# United India Insurance Co. Ltd v. Smt. Neetu Soni & Ors

- **Citation:** (2021) 7 ILRA 334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-19
- **Case number:** FAFO No. 237 of 2014
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/united-india-insurance-co-ltd-v-smt-neetu-soni-ors-47093
- **Pages:** 14

## Headnote

Sandeep Kumar Agrawal, Vishal Tahlani

United India Insurance Company Ltd. Thru.
Divisional Manager Vs Smt. Neetu Soni & ors.

Insurance Claim - The Court finds that in
absence of any original receipt of cancellation
of insurance policy which ought to have been
kept by the Insurance Company at its end in
the usual course of business.The photocopy
of the dispatch register simply bearing that a
letter was sent on a particular date is
inadmissible in evidence. There is nothing on
record to show that the information stating
that the insurance policy has been cancelled
on 15.03.2011 due to dishonor of cheque on
14.03.2011, has been conveyed to the insured
M/s Deep Oil Tanker, the relevant Transport
Authorities and the traffic Authorities. (Para
41)

Contributory Negligence - Merely because
three persons were riding the motorcycle and
they were not wearing helmets in itself will not
give rise to any inference that this act
contributed towards the accident. (Para 54)

Appeals Rejected. (E-8)
7 All. United India Insurance Co. Ltd. Vs. Smt. Neetu Soni & Ors.
335
List of Cases cited:

## Text

_Characters 0–39,915 of 45,359. This is a partial read: ask again with offset=39915 for what follows._

334 INDIAN LAW REPORTS ALLAHABAD SERIES
should be careful. Thus, there is no
conundrum about the legal proposition that
in case a prima facie case is made out, the
F.I.R. or the proceedings in consequence
thereof cannot be quashed.

8. Should we quash the complaints
where
serious
allegations
of
money
laundering under the regulations of U.P.
Regulation of Money Lending Act, 1976?
We have expressed our mind to the learned
counsel that the petitioners may move for
anticipatory bail before the competent Court.

9. The First Information Report prima
facie has to be looked into for quashment for
invoking jurisdiction under Article 226 of the
Constitution of India.

10. It is submitted by counsel for the
petitioners that only with a view to arrest the
petitioners and show that the complainant
who has taken money may not have to repay
this complaint is lodged. The petitioners are
lending money whether they have the licence
to lend or not is not on record and question
requires to be investigated.

11. In that view of the matter, we do not
think that any case is made out for
interference by this Court. It cannot be said
that they have been falsely implicated in the
said first Information Report, they should
thanks the police officials who have for a
period of three months not cause they arrest
as the complaint is filed in the month of
October, 2020.

12. The petition being devoid of merits,
does not require our issuance of certiorari of
mandamus writ.

13. Accordingly, the writ petition is
dismissed.
----------
(2021)07ILR A334
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2021

BEFORE
THE HON'BLE JASPREET SINGH, J.

FAFO No. 237 of 2014
Along with
FAFO No. 238 of 2014
Along with
FAFO No. 244 of 2014

United India Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Neetu Soni & Ors. ...Respondents

Counsel for the Appellant:
Anil Kumar Srivastava

Counsel for the Respondents:
Sandeep Kumar Agrawal, Vishal Tahlani

United India Insurance Company Ltd. Thru.
Divisional Manager Vs Smt. Neetu Soni & ors.

Insurance Claim - The Court finds that in
absence of any original receipt of cancellation
of insurance policy which ought to have been
kept by the Insurance Company at its end in
the usual course of business.The photocopy
of the dispatch register simply bearing that a
letter was sent on a particular date is
inadmissible in evidence. There is nothing on
record to show that the information stating
that the insurance policy has been cancelled
on 15.03.2011 due to dishonor of cheque on
14.03.2011, has been conveyed to the insured
M/s Deep Oil Tanker, the relevant Transport
Authorities and the traffic Authorities. (Para
41)

Contributory Negligence - Merely because
three persons were riding the motorcycle and
they were not wearing helmets in itself will not
give rise to any inference that this act
contributed towards the accident. (Para 54)

Appeals Rejected. (E-8)
7 All. United India Insurance Co. Ltd. Vs. Smt. Neetu Soni & Ors.
335
List of Cases cited:

1. National Insurance Company Vs Seema
Malhotra & ors. 2001 (3) SCC 151

2.
National
Insurance
Company
Ltd.
Vs
Parwathenene & anr. 2009 (4) TAC 382

3. United India Company Vs Laxmanna & ors.
2012 (5) SCC 234

4. Mangla Ram Vs Oriental Insurance Company
Ltd. & ors. 2018 (5) SCC 656 (followed)

5. New India Insurance Co. Ltd. Vs Rula & ors.
2000 (3) SCC 195 (followed)

6. Oriental Insurance Co. Ltd. Vs Inderjit Kaur &
ors. 1998 (1) SCC 371 (followed)

7. National Insurance Co. Ltd. Vs Jitender
Kumar& anr. AIR 2009 Alld 70 (followed)

8. The New India Assurance Company Ltd. Vs
Smt.
Khatoon
&
ors.
2011(1)
TAC
24
(Allahabad) (DB) (followed)

9. Mohammad Siddique & anr. Vs National
Insurance Company Ltd. & ors. 2020 (3) SCC
572

10. National Insurance Company Ltd. Vs Swaran
Singh & ors. 2004 (3) SCC 297

(Delivered by Hon'ble Jaspreet Singh, J.)

