Appellant. ----- CORAM : A.S.OKA, J. DATE : 02 nd September, 2011. P.C. 1 Heard the learned counsel appearing for the Appellant. 2 The Appellant is the Insurer of the vehicle involved in the accident. The Respondent Nos.1 and 2 are the claimants, who filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 on account of death of their son in a motor accident. By the impugned judgment and award, compensation of Rs.2,48,700/- alongwith interest has been granted. There does not seem to be any dispute about the accident and the involvement of the vehicle insured with the Appellant 2 64 fa.1607.11 in the accident. The only contention raised by the Appellant was that the accident occurred on 1 st December, 2007 and the policy of the insurance issued by the Appellant was with effect from 4 th December, 2007 and therefore, there was no insurance coverage on the date of the accident. The finding recorded by the Tribunal is that the Insured had submitted proposal form for renewal of the earlier policy and had paid premium amount to the agent appointed by the Appellant and there was a delay on the part of the agent to submit the documents to the Appellant. 3 The learned counsel appearing for the Appellant has placed on record a certified copy of the deposition of Mr.Sanjay Gajanan Kadam, Administrative Officer of the Appellant. He has also placed on record photocopies of the proposal form and cover note issued by the Appellant. He submitted that there is absolutely no evidence on record to show that the proposal form and premium were submitted by the Insured to the broker appointed by the Appellant on or before 1 st December, 2007. He submitted that the Insured has not 3 64 fa.1607.11 stepped into witness box and no evidence has been adduced to prove that the proposal form alongwith premium amount were submitted on or before 1 st December, 2007. He submitted that there is no evidence on record to prove that the proposal form was submitted on 23 rd November, 2007 alongwith the premium amount by the Insured to the broker. His submission is that as the Insured has not led any evidence, case made by the Appellant ought to have been accepted. 4 I have given careful consideration to the submissions. It is not in dispute that the date of the proposal form submitted by the Insured is 23 rd November, 2007. The proposal form alongwith the premium amount was forwarded by the M/s. Synerjee Broking Insurance Services Private Limited to the Appellant. It is an admitted position that the said company was working as a broker of the Appellant. The proposal form records that the policy was due for renewal on 23 rd November, 2007. The period of insurance mentioned in the proposal form is from 23 rd November, 2007 to 22 nd November, 2008. In the examination-in-chief, Mr.Sanjay Gajanan Kadam stated 4 64 fa.1607.11 that the Appellant received the proposal form at Exhibit – 60 after office hours on 3 rd December, 2007 and therefore, the policy was issued on the next date. In the cross-examination, he admitted that the Insured purchased the policy through broker of the Appellant. There is a clear admission that the Insured had handed over all the documents and the proposal form to the broker prior to 3 rd December, 2007. The witness admitted that he has no personal knowledge as to when the Insured handed over proposal form and premium amount to the broker. He also admitted that the broker has issued cheques in favour of the Appellant regarding amount collected by him relating to several proposals. The witness admitted that he has not brought cash book in which the entries regarding receipt of premium have been made. The witness admitted that the broker submitted a proposal form alongwith premium amount to the Appellant. 5 Thus, the admitted position which emerges is that the broker appointed by the Appellant had received the proposal form for renewal of the policy and premium amount prior to 3 rd December, 2007. 5 64 fa.1607.11 The date reflected from the proposal form of submission of the same is 23 rd November, 2007. It was for the Appellant to examine its own broker to prove that the proposal form and premium amount was not deposited by the Insured on or before 1 st December, 2007. However, the Appellant made no efforts to examine the broker. The Insured had admittedly paid the premium amount and submitted the proposal form prior to 3 rd December, 2007 to the agent appointed by the Appellant, who was empowered to receive the proposal form alongwith the premium amount. As the proposal form shows the date of 23 rd November, 2007, in absence of examination of the broker, the Tribunal has correctly drawn an inference that the proposal form alongwith the premium amount must have been received by the agent of the Appellant on 23 rd November, 2007. In view of the stand taken by the Appellant that the proposal form alongwith the premium amount were received by its own agent prior to 3 rd December, 2007. the burden shifted on the Appellant to prove the fact that the same was not submitted on 23 rd November, 2007 and the same was submitted after 6 64 fa.1607.11 the accident. 6 Thus, the Tribunal is right in holding that the Appellant has failed to establish his defence and that the policy was valid from 23 rd November, 2007. 7 No case for interference is made out in this appeal. The same is accordingly dismissed with no order as to costs. 8 A sum of Rs.25,000/- deposited by the Appellant shall be refunded to the Appellant. 9 The Civil Application No.3487 of 2011 does not survive and the same is disposed of. [ A.S.OKA, J ]