Kerala High Court: A Full bench comprising of V. Chitambaresh, P.B. Suresh Kumar and Sathish Ninan, JJ. while answering a reference ruled that the burden to prove non-receipt of insurer’s letter of cancellation of insurance lies on the insured.
The liability of an insurer to indemnify third parties subsists unless the insurance coverage is cancelled by him (for reason such as dishonour of cheque given by insured towards premium) and intimation of cancellation has reached the insured and the registering authority.
The sole question referred to the Full Bench for determination was as to on whom does the burden lie to prove that the insurer has intimated about cancellation of insurance. Is it sufficient if it is proved that the insurer has sent intimation about cancellation of insurance coverage to the insured and the registering authority; or is it necessary to prove that the addressees have received the same?
The Court remarked that the fundamental difference between speed post and registered post was that while the former was address specific and time bound, the latter was addressee specific. Thus, the surest way to prove that intimation about cancellation of insurance had been sent by the insurer was to dispatch it by registered post with or without postal acknowledgment. Since Section 27 of the General Clauses Act, 1897 raises a presumption in favour of the sender for a properly addressed and prepaid post, therefore production of the receipt evidencing dispatch by registered post raises a presumption in favour of the insurer that the intimation has been sent to the addressee for secured delivery.
In view of the above, the reference was answered holding that the burden to rebut the presumption in favour of insured by conclusive evidence lay on the addressee. It was for the addressee/ insured to prove that he did not receive insured’s letter of cancellation and that the same was not a case of deliberate avoidance.[Prasanna B. v. Kabeer P.K.,2018 SCC OnLine Ker 4929, Order dated 31-10-2018]