1. This is a batch of three appeals filed
under Section 173 of the Motor Vehicles Act,
1988 against the award dated 24.12.2013
passed by the Motor Accident Claims
Tribunal/ADJ, Court No. 16, Lucknow.

2. An accident took place on
31.01.2012 at around 10:00 PM wherein Sri
Anuj Kumar Soni, Yadu Nath @ Guddu and
Sanjay Sharma, all three, were riding on a
motorcycle bearing No. U.P. 32-BQ-9201
and while moving towards Lucknow from
Atariya side, near Ram Avtar Dhaba,
Bhitauli Wahad, P.S. Madion, District
Lucknow, a truck bearing No. HR-38 D-1220
belonging to Sri Owais Khan and was said to
be driven rashly and negligently hit the
motorcycle from behind as a result the three
riders of the motorcycle suffered grievous
injuries and all three died on the spot.

3. The legal heirs of Anuj Kumar Soni
preferred claim petition No. 101 of 2012
wherein by means of the award dated
24.12.2013, a sum of Rs. 6,95,000/- was
awarded along with 7 % interest per annum
from the date of filing of the claim petition
till the date of its actual payment. This claim
petition No. 101 of 2012 has given rise to
F.A.F.O. No. 237 of 2014. In the aforesaid
F.A.F.O. No. 237 of 2014, it was pointed out
by the learned counsel for the private
respondents that Smt. Rameshwari Devi had
expired during the pendency of the appeal
while her legal heirs are already on record as
respondent nos. 1 and 2.

4. Considering the aforesaid, the Court
permitted the appellants to carry out the
necessary amendments in the array of parties
during the course of the day.

5. The legal heirs of Yadu Nath @
Guddu preferred claim petition No. 99 of
2012 wherein the MACT/ADJ Court No. 16,
Lucknow awarded a sum of Rs. 5,4,600/-
along with 7 % interest per annum from the
date of filing of the claim petition till the date
of its actual payment and this claim petition
has given rise to F.A.F.O. No. 238 of 2014.

6. The legal heirs of Sanjay Sharma
preferred a claim petition no. 100 of 2012
wherein
by
means
of
award
dated
24.12.2013 passed by the MACT/ADJ,
336 INDIAN LAW REPORTS ALLAHABAD SERIES
Court No. 16, Lucknow awarded a sum of
Rs. 4,74,000/- along with 7% interest per
annum payable from the date of filing of
the claim petition till the date of its actual
payment and this claim petition has given
rise to F.A.F.O. No. 244 of 2014.

7. That since the three claim petitions
relates to the same accident and three
separate and different persons lost their
lives, consequently, the legal heirs of the
said deceased had preferred the claim
petitions wherein the defendant i.e. the
owner of the offending vehicle namely
Owais Khan was impleaded as respondent
no. 4 in F.A.F.O. No. 237 of 2014 whereas
in the other two connected F.A.F.Os., he is
impleaded as respondent nos. 7 and 6
respectively. Since the appellant namely
United India Insurance Company Ltd. had
assailed the award dated 24.12.2013 passed
in the above mentioned three appeals on
similar grounds and common questions of
law and facts are involved, hence, the Court
proceeds to decide three appeals together
by means of this common judgment.

8. In order to appreciate the
controversy involved in the aforesaid three
appeals, briefly, the facts giving rise to the
appeals are being noticed first:-

9. On 31.01.2012 at around 10:00
PM, three persons namely Anuj Soni, Yadu
Nath @ Guddu and Sanjay Kumar Sharma
were riding on a motorcycle bearing No.
U.P. 32-BQ-9201. It is further stated that
while they were moving from Attaria
towards Lucknow and had reached Ram
Avtar Dhaba at Bhitauli Wahad, P.S.
Madiyaon, District Lucknow, the offending
truck bearing No. HR-38-D-1220 which
was being driven rashly and negligently hit
the said motorcycle from behind as a result,
three riders of the motorcycle sustained
grievous injuries and they expired on the
spot. It is also stated that the offending
vehicle belonged to Sri Owais Khan and
was duly insured with United India
Insurance Company Ltd.

