Dismissed

Hdfc Ergo General Insurance Co.Ltd., v. Doddaga Sakunthala

Andhra Pradesh HC22 Feb 2024MACMA/1532/2016

Case brief

AI extract

What is this about?

The High Court dismissed two motor accident claims appeals filed by an insurance company against compensation awards for deaths in a lorry accident. The court held that the insurer failed to prove it cancelled the policy before the accident and relied on a precedent that a cover note remains valid until cancelled.

What did the court decide?

Common judgment of the Motor Vehicles Accident Claims Tribunal awarding compensation to the heirs of deceased victims was confirmed and the appeals were dismissed.

Hdfc Ergo General Insurance Co.Ltd., Vs Doddaga… — Motor Accident Claims | Andhra Pradesh HC (2024)

¶1

IN THE HIGH COURT OF ANDHRA PRADESH AMARAVATI

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FRIDAY ,THE TWENTY THIRD DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU

¶5

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 1513 OF 2016

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Between:

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HDFC ERGO General Insurance Co.Ltd., Rep.by its Manager, Nellore, Having its office at Subedarpet, Nellore.

¶8

...Appellant/RespondentNo.2

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AND

¶10

G Amulu, W/o.Late.Chandraiah, Aged about 44 Yrs,^R/o.Aranduru Village, Varadayyapalem Mandal, Chittoor District. Presently R/o.Kudiri Village, Sullurpet Mandal, SPSR Nellore District.

¶11

Gorripati Nagarjuna, S/o.Late.Chandraiah, Aged about 24 Yrs, R/o.Aranduru Village, Varadayyapalem Mandal, Chittoor^District. Presently R/o.Kudiri Village, Sullurpet Mandal, SPSR^{NelloreDistrict.}

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Gorripati Nagaiah, S/o.Late.Chandraiah, Aged 17 Yrs, Minor, Rep.by Resp.No. 1

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Gorripati Ramu, S/o.Late.Chandraiah, Aged 16 Yrs, Minor, Rep.by Resp.No.1

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.. .Respondents/Petitioners

¶15

Sarvareddy Subrahmanyam Reddy, S/o.Munuswamy Reddy, Lorry owner, R/o.Nandimala Village, Pellakuru Mandal, SPSR^{NelloreDistrict.} (R5 is not necessary)

¶16

...Respondents/ Respondents

¶17

Appeal filed under Section 173 of M.V Act, aggrieved by the orders M.V.O.P.No.868 of 2011, dated 30.10.2015 on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal-cum-l Addl. District Judge Nellore.

¶18

This appeal coming on for hearing and upon perusing the grounds of appeal, the judgment and Decree of the Lower Court and material papers in the Suit and upon hearing arguments of Sri Kota Subba Rao, Advocate for the

¶19

Appellant and of Sri Siva Prasad Reddy Venati. Advocate^{forRespondent} Nos. 1 to 4.

¶20

This Court doth Order and decree as follows:

¶21

That the M.A.C.M.A be and is hereby dismissed. dated 30.10.2015, in

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2 That the common judgment, M.V.O.P.Nos.868 and 869 of 2011 on the file of Motor^Vehicle Accident Claims Tribunal-cum-l Additional District Judge, Nellore, Nellore District be and is hereby confirmed.

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That there shall be no order as to costs in this^appeal.

¶24

Sd/- M PRABHAKAR RAO ASSISTANT REGISTRAR

To,

//TRUE COPY//

SECTION OFFICER

The Chairman, Motor Vehicles Accidents Claims Tribunal-cum-l Addl. District Judge, Nellore, SPSR Nellore District

¶29

Three CD copies

vna

HIGH COURT

DATED:23/02/2024

i 9 «

DECREE

MACMA.No.1513 of 2016

¶36

DISMISSING THE M.A.C.M.A

¶37

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

¶39

FRIDAY ,THE TWENTY THIRD DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

¶40

PRESENT

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THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU

¶42

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 1532 OF 2016

¶43

Between;

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HDFC ERGO General Insurance Co.Ltd., Rep.by its Manager, Nellore, Having its office at Subedarpet, Nellore.

