Scribd Logo
Upload

Welcome to Scribd!

  • 12 views

    Memorandum For Respondents Counsel On Behalf of Respondent Ajay Bhatt Semester V Section B Roll No. 05

    Uploaded by

    Bittu Hidko
    memo

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd

    Memorandum For Respondents Counsel On Behalf of Respondent Ajay Bhatt Semester V Section B Roll No. 05

    Uploaded by

    Bittu Hidko
    12 views11 pages
    memo

    Original Title

    BHATT MEMO

    Copyright

    © © All Rights Reserved

    Available Formats

    DOCX, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    memo

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    12 views11 pages

    Memorandum For Respondents Counsel On Behalf of Respondent Ajay Bhatt Semester V Section B Roll No. 05

    Uploaded by

    Bittu Hidko
    memo

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 11

    IN THE HON’BLE

    HIGH COURT OF GUJARAT

    _________________________________

    National Insurance Co. Ltd.

    (Appellant)

    Vs.

    Ranjanben Batukrai Bhatt and Others

    (Respondent)

    ____________________________________________________

    MEMORANDUM FOR RESPONDENTS

    COUNSEL ON BEHALF OF RESPONDENT

    AJAY BHATT

    SEMESTER V

    SECTION B

    ROLL NO. 05
    Table of Contents

     List of Abbreviations ………………………………………………….……………..3


     Index of Authorities……………………………………………….…………………4
     Statement of Facts ……………………………………………………….…….…….5
     Issues Raised…………………………………………………………….…….……..6
     Summary Of Arguments……………………………………………….…………….7
     Written Submission………………………………………………………………......8
     Prayer For Relief ….………………………………………………………………....9
    LIST OF ABBREVIATIONS

    AIR………………………………………………………………..All India Report

    Edn……………………………………………………………… Edition

    i.e. …………………………………………………………………That is

    p. ……………………………………………………………………Page number

    s. ……………………………………………………………………Section

    SC……………………………………………………………………Supreme Court

    SCC………………………………………………………………….Supreme court cases

    SCR………………………………………………………………….Supreme Court Report

    Sec……………………………………………………………..……Section

    Vs…………………………………………………………………....verses

    Ext……………………………………………………………………Extension
    INDEX OF AUTHORITIES

    ACTS/STATUTES/RULES:

     Motor Vehicles Act, 1988 – Section 166


     Workmen Compensation Act- Section 6 & Section 3

    CASES REFERRED

    Deddappa & Ors. v. Branch Manager,


    Union of India Thru' D.R.M., C.R., Jhansi v. Maszood Ali

    Oriental Insurance Co. Ltd. v. Inderjit Kaur and Ors.

    National Insurance Co. Ltd. v. Seema Malhotra and Ors.

    BOOKS

    LABOUR LAW-S.N MISHRA

    DICTIONARIES
     Black’s Law Dictionary

    The Law Lexicon, Bakshi, P.M., Ashoka Law House, New Delhi
    STATEMENT OF JURISDICTION

    The appellant has approached the Hon’ble high court of Gujarat under Section 30(1) (a) of the

    Workmen Compensation Act, 1923.


    STATEMENT OF FACTS

    1. It is the case of the claimants that deceased was driver and on the date of accident he was
    driving the vehicle owned by original opponent No. 1. While driving the vehicle, deceased met
    with accident and as a result, deceased died.

    2. The insurance policy for the vehicle in question, was for the period between 01.04.1985 to
    31.03.1986 and amount of premium was paid by way of cheque by owner of the vehicle in
    favour of the appellant Insurance Company but the cheque which got dishonoured and the
    cheque was returned unpaid by the banker with reason insufficient funds in the vehicle owner’s
    bank account, on 17.04.1985 and as the amount is not paid towards premium, policy is cancelled
    by letter dated 24.04.1985

    3. Accident took place on 09.06.1985 and in the said accident, driver of the offending vehicle
    died. It is pertinent to note that when accident took place, policy was not in force.