10. The owner of the truck Owais
Khan filed his written statement and had
submitted that the offending truck in
question was initially in the name of M/s
Deep Oil Tanker and the said truck was
insured
with
United
India
Insurance
Company Ltd. The said Insurance Cover
was purchased by M/s Deep Oil Tanker and
the premium thereof was paid through
cheque. The policy was valid for the period
04.03.2011 till 03.03.2012. It is also stated
that Owais Khan purchased the aforesaid
truck from M/s Deep Oil Tanker on
14.12.2011 along with the Insurance Cover.
It is also stated that the driver of the
aforesaid truck had valid and subsisting
license and the truck also possessed other
valid documents, hence, if at all any
liability accrued, the same was liable to be
indemnified by the Insurance Company.

11. The plea raised by Sri Owais
Khan was that the three riders of the
motorcycle were also negligent, inasmuch
as, it is not permitted for three persons to
ride on the motorcycle, coupled with the
fact that all three of them were not wearing
helmets. It was also stated that the
offending truck did not hit the motorcycle
from behind rather the motorcycle was
being driven rashly and negligently and
while overtaking the truck, it hit the middle
part of the truck which caused the accident,
ultimately, this being a case of contributory
negligence, hence, the owner sought to
avoid its liability.

12. The Insurance Company initially
preferred its written statement raising
7 All. United India Insurance Co. Ltd. Vs. Smt. Neetu Soni & Ors.
337
general defences in order to avoid its
liability rather it amended its written
statement wherein it pleaded that the
Insurance Company was not liable to
indemnify the award as the truck in
question was not insured with the Company
in the first place.

13. Elaborating the defence, the
Insurance Company took a specific plea that
the truck in question belonged to M/s Deep
Oil Tanker. They received a check for the
payment of premium, however, the said
cheque was dishonoured on 14.03.2011. The
Insurance Company cancelled the policy on
15.03.2011 and informed the insurer i.e. M/s
Deep Oil Tanker of the aforesaid. Despite the
information having been conveyed, the
insured i.e. M/s Deep Oil Tanker did not
make good the payment of premium,
consequently, the truck was never insured for
the aforesaid reason and as the incident
occurred on 31.01.2012, thus, on the said
date, the truck was not insured.

14. It further took a plea that Sri Owais
Khan purchased the truck on 14.12.2011 and
the said information was also not conveyed to
the Insurance Company nor the Insurance
Cover was transferred along with the transfer
of vehicle, thus, for all the aforesaid reasons,
it was a clear case where the truck was uninsured and no liability could accrued with
Insurance Company.

15. The Motor Accident Claims
Tribunal after considering the respective
pleadings of the parties framed seven issues.

16. Considering the evidence both
oral and documentary brought on record,
the Tribunal concluded that the accident
was an outcome of rash and negligent
driving of the offending truck bearing
No HR-38-D-1220. It also negatived the
plea of contributory negligence, inasmuch
as, the Tribunal took note of the eyewitness account who was the owner of Ram
Avtar Dhaba who categorically deposed
that the offending truck hit the motorcycle
from behind and there was no negligence
on the part of the motorcycle.

17. The Tribunal further concluded
that merely because three persons were
riding the motorcycle this in itself cannot
be factored to conclude that the motorcycle
riders contributed to the accident, inasmuch
as, the manner in which the accident was
caused, there was no negligence of the
riders despite that they had violated the
traffic rules. Since the said violation had
nothing to do with the accident as it was
caused by the truck hitting from behind.

18. The Tribunal also noticed that
though the Insurance Company had taken
the plea that the Truck was un-insured,
however, the Insurance Company failed to
establish that after the dishonour of cheque,
it communicated the information to the
erstwhile owner namely Deep Oil Tanker
nor the said information was communicated
to the appropriate Transport Authorities
and other Traffic Authorities, hence, in
absence of such evidence, the Tribunal
concluded that the truck was not insured,
nevertheless, it directed the Insurance
Company to pay since the compensation to
the third parties who cannot be deprived
but allowed the Insurance Company to
recover the amount from the owner.

19. With the aforesaid findings, the
Tribunal assessed the compensation in
respect of three deceased persons and in the
338 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Anuj Kumar Soni (deceased), the
legal heirs were awarded a sum of Rs.
6,95,000/- alongwith 7% interest per
annum. In respect of Yadu Nath @ Guddu
(deceased) his legal heirs were awarded a
sum of Rs. 5,04,600/- along with 7 %
interest and in respect of Sri Sanjay Sharma
(deceased) his legal heirs were awarded a
sum of Rs. 4,74 along with 7% interest per
annum.

20. The aforesaid three claim petitions
though decided separately but their award
is of the same date i.e. 24.12.2013, have
been assailed by the Insurance Company in
the three appeals.