¶45

...Appellant/ Respondent No.2

¶46

AND

¶47

Doddaga Sakunthala, W/o.Late.Raghavaiah, Aged about 38 Yrs, R/o.Rachupalyam Village, Satyavedu Mandal, Chittoor^District. Presently R/o.Manganellore Village, Sullurpet Mandal, SPSR^Nellore District.

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Doddaga Nagamani, D/o.Late.Raghavaiah, aged about 15 Yrs, Minor, Rep.by Resp.No.1, Mother.

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Doddaga Ramasubbamma, W/o.Late,Konaiah, Aged about^70Yrs R/o.Rachupalyam Village, Satyavedu Mandal, Chittoor District Presently R/o.Manganellore Village, Sullurpet Mandal, SPSR Nellore District

¶50

... Respondents/Petitioners

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Sarvareddy Subrahmanyam Reddy, S/o.Munuswarny Reddy, Lorry owner, R/o.Nandimala Village, Pellakuru Mandal, SPSR Nellore District.

¶52

(R-4 is not necessary)

¶53

...Respondents/ Respondents No.1

¶54

Appeal filed under Section 173 of M.V Act, aggrieved by the orders passed by way of judgment and Decree in M.V.O.P.No.869 of 2011, dated 30.10.2015 on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal-cum-l Addl. District Judge Nellore.

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*>■

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Appellant and of Sri Siva Prasad Reddy Venati, Advocate for Respondent Nos. 1 to 3.

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This Court doth Order and decree as follows:

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That the M.A.C.M.A be and is hereby dismissed 2. That the common judgment, dated 30.10.2015, in M.V.O.P.Nos.868 and 869 of 2011 on the file of Motor Vehicle Accident Claims Tribunal-cum-l Additional District Judge, Nellore, Nellore District be and is hereby confirmed.

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That there shall be no order as to costs in this appeal.

¶61

Sd/- M PRABHAKAR RAO ASSISTANT REGISTRAR

//TRUE COPY//

To,

SECTION OFFICER

The Chairman, Motor Vehicles Accidents Claims Tribunal-cum-l Addl. District Judge, Nellore, SPSR Nellore District

¶66

Three CD copies VNA

HIGH COURT

DATED:23/02/2024

DECREE

MACMA.No.1532 of 2016

¶71

A N D H
O
(x 0 8 MAY 202*1 J
^..QgSPATCWSV

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DISMISSING THE M.A.C.M.A

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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FRIDAY ,THE TWENTY THIRD DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU

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jyi.A.C.M.A Nos. 1513 OF 2016 and 1532 of 2016

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 1513 OF 201R

¶79

¶80

Between:

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HDFC ERGO General Insurance Co.Ltd., Rep.by its Manager, Nellore, Having its office at Subedarpet, Nellore.

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...Appellant/Respondent No.2

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AND

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G Amulu, W/o.Late.Chandraiah, Aged about 44 Yrs, R/o.Aranduru Village, Varadayyapalem Mandal, Chittoor District. Presently R/o.Kudiri Village, Sullurpet Mandal, SPSR Nellore District.

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Gorripati Nagarjuna, S/o.Late.Chandraiah, Aged about 24 Yrs, R/o.Aranduru Village, Varadayyapalem Mandal, Chittoor District. Presently R/o.Kudiri Village, Sullurpet Mandal, SPSR Nellore District.

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Gorripati Nagaiah, S/o.Late.Chandraiah, Aged 17 Yrs, Minor, Rep.by Resp.No. 1

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Gorripati Ramu, S/o.Late.Chandraiah, Aged 16 Yrs, Minor Rep.by Resp.No.1

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... Respondents/Petitioners

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5, Sarvareddy Subrahmanyam Reddy, S/o.Munuswamy Reddy, Lorry owner, R/o.Nandimala Village, Pellakuru Mandal, SPSR Nellore District. (R5 is not necessary)

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...Respondents/ Respondents

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LA. NO: 1 OF 2016fMACMAMP. NO: 1912 OF 2016^