    4. By this appeal, the appellant herein original opponent No. 2 has challenged the judgment and
    award dated 28.04.2005 passed by the learned Commissioner for Workmen Compensation,
    Labour Court, Anand in W.C. Application No. 9 of 1993. Applicants filed application for getting
    compensation on account of accident which took place on 09.06.1985.

    5. After considering oral and documentary evidence on record, learned Labour Court, Anand by
    judgment dated 28.04.2005 partly allowed the Workmen Compensation application and awarded
    compensation of Rs. 83,968/- in favour of the original applicants.

    Against the said award, original opponent No. 2 has preferred this appeal
    ISSUES RAISED

    1. Whether the insurance company is liable to pay compensation?


    SUMMARY OF ARGUMENTS

    1. 1.YES THE INSURANCE COMPANY WOULD BE LIABLE TO PAY THE


    COMPENSATION, AS THE LIABLITY CANNOT BE WAIVED IN CERTAIN
    CASES WHERE THE CONDITION IS FOR THE BENEFIT OF THE ISURER, SUCH
    CONDITION CAN BE WAIVED.
    WRITTEN SUBMISSION

    1. The insurance company can be held liable in this case to pay the compensation to the
    aggrieved party, and any such condition which is for the benefit of the insurer can be
    waived as held in the case of Abdul Azeez & Co. v. New India Assurance Co. Ltd. 1 And
    also in the case of ocean Accident & Guarantee Corporation Company v. Patkar2,.
    In the case of Abdul Azeez the then learned judge cited Lord Dacey, and the same is
    being produced in aid of the argument:
    “Their Lordships cannot treat the fact of the executed policy having been handed to the
    respondents as a waiver of the condition or attach any importance to the circumstances.
    What was handed to the respondents was the instrument with this clause in it, and that
    was notice to them, and made it part of the contract that there would be no liability until
    the premium was paid.”
    This clearly is an authority for the position that by the mere fact of the delivery of the
    policy the company cannot be held to have waived the condition that it should come into
    force only on payment of the premium. The policy had been issued and that demands
    were also made by the company for payment of premium. Thus mere incompletion of the
    payment of the premium cannot be held to be the closer of the contract between the
    insurer and the insured, the same has been laid down in the case of ocean as cited above
    (refer to footnote 2).

    In the case of abdul azeez the learned Judge refers to the cases reported in -- 'Armstrong
    v. Turquant',3  and 'General Accident Insurance Corporation v. Cronk',4   and finally
    comes to the conclusion on the facts that the condition had been waived and that the suit
    was maintainable. The law on the subject is stated in Halsbury's Laws of England,
    Hailsham Edition, Vol. 13, paragraphs 650 and 551 at page 449 thus:
    "As soon as the contract is signed, the assured becomes liable to pay the premium, but
    his failure to pay it does not in itself absolve the insurers from the liability which they in
    1
    AIR 1935 BOM 236.
    2
    AIR 1954 MAD 520.
    3
    (1857) 9 Ir. C. L. B. 33 
    4
    (1901) 17 T.L.R. 233
    turn have undertaken under the contract. In the event of a loss, therefore happening
    before payment, they must pay the amount due under the contract, unless the contract
    otherwise provides.
    In practice, prepayment of the premium is usually made a condition precedent to
    liability, in the case not only of the first premium, but also of the renewal premiums. The
    assured is then precluded from recovering for a loss which happens before the premium
    is paid. Any such condition, however, may be waived."

    Thus in view of the above citations and principles laid down in previous cases the same can be
    held analogous to this case. And, thus the insure company should be held liable to pay the
    compensation.

    PRAYER FOR RELIEF


    Wherefore in the lights of the facts stated, authorities cited, arguments advanced, the petitioner
    humbly requests the Hon’ble Court to adjudge and declare that:-

    1. The insurance company is liable to pay compenstion.


    2. The appeal should not be allowed and the verdict of the Hon’ble High Court should be
    upheld.

    And, pass any order or decree in the favor of the petitioner as the Court may deem fit in the lights
    of Justice, Equity & Good Conscience.

    All of which is most humbly prayed.

    COUNSEL ON BEHALF OF RESPONDENT 26th september, 2016

    AJAY BHATT

    You might also like