21. It has been urged by the learned
counsel for the appellant that once the truck
was not insured and the appellant had led
cogent evidence to indicate that upon
receiving the information from the Bank
that the cheque for the payment of premium
had been dishonoured, an information was
sent to the M/s Deep Oil Tanker who did
not revert back to make good the payment
of premium, consequently, the policy was
cancelled on 05.03.2011, hence, on the date
of the accident i.e. 31.01.2012, the
offending truck bearing No. HR-38-D-1220
was not insured. In such a situation where
the truck in itself was not insured and the
truck was sold by M/s Deep Oil Tanker to
Sri Owais Khan on 14.12.2011 who also
did not inform the Insurance Company nor
got
it
insured,
hence,
in
such
a
circumstance, the Insurance Company
cannot be made to pay the compensation
and the Tribunal has erred in directing the
Insurance Company to pay and then
recover from the owner such direction is
erroneous.

22. In support of his submissions, the
learned counsel for the appellant has relied
upon the decision of the Apex Court in the
case of National Insurance Company Vs.
Seema Malhotra and Others reported in
2001 (3) SCC 151; National Insurance
Company Ltd. Vs. Parwathenene and
Another reported in 2009 (4) TAC 382
(SC) and United India Company Vs.
Laxmanna and Others reported in 2012
(5) SCC 234.

23. The other submission of the
learned counsel for the appellant is that the
Tribunal has erred in ignoring the plea
raised by the Insurance Company regarding
contributory negligence. It has been urged
that it was a categorical submission that
three persons were riding the motorcycle
which was being driven rashly and
negligently and while overtaking the truck,
it hit the middle part which was the cause
of the accident. It cannot be said that the
truck alone was responsible rather the three
persons on the motorcycle were also
responsible as they were violating the
traffic rules by three persons riding a
motorcycle while only two persons are
permitted and all three were riding on the
motorcycle without wearing helmets. This
rash and negligent act also contributed to
the accident, hence, the finding of the
Tribunal on the aforesaid count is vitiated
as appropriate evidence has not been
considered.

24. The learned counsel for the
claimant-respondents
has
refuted
the
aforesaid submissions and has urged that
though the plea regarding the truck being
un-insured on the date of the accident was
raised by the Insurance Company but it did
not prove the same in accordance with law.

25. It is urged that no evidence was
brought
on
record
to
indicate
that
information was conveyed regarding the
7 All. United India Insurance Co. Ltd. Vs. Smt. Neetu Soni & Ors.
339
dishonour of the cheque to M/s Deep Oil
Tanker. It is also urged that there is nothing
on record to indicate that the information
regarding cancellation of the policy was
conveyed to the insured i.e. M/s Deep Oil
Tanker nor there was any evidence to
indicate that the same was conveyed to the
relevant Transport Authorities and the
Traffic Authorities.

26. It is also urged that, had, the
aforesaid information been conveyed to the
appropriate authorities as alleged by the
Insurance Company, then at the relevant time
when Sri Owais Khan purchased the truck
and presented the papers for transfer before
the relevant transport authorities, the same
would have been flagged and Sri Owais Khan
would have been required to get the truck
insured before the transfer could take place
which has not been done and for the said
reason the truck was transferred from M/s
Deep Oil Tanker to Sri Owais Khan, hence,
in such circumstances where the Insurance
Company has not complied with its
obligations as provided in law it cannot avoid
its liability for payment to the parties
(claimants in the instant case).

27. It is further urged that the Tribunal
has considered the evidence in detail both on
the issue of the truck being un-insured as well
as contributory negligence and has recorded
its categorical findings which are not liable to
be disturbed in appeal as there is no legal
infirmity, hence, the appeal being devoid of
merits is liable to be dismissed.

28. The learned counsel for the
claimant-respondent has relied upon the
decision of the Apex Court in the case of (i)
Mangla Ram Vs. Oriental Insurance
Company Ltd. and Others reported in 2018
(5) SCC 656; (ii) New India Insurance
Company Ltd. Vs. Rula and Others reported
in 2000 (3) SCC 195; (iii) Oriental
Insurance Co. Ltd. Vs. Inderjit Kaur and
Others reported in 1998 (1) SCC 371 and in
the case of (v) National Insurance Company
Ltd. Vs. Jitender Kumar and Another
reported in AIR 2009 Alld 70 and The New
India Assurance Company Ltd. Vs. Smt.
Khatoon and Others reported in 2011(1)
TAC 24 (Allahabad) (DB).

29. Heard Sri Anil Kumar Srivastava,
learned counsel for the appellant and Sri
Sandeep Agarwal, learned counsel appearing
for the claimant-respondents in all the three
appeals.

30. It will be relevant to notice that the
owner of the offending vehicle Sri Owais
Khan was issued notices including through
Dasti summons yet none has appeared on his
behalf to contest the aforesaid appeals.