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit fiied in support of the petition, the High Court may be pleased to stay the execution of decree and judgment passed in M.V.O.P.NO. 868 of 2011 dated 30.10.2015 on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal-cum-l Addl. District Judge Nellore and pending the final disposal of the main appeal

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Counsel for the Appellant: Sri. Kota Subba Rao

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Counsel for the Respondents: Sri Sivaprasad Reddy Venati

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jyiOTOR ACCIDENT CIVIL MISCELLANPOllfi appfai nO: 1532 OF 2016

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Between:

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HDFC ERGO General Insurance Co.Lld., Rep.by its Manager, Nellore, Having its office at Subedarpet, Nellore.

¶99

...Appellant/ Respondent No.2

¶100

AND

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Doddaga Sakunthala, W/o.Late.Raghavaiah, Aged about 38 Yrs, R/o.Rachupalyam Village, Satyavedu Mandal, Chittoor District. Presently R/o.Manganellore Village, Sullurpet Mandal, SPSR Nellore District.

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Doddaga Nagamani, D/o.Late.Raghavaiah, aged about 15 Yrs, Minor, Rep.by Resp.No.1, Mother.

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Doddaga Ramasubbamma, W/o.Late,Konaiah, Aged about 70 Yrs, R/o.Rachupalyam Village, Satyavedu Mandal, Chittoor District. Presently R/o.Manganellore Village, Sullurpet Mandal, SPSR Nellore District

¶104

... Respondents/Petitioners

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Sarvareddy Subrahmanyam Reddy, S/o.Munuswarny Reddy, Lorry owner, R/o.Nandimala Village, Pellakuru Mandal, SPSR Nellore District. (R-4 is not necessary)

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...Respondents/ Respondents No.1

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l-A. NO: 2 OF 2016rMACMAMP. NO: 1957 OF 2Q1fi)

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under Section 151 CPC praying that in the circumstances s ated in the affidavit filed in support of the petition, the High Court may be execution of decree and Judgement in MVOP No.869/2011 dated 30.10.2015 on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal cum I Addl. District Judge Nellore and pending the final disposal of the main appeal Counsel for the Appellant: Sri Kota Subba Rao Counsel for the Respondent Nos. 1 to 3 : Sri Sivaprasad Reddy Venati The Court made the following: COMMON JUDGMENT

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IN THE COURT OF THE ANDHRA PRADESH :: AMARAVATI

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FRIDAY, THE TWENTY THIRD DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU MOTOR ACCIDENT CIVIL MISCELLANEOUS APPFAI Mn1513 OF 2016

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Between:

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HDFC ERGO, NELLORE, Rep.by its Manager, Nellore, Having its office at Subedarpet, Nellore.

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■■■ APPELLANT

¶116

AND

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G. Amulu, W/o.Late.Chandraiah, Aged about 44 Yrs R/o.Aranduru Village, Varadayyapalem Mandal, Chittoor Presently R/o.Kudiri Village, Sullurpet Mandal,

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SPSR Nellore District.

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Gorripati Nagarjuna, S/o.Late.Chandraiah, Aged about²⁴ Yrs, R/o.Aranduru Village, Varadayyapalem Mandal, Chittoor District. Presently R/o.Kudiri Village, Sullurpet Mandal, SPSR Nellore District.

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Gorripati Nagaiah, S/o.Late.Chandraiah, Aged 17 Yrs, Minor, Rep.by Resp.No.l .

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Gorripati Ramu, S/o.Late.Chandraiah, Aged 16 Yrs, Minor Rep.by Resp.No.l

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Sarvareddy Subrahmanyam Reddy, S/o.Munuswamy Reddy Lorry owner, R/o.Nandimala Village, Pellakuru Mandal, SPSR Nellore District. (R5 is not necessary)

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■• ■

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RESPONDENTS

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MOTOR ACCIDENT CIVTI MISCELLANEOUS APPFAI NO1532 OF 201fi

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Between:

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Nellore,HDFC ERGOHavingGeneralits officeInsuranceat Subedarpet,Co.Ltd.,Nellore.Rep.by its Manager^ '

...APPELLANT

AND

Doddaga Sakunthala, W/o.Late.Raghavaiah, Aged about 38 Yrs, R/o.Rachupalyam Village, Satyavedu Mandal, Chittoor District. Presently R/o.Manganellore Village Sullurpet Mandal, SPSR Nellore District.

