FAO No. 245 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 245 of 2010 (O&M) Date of decision: 26.03.2010 The New Babail Co-operative Transport Society Limited ....Appellant Versus Reliance General Insurance Company Limited and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Vikram Singh, Advocate, for the appellants. VINOD K. SHARMA, J.(ORAL) This appeal, by the owner, is directed against the award dated 5.8.2009, passed by the learned Motor Accident Claims Tribunal, Panipat, on issue No.3, which reads as under: - “3. Whether respondent No.3 is not liable to pay the compensation in view of the preliminary objections taken by it in its written statement? OPR.” The respondents/claimant, filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation on account of injuries suffered by him in a motor vehicular accident. The Insurance Company denied its liability for want of insurance policy. On the pleadings of the Insurance Company, issue No.3, referred to above, was framed by the learned Tribunal. Finding on issue No.3 was recorded against the appellant. In view of the fact that for want of premium, the original policies were FAO No. 245 of 2010 (O&M) -2- taken back. Finding on issue No.3, by the learned Tribunal, reads as under: “The evaluation of the statement of RW2 Jai Srivastav Branch Service Manager as well as statement of Jatin Malhotra, Proprietor Ultimate Financial Services it establishes that the vehicle of the respondent No.2 was not insured by respondent No.2 i.e. the insurance company as the premium was returned to respondent No.1 and the original cover note along with 3 carbon copies were deposited with the company and, therefore, no insurance policy was issued in the vehicle in the name of respondent No.2. When Narinder Singh No.2 ower of New Babail Cooperative Society appeared as RW1 in the witness box he deposed in his cross- examination that Mark A Photostat copy of the cover note was obtained by his brother Kuldeep Singh from some agent whose name he did not know. He volunteered that the name of the agent is written on mark A, who is running his office opposite Sugar Mill in a shop. He is running a shop of bicycle repair, but he cannot tell the name of the shop. Mark A was obtained on 5th day, but he cannot tell the month and the year. The original of Mark A is with the agent. On 5th day, he handed over the original of Mark A to his brother and after 2 or 4 days, he had handed over them the Photostat copy of the same and taken over the original with him. He had handed over some other insurance cover of the bus in question. He did not know the name of the company and the same is with his brother. When RW1 again cross-examined by learned counsel for respondent No.3 he deposed that the original of Mark A has spoiled due to rain in the month of July/August, 2007. He also denied the suggestion that on 13.7.2009 he had stated before the Court that the original of mark A was taken FAO No. 245 of 2010 (O&M) -3- over by the agent. His statement was recorded on 13.3.2009 where he also denied the suggestion to be incorrect that he had stated before the court on the last date of hearing that the agent had handed over some other cover note of the bus in question. His statement was confronted with the statement dated 13.3.2009 wherein it is so recorded. From the above statement, one thing is very clear that the respondent No.2 Narinder Singh has continuously changing his statement. Earlier he has deposed in his cross-examination that the original of cover note Mark A was handed over to his brother and after 2-4 days he had handed over the Photostat copy of the same and taken over the original with him. He also deposed that he handed over some other insurance cover of the bus in question, but he did not know the name of the company as the same is with his brother, but on the other day, Narinder Singh RW1 deposed in his statement that the original of Mark A has spoiled due to rain in H month of July/August, 2007 and also denied that the original of Mark A was taken over by the agent whereas the four copies of the cover note along with three carbon copies have been produced in the court by RW2 Manager of the insurance company respondent No.3 which clearly shows that no insurance policy was issued by respondent No.3 in respect of the vehicle in question rather the amount which was deposited by the respondent was returned to the owner by taking back all the original copies. The attested copies of which are Exhibit R2 to Exhibit R5. When the original had been produced by the Manager of respondent No.3 Company, then the statement of RW1 Narinder Singh, President of Respondent No.2 can be believed that the original of Mark A has spoiled due to rain in the month of FAO No. 245 of 2010 (O&M) -4- July/August, 2007, which clearly shows that he has clearly telling a lie in the court. Had the original spoiled due to rain, then there was no occasion for the respondent No.3 company to produce the original along with three carbon copies with a remark of “cancelled.” In this way, it is held that respondent No.1 has tried to play fraud on the company and the Court and has also tried to misled the court and company by making an alteration in the photo copy of the cover note so that the company or the Court may not be able to discover the position of the cover note. As such, no liability can be fastened on respondent No.3 as the vehicle was not at all insured with respondent No.3 and no relation of insured and insurer was between respondent No.2 and 3. Consequently, respondent No.3 is not liable to pay any compensation. Accordingly, the issue is decided in favour of respondent No.3.” The learned counsel for the appellant has challenged the finding on issue No.3, on the plea that the liability could not be avoided, by the Insurance Company, after it was admitted that the policy was in fact issued. The finding of the learned Tribunal, therefore, cannot be sustained, as the dispute, if any, could be raised by the Insurance Company to claim premium, but it could not be pleaded that there was no policy. The learned counsel for the appellant further contends, that for the mistake of the agent, the appellant was not to suffer, as the principal was bound by the acts of his agent. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. It cannot be disputed, that the agent was representing the principal. However, it was for want of FAO No. 245 of 2010 (O&M) -5- payment of premium that the agent sent back the policy, which was directed to be taken back. In fact, in absence of premium no policy could be issued in favour of the appellant. The policy, therefore, was rightly sent back to the Insurance Company and the learned Tribunal rightly held that there was no insurance policy, under which the Insurance Company could be held liable to indemnify the insured/appellant. No merit. Dismissed. (Vinod K. Sharma) Judge March 26, 2010 R.S.