31. In light of the submissions of the
learned counsel for the parties, the two points
for determination before this Court is; (i)
Whether the Insurance Company can avoid
its liability to the third parties i.e. the
claimants for the truck being un-insured on
the date of the accident i.e. 31.01.2012 ? (ii)
Whether three persons riding on a motorcycle
in violation of the traffic rules without helmet
per-se
would
amount
to
contributory
negligence or the manner in which the
accident has occurred is to be ascertained and
whether in the said occurrence it has to be
determined that the rider of the motorcycle
had committed an act which contributed to
the accident ?.

32. From the perusal of the record, it
would reveal that the Insurance Company
340 INDIAN LAW REPORTS ALLAHABAD SERIES
had filed its written statement wherein it
amended its written statement and raised an
additional plea that the cheque for payment
of premium was issued by M/s Deep Oil
Tanker vide Cheque No. 011986 dated
04.03.2011 for a sum of Rs. 16,855/- drawn
on Deutsch Bank (Asia) which was
dishonoured on 14.03.2011. The Company
had informed M/s Deep Oil Tanker, its
agent, the R.T.O. Faridabad and the
Regional Office at New Delhi.

33. The Insurance Company also took
the plea that the insurance policy was
cancelled and since the Deep Oil Tanker
did not come forward to pay the aforesaid
amount, thus, the cancelled policy rendered
the contract of insurance void, hence, for
the said reason, no liability could be
fastened on the company.

34. In support of the aforesaid plea,
the Insurance Company examined Sri
Pankaj Prakash who was posted as the
Deputy Manager at the Regional Office at
Lucknow and he was authorized to depose
on behalf of the Company.

35. From the perusal of the statement
given by Sri Pankaj Prakash, he narrated
that the Company had received the cheque
for the premium from M/s Deep Oil
Tanker, however, the said cheque was
dishonoured with the endorsement that the
account was closed. He stated that the said
cheque which was issued by M/s Deep Oil
Tanker though actually it was drawn by an
individual namely Sandeep Kumar. He also
stated on oath that on the basis of the said
cheque the insurance cover was issued for
the vehicle in question valid for the period
04.03.2011 till 03.03.2012. It was also
deposed that the policy was cancelled on
15.03.2011 and the information in this
regard was conveyed to M/s Deep Oil
Tanker through a letter in writing through
Blaze Flash Courier Ltd. It was also
deposed that the entries regarding dispatch
of the said letter through courier was also
recorded in the dispatch register maintained
by the company. A certificate was received
from the Courier Company indicating that
it had delivered the said article at the
address i.e. of the insured M/s Deep Oil
Tanker.

36. On the strength of the aforesaid
deposition and the documents placed on
record by the Insurance Company vide
document list bearing Paper No. Ga-32,
Ga-35 and Ga-49, the Insurance Company
contested its plea.

37. Per contra, the learned counsel for
the claimant-respondents has drawn the
attention of the Court to the alleged
deposition of Sri Pankaj Prakash. It has
been urged that upon cross-examining Sri
Pankaj Prakash, he clearly deposed that the
documents regarding cancellation of the
policy which was filed by the document list
dated 02.07.2013(paper no. Ga-32) were all
photocopies.

38. The learned counsel for the
claimants-respondents has further drawn
the attention of the Court to a letter dated
12.03.2013 bearing Paper No. Ga-32/3
which is a letter issued by M/s Manoj
Enterprises who gave a certificate that the
letters of M/s United India Insurance
Company Ltd. are sent by M/s Blaze Flash
Courier
Ltd.
of
which
M/s
Manoj
Enterprises is the franchisee. It further
stated that the said letters sent by M/s
United India Insurance Company Ltd. to
M/s Deep Oil Tanker on 23.03.2011 which
is also reflected at serial no. 6 of the
dispatch register, its details be furnished.
The
certificate
states
that
the
said
7 All. United India Insurance Co. Ltd. Vs. Smt. Neetu Soni & Ors.
341
documents, are neither preserved by M/s
Manoj Enterprises nor the parent company
i.e. M/s Blaze Flash Courier Ltd, sent more
than a year ago, for the aforesaid reasons, it
was unable to provide any record, yet in the
said letter, it indicated that the letter dated
23.03.2011 which included a letter sent to
M/s Deep Oil Tanker were sent in the
month of March, 2011 through Manoj
Enterprises who are the franchisee of M/s
Blaze Flash Courier Ltd.

39. This letter is dated 12.03.2013 and on
the strength of it, it has been urged by the learned
counsel that the photocopies of the dispatch
register in the first place is not admissible in
evidence, moreover, there is no receipt on record
to establish that the said letter was couriered
through M/s Blaze Flash Courier Ltd. in the first
place.

40. It is also urged that the said certificate
issued by the franchisee is wholly immaterial,
inasmuch as, it has clearly stated that it does not
have record prior to one year nor the Company
Blaze Flash Courier Ltd. keeps such record prior
to one year, yet, in the same breath it has certified
that letters were issued which also included a
letter to M/s Deep Oil Tanker.