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Doddaga Nagamani, D/o.Late.Raghavaiah, aged about¹⁵ Yrs, Minor, Rep.by Resp.No.l, Mother.

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Doddaga Ramasubbamma, W/o.Late,Konaiah, Aged about 70 Yrs, R/o.Rachupalyam Village, Satyavedu Mandal, Chittoor District. Presently R/o.Manganellore Village, Sullurpet Mandal, SPSR Nellore District

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Sarvareddy Subrahmanyam Reddy, S/o.Munuswarny Reddy, Lorry owner, R/o.Nandimala Village, Pellakuru Mandal, SPSR Nellore District.

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...RESPONDENTS

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The Court made the following:

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COMMON JUDGMENT:-

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Challenge in M.A.C.M.A.No.l513 of 2016 is to the award, dated 30.10.2015, in M.V.O.P.No.868 of 2011 on the file of Motor Vehicle Accident Claims Tribunal-cum-I Additional District Judge, Nellore, Nellore District ("Tribunal for short), whereunder the Tribunal dealing with the claim of the claimants to award compensation of Rs.5,00,000/- on account of the death of the deceased Gorripati Chandraiah in a motor vehicle accident occurred on 27.05.2011, awarded the compensation of Rs.7,42,500/-.

¶139

Challenge in M.A.C.M.A.No.l532 of 2016 is to the award, dated 30.10.2015, in M.V.O.P.No.869 of 2011 on the file of the Tribunal, whereunder the Tribunal dealing with the claim of the

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claimants to award compensation of Rs.5,00,000/on account of the death of the deceased Doddaga Raghavaiah ini a motor vehicle accident occurred on 27.05.2011, awarded the compensation of Rs.6,75,000/-.

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The parties to these both M.A.C.M.A.'s will hereinafter be referred to as described before the learned Tribunal for the sake of convenience.

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M.V.O.P.Nos.868 and 869 of 2011, filed by the respondents/claimants herein were disposed of by the Tribunal vide a common judgment on 30.10.2015.

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The case of the claimants, in brief, in M.V.O.P.No.868 of 20H, according to the averments in the claim petition , is that:

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(i) The deceased Gorripati Chandraiah was a multipurpose coolie. He was earning Rs.300/- per day. He was contributing his entire earnings to the maintenance of his family. He was aged 39 years and hale and healthy as on the date of the accident.

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(ii) On 27.05.2011, the deceased along with others went to Srikalahasthi Village, to attend coolie work. After completion of the work, when they all were standing near the Srikalahasthi bus stand to reach their villages, the driver of the lorry bearing No.AP 26 TA 2599 ('offending vehicle' for short) came there along with cement load in the said lorry and

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requested the deceased and others to act as unloading^cooliesto unload the cement bags at Satyavedu Village, on payment of coolie. Accordingly, the deceased and others have accepted^for the said proposal and were travelling in the said lorry in the capacity of unloading coolies. At about 10.00 p.m.,^when the lorry reached Tanikallu X road, B.N.Khandriga Mandal, Chittoor District, the driver of the said lorry drove the same in a rash and negligent manner in high speed and lost control over the said vehicle and there by the said lorry turned turtle. Due to the said accident, the inmates in the lorry received injuries,^outofthem the deceased Chandraiah and one Raghavaiah died due to injuries sustained by them, (iii) Respondent No.l has insured the vehicle under valid insurance policy as on the date of the accident with the respondent No.2. Respondent No.2 has to indemnify the respondent No.l to pay the compensation since the offending vehicle was insured with it. Thus, both the respondents are jointly and severally liable to pay the compensation amount^to the claimants. Hence, the petition. 5. (i) Respondent No.l did not contest the proceedings and remained exparte. (ii) Respondent No.2 filed counter stating that the lorry owned by respondent No.l was not validly insured with the

