IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Aoneal {C} No. ^°8 /2008 APPELLANT Bajaj Allianz General Insurance Company Limited, Vandana Auto G.E. Road, Raipur At Present -Shiv Mohan Bhawan, Vidhan Sabha Road, Pandri, Raipur (C.G.) VERSUS RESPONDENTS ^ 1) \A ^^&2) ^>yy' ...-•:" ..-9A >?" ....-r::^"^ . <"' ~ C-.-V7 ' '^''"\.'>t'' ^A.--" 3) Miniketan Sahu S/o Late Sapneshawar Sahu, aged about 42 years, R/o Village-Batki, P.0. Singhora, Thana 8s Tahsil Saraipali, District Raipur (C.G.) (Claimant) Parmanand Bhoi S/o Jogendro Bhoi aged about 46 years, R/o Telipara, Near Samlai Mandir, Bargarh, Thana - Bargarh District Bargarh (Orissa) (Driver) Gopal Goyal S/o Ramawatar Goyal. R/o Sarapara, Bargarh, Thana Bargarh, District Bargarh (Orissa) (Owner) 4 ! L MEMORANDUM QF APPEALUNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 1 if' HIGH COURT OF CHHATTISGARH AT BILASPUR MA (C) No.608/2008 APPELLANT Bajaj Allianz Insurance Company General Versus RESPONDENTS Miniketan Sahu and 2 others •\ SB:- Hon. Shri N.K. Agarwal, J PRESENT:- Shri S.S. Rajput, Advocate, for the appellant. Shri Harsh Mahant, Advocate, for the respondent No. 1. ORAL ORDER (29-10-2010) 1. This appeal has been preferred by the appellant/ Insurance Company against the award dated 20-3- 2008 passed by the Ist Additional Motor Accident Claims Tribunal, Mahasamund in Claim Case No. 46/2006. 2. Facts of the case in brief are that on 10-5-2006 at about 8.30 p.m. respondent No. 1/claimant was returning from village Limgaon after treatment of his cattle. When he stopped his motorcycle bearing registration No. CG-06A/9844 and was sitting on his stationary motorcycle in front of Mohan Hotel and talking with one Mohan Patel, respondent No. 2 by driving an Ambassador car bearing regisbration No. OR-17/B-6567 in a rash and negligent manner dashed him from behind and he got thrown and sustained injuries on right hand, head, legs and other parts of the body. He filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming Rs. 11,98,OOO/- as compensation for the injurj.es sustained by him in the motor accident. 1 ^^!Si»>i!sa®^is^^e'''ss'e"ac{,»!w^;i^^^^j.ifc ii^%.»<K?^^, -T ;:•';:| • ^ 5. 6. •\ Learned Tribunal on a close scrutiny of the submission made, evidence led and material placed, awarded Rs. 27,500/- along with interest at fhe rate of 6% per annum. Shri Rajput, learned counsel for the appellant would submit that although premium amount was received and cover note was issued but as no inspection of the vehicle was done by the development officer of the Insurance Company, therefore, the said cover note was canceled and the premium received was refunded. This fact was also admitted by the insurer Gopal Goyal vide his letter dated 28-5-2006 (Ex. D-3) and he conceded that the above vehicle shall be deemed as not insured and, therefore, in view of the above, the vehicle should have been treated as un- insured and learned Tribunal has erred in fastening the liability upon the Insurance Company for payment of compensation to the claimant. On the other hand, Shri Harsh Mahant, learned counsel appearing for the respondent No. 1 would contend that indisputably after taking premium, cover note was issued in favour of the owner of the vehicle and thus the vehicle was legally insured on the date of accident. It may be an agreement between the insurer and the insured subsequent to the date of accident to cancel the policy or to treat the policy as nonest, but the same will not affect claimant's right to recover fhe amount of compensation from the Insurance Company. Therefore, learned Tribunal has rightly awarded compensation against the Insurance Company and the appeal deseryes to be dismissed. I have perused the award unpugned and record of the Tribunal. \: ^.A**?* ,sr^a- 'f'.^. &,u«'»';:%; ^^^^^gj^^ ^^^ssi^^^s^i^si^'s. 8. Indisputably on the date of accident, cover note was issued by the appellant/Insurance Company after getting premium from the owner, however, it appears that after the date of accident, the said cover note was cancelled and the amount of premium was refunded to the owner. This fact was admitted by the owaer vide Ex. D-3 and the owner has consented to treat the above cover note as nonest. In the light of the above facts and circumstances of the case, it is crystal clear that on the date of accident, the vehicle was insured and the claimant being third party has a .nght to recover the amount of award from the appellant/Insurance Company and the Tribunal has rightly awarded compensation to the claimant, however leamed Tribunal was erred in not taking into consideration the document (Ex. D-3) by which the owner himself had agreed to treat the above vehicle as not insured and also received the premiuni back. Therefore, since the contract between the insured and insurer had come to an end, certainly the appellant/Insurance Company is entitled to recover the above amount from the owner of the vehicle. For the foregoing, the appeal is allowed in part. So far as the liability of appellant to pay the amount of compensation to the claimant is concerned, the same is upheld. However, the appellant/ Insurance Company is entitled to recover the above amoiint from the owner/respondent No. 3 by filing execution case before the Tribunal. No order as to costs. 'x \; Sd/- N.K-Agarwai Judge r-"