41. Considering the rival submissions and
the material on record, this Court finds that in
absence of any original receipt which ought to
have been kept by the United India Insurance
Company Ltd. at its end in its usual course of
business to indicate that a letter was sent to M/s
Deep Oil Tanker. Coupled with the fact that the
Insurance Company has merely brought on
record a photocopy of the dispatch register dated
23.03.2011 wherein there is only a reference that
on the said date a letter was also sent to M/s
Deep Oil Tanker, however, the said document is
a photocopy and inadmissible in evidence, yet, if
the same is perused, it would indicate that at
best it only shows that the information was sent
to M/s Deep Oil Tanker. There is nothing on
record nor there is any statement either in the
examination-in-chief to state that the information
was also conveyed to the relevant transport
authorities or the traffic department. There is also
no explanation to the effect that when the
aforesaid
cheque
was
dishonoured
on
14.03.2011 and the policy was cancelled on
15.03.2011 then why the aforesaid information
was sent to the alleged insured M/s Deep Oil
Tanker on 23.03.2011 nor why the original was
not produced when the said documents were
denied by the claimants.

42. In this context if the crossexamination of the witness Pankaj Prakash
is noticed, he has stated that he had sent the
information through M/s Blaze Flash
Courier Ltd. and the reason why it was not
sent through post office was that the post
office was at a distance. In his crossexamination, the witness also stated that the
courier was preferred since the documents
are got personally received yet no document
has been brought on record to indicate that
the alleged documents sent and addressed to
M/s Deep Oil Tanker was received, as in the
normal course, the original courier receipt as
well as the original proof of delivery ought
to be in the record and custody of the
Insurance Company especially when they
knew that the cheque in question had been
dishonoured. The cross-examination further
indicates that the witness could not
satisfactorily explain the chain of events
regarding the dishonour of cheque, the
cancellation of policy, intimation sent to M/s
Deep Oil Tanker as well as the fact that no
information was sent to the relevant
Transport
Authorities
or
the
Traffic
Department.
342 INDIAN LAW REPORTS ALLAHABAD SERIES

43. In light of the aforesaid statement
and the documents on record, this Court
clearly finds that the conclusion arrived at
by the Tribunal is based on the evidence on
record and does not suffer from any
infirmity which may persuade this Court to
interfere. There is no explanation why the
original documents were not filed nor there
is any attempt to explain and to get the said
documents treated as secondary evidence.
The conclusion drawn by the Tribunal,
coupled with the narrative as well as the
tenor of the witness noticed in his crossexamination
clearly
points
to
the
discrepancies
and
the
fact
that
the
Insurance Company could not successfully
prove that the upon the cheque being
dishonoured, its intimation was promptly
conveyed to the insured M/s Deep Oil
Tanker, the relevant Transport Authorities
and the Traffic Authorities.

44. At this stage, it will be relevant to
notice the decisions of the Apex Court in
the case of Mangla Ram (Supra) wherein in
paragraph 35 and 36 of the said report, the
Apex Court has held as under:-

"......35. The next question is about
the
liability
of
insurer
to
pay
the
compensation amount. The Tribunal has
absolved the Insurance Company on the
finding that no premium was received by the
Insurance Company nor was any insurance
policy ever issued by the Insurance Company
in
relation
to
the
offending
vehicle.
Respondents 2 and 3 had relied on a cover
note which according to Respondent 1
Insurance
Company
was
fraudulently
obtained from the then Development Officer,
who was later on sacked by Respondent 1
Insurance Company. The possibility of
misuse of some cover notes lying with him
could not be ruled out.

36. Respondents 2 and 3 have
relied on the decision of this Court in Rula
[New India Assurance Co. Ltd. v. Rula,
(2000) 3 SCC 195 : 2000 SCC (Cri) 601] .
That decision will be of no avail to
Respondents 2 & 3. In that case, the Court
found that the insurance policy was already
issued after accepting the cheque; whereas
in
the
present
case,
Respondent
1
Insurance Company has been able to show
that no payment was received by the
Company towards the insurance premium
nor had any insurance policy been issued
in respect of the offending vehicle (jeep).
However, the claim of Respondents 2 & 3
to the extent that they possessed a cover
note issued by the then Development
Officer of Oriental Insurance Company
(Respondent 1) will have to be accepted
coupled with the fact that there is no
positive evidence to indicate that the said
cover note is ante-dated. Pertinently, the
cover note has been issued by the then
Development Officer at a point of time
when he was still working with Respondent
1 Insurance Company. It must follow that
the then Development Officer was acting
on behalf of the Insurance Company, even
though
stricto
sensu
Respondent
1
Insurance Company may not be liable to
pay any compensation as no insurance
policy has been issued in respect of the
offending vehicle, much less a valid
insurance policy. But for the cover note
issued by the Development Officer of
Respondent 1 Insurance Company at a
point of time when he was still working
with Respondent 1, to do substantial
justice, we may invoke the principle of "pay
and recover", as has been enunciated by
this Court in National Insurance Co. Ltd. v.
Swaran Singh [National Insurance Co. Ltd.
v. Swaran Singh, (2004) 3 SCC 297, para
110 : 2004 SCC (Cri) 733]."
7 All. United India Insurance Co. Ltd. Vs. Smt. Neetu Soni & Ors.
343