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respondent No.2 and the driver who drove the lorry was not holding valid driving license to drive the said vehicle at the time of accident. The amount of compensation claimed by the claimants is excessive and the petition liable to be dismissed. (iii) Respondent No.2 filed additional counter stating^that the cover note bearing No.002300460863 is not valid. In the present case, the premium cheque bearing No.867562, dated 05.02.2011, drawn on Andhra Bank, Naidupet Branch, was dishonored with the remarks 'Insufficient fund'. In view of this, the cover note and policy of insurance are ineffective. As there is a violation of Section 64 of VB Insurance Act, i.e., no receipt of premium/consideration, no liability whatsoever can be fastened against the respondent. The respondent No.2 duly intimated to the respondent No.l vide letter, dated 05.02.2011 that the said policy stands cancelled from its inception date due to non-realization of the premium cheque. As the said policy was duly cancelled from inception, respondent No.2 is not liable to pay any amount as the said vehicle was not duly insured with the respondent. 6. On the basis of the said pleadings, the Tribunal settled the following issues for trial:

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(1) Whether the pleaded accident was occurred on account of rash and negligent driving of the Lorry bearing^No.AP

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26 TA 2599 by its driver and whether it resulted death of Goripati Chandraiah [deceased]?

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(2) Whether the petitioner is entitled for compensation? If so, to what amount and from which of the respondents?

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(3) To what relief?

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The case of the claimants in brief, in M.V.O.P.No.869 of 2011, according to the averments in the claim petition, is that:

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(i) The deceased Doddaga Raghavaiah was a multipurpose coolie. He was earning Rs.300/- per day.^Hewas contributing his entire earnings to the maintenance of his family. He was aged 37 years and hale and healthy as on the date of the accident.

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(ii) On 27.05.2011, the deceased along with others went to Srikalahasthi Village, to attend coolie work. After completion of the work, when they all were standing^nearthe Srikalahasthi bus stand to reach their villages, the driver of the lorry bearing No.AP 26 TA 2599 ('offending vehicle' for short) came there along with cement load in the said lorry and requested the deceased and others to act as unloading^cooliesto unload the cement bags at Satyavedu Village, on payment^of coolie. Accordingly, the deceased and others have accepted^for the said proposal and were travelling in the said lorry in the capacity of unloading coolies. At about 10.00 p.m., when^the lorry reached Tanikallu X road, B.N.Khandriga Mandal, Chittoor

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District, the driver of the said lorry drove the same in a rash and negligent manner in high speed and lost control over the said vehicle and thereby the said lorry turned turtle. Due to the said accident, the inmates in the lorry received injuries, out of them the deceased Raghavaiah and one Chandraiah died due to injuries sustained by them,

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(iii) Respondent No.l has insured the vehicle under valid insurance policy as on the date of the accident with the respondent No.2. Respondent No.2 has to indemnify the respondent No.l to pay the compensation since the offending vehicle was insured with it. Thus, both the respondents are jointly and severally liable to pay the compensation amount to the claimants. Hence, the petition.

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(i) Respondent No.l did not contest the proceedings and remained exparte.

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(ii) Respondent No.2 filed counter stating that the lorry owned by respondent No.l was not validly insured with the respondent No.2 and the driver, who drove the lorry,^was not holding valid driving license to drive the said vehicle at the time of accident. The amount of compensation claimed by the claimants is excessive and the petition liable to be dismissed, (iii) Respondent No.2 filed additional counter stating^that the cover note bearing No.002300460863 is not valid. In the

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present case, the premium cheque bearing No.867562, dated 05.02.2011 drawn on Andhra Bank, Naidupet Branch, was dishonored with the remarks 'Insufficient fund'. In view of this, the.cover note and policy of insurance are ineffective. As there is a violation of Section 64 of VB Insurance Act, i.e., no receipt of premium/consideration, no liability whatsoever can be fastened against the respondent. The respondent No.2 duly intimated to the respondent No.l vide letter, dated 05.02.2011 that the said policy stands cancelled from its inception date due to nonrealization of the premium cheque. As the said policy was duly cancelled from inception, respondent No.2 is not liable to pay any amount as the said vehicle was not duly insured^withthe respondent.

