Krishna Subbarao Naik and another vs Palani Swamy and others

G.C. Bharuka, J.—Heard Mr. D. O. Kotresh, learned counsel for the appellants, and Mr. S. V. Hegde Mulkhand, learned standing counsel for the respondent-New India Assurance Company Limited.

The fundamental facts are not in dispute. Pursuant to a motor vehicle accident, which had taken place on June 19, 1987, at 9.15 a.m., one Kum. Sridevi, aged about 21 years and still a student, suffered spot death. The owner of the vehicle being lorry No. MYL 5151 managed to obtain an insurance policy from the third respondent on that very day at 10.15 a.m., i.e., subsequent to the accident. In the said context, the only question which has fallen for our consideration is as to whether the insurance company can still be held to be liable for compensation of Rs. 33,000 as awarded by the Tribunal in the present case.

Learned counsel for the appellants has brought to our notice the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Ram Dayal and Others, , wherein the apex court has agreed with the view taken by the High Court holding that the insurance policy obtained on the date of accident becomes operative from the commencement of the day of obtaining insurance, i.e., from the previous night and since the accident had taken place on the date of policy the insurer was liable. In view of the above dictum of the Supreme Court it has submitted that the mentioning of time in the cover note and insurance policy is of no consequence for holding that the insurance policy issued at any point of time during the course of the day will become operative from the zero hour, i.e., midnight. On the other hand, learned counsel appearing for the third respondent-insurance company has placed reliance on the judgment of the Division Bench of this court in the case of National Insurance Co. Ltd. Vs. Indirabai, , wherein it has been held that the policy can be deemed to have commenced only from the time and date when it was actually obtained and no benefits can be granted to any one in respect of the accident which has taken place prior to the time specifically mentioned in the policy.

Now, we find that the Supreme Court has finally resolved the legal issue on hand in the case of M/s. National Insurance Co. Ltd. Vs. Smt. Jijubhai Nathuji Dabhi and others, . In para 3 whereof it has held thus :

"This court in New India Assurance Co. Ltd. Vs. Ram Dayal and Others, , has held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the midnight of the day by operation of provisions of the General Clauses Act. But, in view of the special contract mentioned in the insurance policy, namely, it would be operative from 4 p.m. on October 25, 1983, and the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant-company."

In view of the above judgment, this appeal is dismissed. No costs.