45. Similarly in the case of Rula
(Supra) in paragraphs 9, 10 and 11, the Apex
Court has also noticed its earlier decision of
Indrajit Kaur (Supra) and has held as under:-

"......9. Section 149 casts a duty
on the insurer to satisfy judgments
and awards against persons insured in
respect of third-party risks. Subsection (1) of Section 149 is quoted
below:

"149. Duty of insurers to
satisfy judgments and awards against
persons insured in respect of thirdparty risks.--(1) If, after a certificate
of insurance has been issued under
sub-section (3) of Section 147 in
favour of the person by whom a policy
has been effected, judgment or award
in respect of any such liability as is
required to be covered by a policy
under clause (b) of sub-section (1) of
Section 147 (being a liability covered
by the terms of the policy) or under
the provisions of Section 163-A is
obtained against any person insured
by the policy then, notwithstanding
that the insurer may be entitled to
avoid or cancel or may have avoided
or cancelled the policy, the insurer
shall, subject to the provisions of this
section, pay to the person entitled to
the benefit of the decree any sum not
exceeding the sum assured payable
thereunder,
as
if
he
were
the
judgment-debtor, in respect of the
liability, together with any amount
payable in respect of costs and any
sum payable in respect of interest on
that sum by virtue of any enactment
relating to interest on judgments."

10. The contract of insurance
in respect of motor vehicles has,
therefore, to be construed in the light
of the above provisions. Section
146(1) contains a prohibition on the
use of the motor vehicles without an
insurance policy having been taken in
accordance with Chapter XI of the
Motor Vehicles Act. The manifest
object of this provision is to ensure
that the third party, who suffers
injuries due to the use of the motor
vehicle, may be able to get damages
from the owner of the vehicle and
recoverability of the damages may not
depend on the financial condition or
solvency of the driver of the vehicle
who had caused the injuries.

11. Thus, any contract of
insurance under Chapter XI of the
Motor
Vehicles
Act,
1988
contemplates a third party who is not
a signatory or a party to the contract
of insurance but is, nevertheless,
protected by such contract. As pointed
out by this Court in New Asiatic
Insurance
Co.
Ltd.
v.
Pessumal
Dhanamal Aswani [AIR 1964 SC
1736] the rights of the third party to
get indemnified can be exercised only
against the insurer of the vehicle. It is
thus clear that the third party is not
concerned and does not come into the
picture at all in the matter of payment
of premium. Whether the premium has
been paid or not is not the concern of
the third party who is concerned with
the fact that there was a policy issued
in respect of the vehicle involved in
the accident and it is on the basis of
this policy that the claim can be
maintained by the third party against
the insurer."

46. The decision of the two
Division Bench judgments of this Court
in the case of Jitendra Kumar (Supra) and
344 INDIAN LAW REPORTS ALLAHABAD SERIES
Smt. Khatoon (supra) are worthwhile to be
noticed.

47. In the case of Jitendra Kumar
(supra) a division Bench of this Court while
considering
the
provisions
of
Motor
Vehicles Act as well as the Insurance Act
and also the earlier decision of the Apex
Court of Indrajit Kaur (Supra), Seema
Malhotra (supra), Rula (supra) as well as
the National Insurance Company Ltd. Vs.
Swaran Singh and Others reported in 2004
(3) SCC 297 and after discussing both
statutory provisions as well as the effect of
the decisions of the Apex Court in
paragraphs 10 to 18 of the said report,
however, the relevant paragraph containing
the dictum is being reproduced hereafter:-

"17. Before we deal with various
contentions raised by the parties it is
desirable to look into the legislative history
of the provisions for their interpretation.
The
relevant
provisions
of
the
Act
indisputably are beneficent to the claimant.
They are in the nature of a social welfare
legislation.

"18. Chapter XI of the Motor
Vehicles Act, 1988, inter alia, provides for
compulsory
insurance
of
vehicles
in
relation to the matters specified therefor.
The provision for compulsory insurance
indisputably has been made, inter alia, with
a view to protect the right of a third party."