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On the basis of the said pleadings, the Tribunal settled the following issues for trial:

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(1) Whether the pleaded accident was occurred on account of rash and negligent driving of the Lorry bearing^No.AP 26 TA 2599 by its driver and whether it resulted death of Doddaga Raghavaiah [deceased]?

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(2) Whether the petitioner is entitled for compensation? If so, to what amount and from which of the respondents? (3) To what relief?

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While so, when both the M.V.O.P.Nos.868 and 869 of 2011 were coming for trial, a memo was filed to conduct a joint trial in M.V.O.P.Nos.868 and 869 of 2011 and accordingly, the

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Tribunal clubbed both the O.P.'s and recorded evidence i n M.V.O.P.No.868 of 2011. 11. On behalf of the petitioners/claimants, before the Tribunal PWs.l to 3 were examined and Exs.Al to A7 were marked. On behalf of the respondents, RW.l was examined and Exs.Bl to B3 were marked. 12. The learned Tribunal on hearing both sides and after considering the oral and documentary evidence, answered the issues in favour of the petitioners-claimants and awarded compensation of Rs.7,42,500/in M.V.O.P.No.868 of 2011, accordingly apportioned the compensation amount among the petitioner Nos.l to 4/claimants. Insofar as M.V.O.P.No.869 of 2011 is concerned, the Tribunal awarded compensation of Rs.6,75,000/and apportioned the compensation amount among the petitioner Nos.l to 3/claimants. 13. Felt aggrieved of the aforesaid awards of the Tribunal,^the unsuccessful respondent No.2/Insurance Company i.e., HDFC ERGO General Insurance Co., Ltd., filed the present M.A.C.M.A's. 14. In the light of the contentions advanced, in deciding^the present M.A.C.M.A's., the point that arises for consideration is:

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Whether the contention of the appellant to disown the responsibility from paying the compensation to the claimants on the ground that the insurance policy which was granted in favor of the offending vehicle at the

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instance of the owner of the vehicle was not in force on account of the fact that the cheque issued by the owner of the offending vehicle remained dishonored is tenable under law?

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POINT:

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Learned counsel for the appellant Sri Kota Subba Rao, would canvas a contention that the cheque issued by the owner of the vehicle was dishonored and it was duly communicated to him by way of a letter, as such the cover note issued by the Insurance Company is not valid, as such there was no justification on the part of the Tribunal in fixing the liability against the appellant, as there was no valid policy in force. His another submission is that even otherwise, both the deceased were gratuitous passengers, who were travelling^inthe vehicle without any authorization, as such the Insurance Company need not bound by the insurance policy.

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On the other hand, Sri Siva Sai Datta, learned counsel representing the learned counsel for the contesting respondents/claimants, would submit that the owner of the offending vehicle was not at all intimated by the Insurance Company about the factum of dishonor of cheque and it was born out in the evidence that the Insurance Company^did not produce any piece of paper to show that it duly communicated to the owner about the cheque dishonor. He would submit that

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on thorough analyzation of evidence, the Tribunal found that the policy was in force, unless it is cancelled. As such as on the date of accident, the policy was in force. As such the Tribunal rightly fixed the liability. He would submit that the deceased was travelling in the cabin of the lorry as a coolie to unload the load and he was not at all a gratuitous passenger. With the above contention, he would seek to dismiss the appeals.

¶178

The facts as borne out by the record, presents a situation that pertaining to the accident in question in Crime No.34 of 2011, the claim in M.V.O.P.Nos.868 and 869 of 2011 arose by two sets of claimants being the legal heirs of the two deceased. 18. PW.l-Gorripati Ammulu, was the wife of the deceased Gorripati Chandraiah, in M.V.O.P.No.868 of 2011. PW.2-Doddaga Sakuntala, was the wife of the another deceased Doddaga Raghavaiah, in M.V.O.P.No.869 of 2011.

