REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1329         OF 2009 (Arising out of S.L.P. (Crl.) No.15947 of 2006)

United India Insurance Co. Ltd. …Appellant

Vs.

M/s Payarelal Nirnajan Lal …Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge  in  this  appeal  is  to  the  order  passed  by  the  National

Consumer Disputes Redressal Commission, New Delhi, (in short ‘National

Commission’) refusing to accept the prayer made by the present appellant to

set aside the ex parte order dated 30.11.2005.

3. Background facts, as projected by the appellant, are as follows:

The  respondent  (hereinafter  referred  to  as  the  ‘insured’)  gave  a

cheque  for  Rs.1451/-  dated  8.10.86  to  one  Development  Officer  of  the

appellant-Company  for  obtaining  Marine  (Inland  Transit  Policy)  for

Rs.5,00,000/- for incoming goods from various States.  On 9.10.1986 an oil

tanker  of  the  respondent-insured  bearing  No.RND-9259  coming  from

District Mehsana, Gujarat, met with an accident near Pali, Rajasthan.  On

11.10.1986 the insured informed the appellant about the accident of its oil

tanker.  The cheque in question was received in the Divisional Office of the

appellant on 13.10.1986 without any cover note.  On 19.1.1987 respondent

submitted claim bill to the appellant claiming certain amount in respect of

the accident of its oil tanker.  On 23.3.1993 the claim was rejected by the

appellant informing the respondent as follows:

“1. Your cheque dated 8.10.96 Rs.1451/- against  the

premium of the policy of insurance proposed to be issued

reached our office on 13.10.86 without a cover note in

absence where of any risk arising out of an accident was

2

neither  covered  nor  could  that  be  said  to  have  been

covered as also for want of a concluded contract.

2. Besides  that  right  from 8.10.86  till  13.10.86  the

balance in your account in the concerned bank was only

a  sum  of  Rs.1259.21  only,  wholly  insufficient  for

clearance  of  your  above  cheque  without  which,  mere

issuance of the said cheque did not result into a contract

worth of being honoured.        

3. Your alleged accident took place at about 2 p.m.

on  9.10.86,  i.e.  much  prior  to  our  even  accepting  the

contract to cover the said risk for reasons given in para

No.1 & 2 of this letter and hence we are not liable for the

same.  

Any  correspondence  made  between  us  on  your  initiation  is  also

refuted  as  entirely  irrelevant  and  off  the  subject  and  truth  no  further

correspondence on this subject from you will be taken cognizance of by us

as the chapter for vacuum is closed hereby once for all.  

3

The respondent filed a complaint before the State Consumer Disputes

Redressal  Commission,  Rajasthan  (hereinafter  referred  to  as  the  ‘State

Commission’) claiming compensation of Rs.4,30,350/-. The complaint was

dismissed by the State Commission by order dated 23.9.1996 holding that

no  concluded contract  of  insurance  came into  existence  on  8.10.1993  as

there was no acceptance of the proposal by the insurer since no cover note

or any other customary note of contract had been issued.

An  appeal  was  filed  by  the  respondent  before  the  National

Commission which was numbered as First Appeal No.666/96.  The matter

was  decided  on  30.11.2005  ex  parte  partially  allowing  the  claim of  the

respondent  and  directing  the  appellant  to  pay Rs.1,41,794.45  along  with

interest  @  12%  p.a.  from  1.1.1987  till  date  of  payment  and  cost  of

Rs.10,000/- was awarded.

Appellant filed an application before the National Commission with

the prayer to set aside the ex parte order by explaining the reason as to why

there was no appearance on behalf of the appellant  when the matter was

called.  It was specifically pointed out that Mr. S.C. Sharda who was the

earlier counsel had returned all the briefs.  The notice was handed over to

4

Mr. Sharda who had not appeared.  As no information was given by Mr.

Sharda, there was no appearance on behalf of the present respondent before

the National Commission when the matter was taken up.  By the impugned

judgment the application was rejected.  It was observed that if there was any

change in counsel, the appellant should have been more vigilant.

4. Learned counsel for the appellant submitted that the reason why there

was no appearance was clearly indicated and there was no dispute as to the

factual assertions and, therefore, the National Commission should have set

aside the ex parte order and heard the appeal on merits.  Learned counsel for

the respondent supported the order.

5. In view of the undisputed factual position that earlier Mr. Sharda was

appearing and notice had been served on him, obviously Mr. Sharda was to

appear when the matter was taken up by National  Commission.  But the

briefs  had  been  returned  by  Mr.  Sharda  to  the  appellant-company.

Therefore, the appellant had no knowledge about the listing of the case.  It

is not in dispute that Mr. Sharda had not informed the appellant-company

about the date of hearing because he had returned the briefs.

5

6. In the peculiar circumstances, we set aside the impugned order of the

National Commission and restore First  Appeal No.666/96 for disposal on

merits afresh.  To avoid unnecessary delay, let the parties appear before the

National Commission without further notice on 16.3.2009 so that a date of

hearing can be fixed by the National Commission.  As the matter is pending

since long, we request the National Commission to explore the possibility of

early disposal of the appeal.  We make it clear that we have not expressed

any opinion on the merits of the case.

7. The appeal is allowed to the aforesaid extent.

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (ASOK KUMAR GANGULY)

New Delhi, February 27, 2009

6