48. Similarly, in the case of Khatoon
(Supra), a Division Bench of this Court while
noticing the statutory provisions of M.V. Act
as well as the Insurance Act and the earlier
decisions of the Apex Court including the
decision of Jitendra Kumar (Supra) in
paragraphs 35 to 40 and in paragraph 40 of the
said report it has succinctly held as under:-

".....40. This decision, thus, lays
down that in case the Insurance Company
has cancelled the insurance coverage in
respect of a vehicle, it must inform all
concerned
inclusive
of
the
Regional
Transport Authority and the appropriate
police
authority
dealing
with
traffic
simultaneously with the information of
cancellation of the insurance coverage to
the owner of the vehicle/insured. If the
Insurance Company has informed only the
owner of the vehicle regarding cancellation
of insurance coverage, but has not
informed the Regional Transport Authority
and appropriate police authority regarding
such cancellation, then the Insurance
Company will not be able to avoid the
liability to pay compensation to the third
parties specially in the form of stop-gap
arrangement and recover from the owner
i.e. insured."

49. While deciding the case of Smt.
Khatoon (Supra), a Division Bench of this
Court also noticed that there were certain
conflicting decisions and the matter has
been referred to a Larger Bench of the
Apex Court, however, since the reference
has yet not been answered, accordingly, the
decision has been taken as per the
prevailing law.

50. This Court also finds that in the
instant case, the Insurance Company has
not been able to discharge its burden
regarding the plea that the information
regarding
dishonour
of
cheque
was
conveyed to the various Transport and
Traffic Authorities by way of cogent
evidence, hence, it is not entitled to the
benefit of the decisions rendered by the
Apex Court in the case of Seema Malhotra
(supra) and Parwathenene (Supra).
7 All. United India Insurance Co. Ltd. Vs. Smt. Neetu Soni & Ors.
345

51. This Court finds that the
aforesaid dictum as noticed above is
binding on this Court, coupled with the
fact that the Insurance Company has
already been granted the right of recovery
and the claimant-third parties may not
suffer especially where the persons have
lost their lives in an accident and the
compensation granted under the Motor
Vehicles Act is a part of social beneficial
scheme, hence, considering the aforesaid
aspect of the matter, this Court is in
agreement with the findings recorded by
the Tribunal.

52. Thus, for the aforesaid reasons,
the first contention of the appellants fail.

53. The other issue regarding the
contributory negligence, if tested on the
plea as well as the evidence led before
the Tribunal, it would reveal that a feeble
plea regarding contributory negligence
was raised by the Insurance Company,
however, no evidence in this regard was
led before the Tribunal. Moreover, the
owner of the offending truck namely
Owais
Khan,
though,
filed
his
examination-in-chief
and
was
crossexamined. He had deposed that the Truck
bearing No. HR-38 D-1220 on the said
date was being driven by Sri Irshad Khan
S/o Moin Khan but he did not enter into
the witness box. In absence of the driver,
the plea of contributory negligence as
raised could not be successfully proved
when there was clear evidence by an eyewitness
who
deposed
in
shape
of
claimant-witness no. 2 namely Ram Avtar
who narrated the incident that the
offending truck hit the motorcycle from
behind and there was no fault of the
motorcyclist and stood firm by his
statement which could not be shaken
in his cross-examination.

54. Thus, merely because three
persons were riding the motorcycle and
they were not wearing helmets in itself will
not give rise to any inference that this act
contributed towards the accident while
there is clear evidence that the offending
vehicle had hit the motorcycle from behind.

55. In order to successfully contest
the plea of contributory negligence, it must
be shown that the person injured or
deceased must have committed an act of
negligence and such act contributed to the
accident directly in the chain of events
resulting in the cause of the accident.

56. In the present case though the
three persons were riding on a motorcycle
and were without helmets they may have
violated the traffic rules yet from the
material available on record, it has been
clearly established that the offending truck
hit the motorcycle from behind. Thus, the
three persons on the motorcycle in the
aforesaid situation cannot be said to have
contributed to the occurrence of the
accident, hence, the plea raised by the
learned counsel for the appellant fails.

57. The Court is fortified in its view
in light of the decision of the Apex Court in
the case of Mohammad Siddique and
Another Vs. National Insurance Company
Ltd. and Others reported in 2020 (3) SCC
572. The relevant paragraphs nos. 12 and
13 of the said report reads as under:-

"......12. But the above reason, in
our view, is flawed. The fact that the
deceased was riding on a motorcycle along
346 INDIAN LAW REPORTS ALLAHABAD SERIES
with the driver and another, may not, by
itself, without anything more, make him
guilty of contributory negligence. At the
most, it would make him guilty of being a
party to the violation of the law. Section
128 of the Motor Vehicles Act, 1988,
imposes a restriction on the driver of a
two-wheeled motorcycle, not to carry more
than one person on the motorcycle. Section
194-C, inserted by Amendment Act 32 of
2019, prescribes a penalty for violation of
safety measures for motorcycle drivers and
pillion riders.