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PW.3 before the Tribunal was the witness, who witnessed the occurrence. PW.l, the petitioner No.l in M.V.O.P.No.868 of 2011 and PW.2, the petitioner No.l in M.V.O.P.No.869 of 2011, got filed their respective chief examination affidavits putting forth the facts in tune with their pleadings. Ex.A2^andEx.AS are the Postmortem Reports pertaining to the husband of petitioner No.l in M.V.O.P.No.868 of 2011 and the husband of petitioner No.l in M.V.O.P.No.869 of 2011. Similarly, Ex.A3 and Ex.A6

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were the copies of respective inquest reports. PW.3 was the direct witness to the occurrence, who supported the claim of the claimants. It was born out from the evidence that both the deceased working as multipurpose coolies, were waiting and then they were requested by the driver to act as unloading collies and allowed them to board the lorry on payment^offare. After that the lorry met with accident on account of rash and negligent driving of the driver in driving the offending vehicle. So, Respondent No.l, owner of the lorry, remained exparte^and he did not contest the claims. RW. 1-representative of the Insurance Company was not a witness to the occurrence. The outcome of the investigation was also by filing a charge^sheet against the driver of the offending vehicle. The Tribunal, basing on the overall appreciation of the evidence on record, gave findings that the accident was occurred on account of rash and negligent act made by the driver of the offending lorry bearing No.AP 26 TA 2599. Those findings are not sought to be challenged in the present appeals. 20. The only ground on which the findings of the Tribunal^are sought to be disturbed are that both the deceased were gratuitous passengers and that Ex.Bl-the cover note of insurance policy was not valid, because owner failed to comply

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with honoring the cheque issued towards payment to the Insurance Company.

¶184

It is to be noted that, the evidence of PWs.l and 2^madeit clear that the deceased were traveling in the cabin of the lorry not as gratuitous passengers but as coolies to unload the cement bags, by paying hire to the driver. There was^nodispute that the seating of both the deceased in the cabin^ofthelorry was in accordance with the seating capacity. So, when the evidence reveals that they were travelling in the cabin of the lorry to unload the load, the Tribunal negatived the^contention. Though the Insurance Company contended that driver^ofthe lorry had no valid driving license, but the Insurance^Company also failed to probablise the said contention. 22. Now, coming to the contention of the appellant that,^there was no valid policy on account of the fact that the^chequethat was issued by the owner of the offending vehicle towards^Ex.Bl policy remained dishonored, this Court would like to^make it clear that, as evident from the evidence of the representative^of the Insurance Company i.e., RW.l, he deposed that there^was no proof with them to show that their company duly^intimatedto the insured about dishonor of the cheque or the cancellation^of the policy. It is to be noted that according the appellant^inboth the appeals, it issued Ex.A7-Insurance Company policy^orthe

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cover note. There is no dispute as evident from the aforesaid document that it was issued on 05.02.2011. The accident was occurred on 27.05.2011. Ex.A7 further whispers that it is valid from 05.02.2011 to 04.02.2012. Contention of the appellant is that the cheque issued by the owner of the vehicle towards Ex.A7 was dishonored. It is to be noted that through RW.l, Ex.Bl to EX.B3 were marked. They were cheque bearing No.867572, endorsement dated 05.02.2011 and cheque^return memo. It is to be noted that the factum of dishonor would only be intimated to the person who presented the cheque. Here, the Insurance Company claimed to have presented the cheque before the bank, which was said to be dishonored. If that be the situation, it was the bounden duty of the Insurance Company to intimate to the owner about the factum of dishonor of the cheuqe. If the Insurance Company cancelled Ex.A7 immediately after coming to know about the dishonor, it should have intimated to the owner about the factum of cancellation. So, the fact remained is that no piece of paper was filed by the contesting Insurance Company before the Tribunal that they duly intimated to the owner about the dishonor of cheque or cancellation of the policy. 23. As seen from the common judgment of the Tribunal, it relied upon a decision of High Court of Andhra Pradesh at

¶187

¶188

Hyderabad in New India Assurance Co., Ltd., vs.Yedlepaga

¶189

Ramudu and another^ It is appropriate to refer the finding of the High Court which runs as follows:

¶190

"Indisputably, the respondent No.l is a third party in relation to the contract of insurance which had been entered into by and between the appellant and the owner of the vehicle in question. We have noticed hereinbefore that a document was produced before Claims Tribunal. Even according to the appellant, although it was only a Motor Input Advicecum-Receipt, it contained the cover note No.279106. We, therefore, have to suppose that a cover note had, in fact, been issued. If a cover note had been issued which in terms of clause [b] of Section 145 of the act would come within the purview of definition of certificate of insurance, it also would come within the purview of the definition of an insurance policy. If a cover note is issued, it remains valid till it is cancelled. Indisputably, the insurance policy was cancelled only after the accident took place. A finding of fact, therefore, has been arrived at that prior^to the deposit of the premium of insurance in cash by the owner of the vehicle, the cover note was not cancelled".

¶191

It is quite clear that, if a cover note had been issued in terms of clause [b] of Section 145 of the act, it can^betreated as certificate of insurance and it can be treated under the cover of definition of insurance policy. So, Ex.A7 remains valid, till it is

¶192

2012 ACJ 542

¶193

¶194

cancelled. The Insurance Company miserably failed to prove that it duly cancelled the insurance policy or intimated to the owner about its cancellation or dishonor of the cheque. So, the evidence of RW.l is of no use to the contention of the contesting respondent/insurance Company in both the claims.

¶195

There was no dispute that as on the date of accident, there was no proof with the respondent to show that the policy was cancelled. No piece of paper was filed to show that at least the Insurance Company sent a letter to the owner, intimating about the dishonor of the cheque or cancellation of the policy. Under the circumstances, the Tribunal rightly negatived the contention of the appellants. It is to be noted that as evident from the grounds of appeal, as well as the arguments canvassed, the only ground on which the appellant sought to repudiate its liability is that both the deceased were gratuitous passengers and there was no valid policy.

¶196

The aforesaid contentions in the grounds of appeal^which were adhered to at the time of hearing, deserves no merits. The appellant sought to challenge the award of the Tribunal only on the aforesaid grounds, but not on any other grounds.

¶197

Having regard to overall facts and circumstances, the Tribunal rightly negatived the contention of the appellant.^The

¶198

¶199

exercise made by the learned Tribunal to arrive at the compensation is not at all challenged in the grounds of appeals. 27. Having regard to the above, absolutely there are no merits in the grounds of appeals which are canvassed at the time of hearing.

¶200

In the result, both M.A.C.M.As. are dismissed confirming the common judgment, dated 30.10.2015, in M.V.O.P.Nos.868 and 869 of 2011 on the file of Motor Vehicle Accident Claims Tribunal-cum-I Additional District Judge, Nellore, Nellore District. No order as to costs. Consequently, miscellaneous applications pending, if any, shall stand closed.

¶201

Sd/- M PRABHAKAR RAO ASSISTANT REGISTRAR

¶202

//TRUE COPY//

¶203

SECTION OFFICER

¶204

To, 1 The Chairman, Motor Vehicles Accidents Claims Tribunal-cum-l^Addl. District Judge, Nellore, SPSR Nellore District (with^{recordsifany)}

¶205

One CC to Sri Kota Subba Rao, Advocate [OPUC]

¶206

One CC to Sri Sivaprasad Reddy Venati, Advocate^[OPUC]

¶207

The Section Officer, VR Section, High Court of Andhra^Pradeshat Amaravathi

¶208

5. Three CD Copies

¶209

Stu vna

¶210

■j HIGH COURT
f y-
li?A#. PATED:23/02/2024

¶211

COMMON JUDGMENT + DECREE

¶212

MACMA.No.1513 of 2016 & MACMA.No.1532 of 2016

¶213

m
Co
g 0 8 MAY MY
V' ■4“i

¶214

DISMISSING THE M.A.C.M.A’S

Hdfc Ergo General Insurance Co.Ltd., v. Doddaga Sakunthala

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Hdfc Ergo General Insurance Co.Ltd., v. Doddaga Sakunthala

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