Naresh Kumar and Another vs The Oriental Insurance Co. Ltd. and Others

N.K. Agarwal, J.

Heard on admission.

This is owners appeal against the award dated 31.03.2006, passed by the XIVth Additional Motor Accident Claims Tribunal, (FTC), Raipur (for short ''Tribunal) in claim case No. 110/05, whereby and whereunder an amount of Rs. 2,59,100/- has been awarded in favour of claimants alongwith interest @ 9 percent per annum, holding the appellants liable for its payment, exonerating the insurance company from its liability to pay any compensation.

The brief facts of the case are that, on 31.08.2005, Ganesh Ram Dhimar (since deceased), while going on bicycle, met with an accident with Matador bearing registration No. CG-04/ZD-2585 and succumbed to the injuries sustained in the said accident.

The claimants, i.e. unfortunate widow and minor son, by filing a claim petition u/s 163-A of the Motor Vehicles Act (for short ''MV Act''), claimed Rs. 4,99,000/- as compensation on account of death of deceased in the said accident.

The insurance company denied its liability on the ground that policy was issued covering risk of said vehicle commencing from 01.09.05 to 31.08.06 and vehicle was not insured on the date of accident.

The Tribunal, on a close scrutiny of evidence led by the parties and the material available on record, awarded the amount as aforesaid in favour of the claimants against the appellants and exonerated the insurance company from its liability to pay any compensation to the claimants holding that the vehicle was not insured on the date & time of accident.

Shri Prajapati, learned counsel appearing for the appellants would submit that as per oral evidence of appellants, it is clear that the insurance premium has been paid by the owner on 31.08.2005 at 9:30 am i.e. before the time when the accident took place, and therefore, the Tribunal has erred in exonerating the insurance company from its liability to pay any compensation.

I have heard the counsel appearing for the appellants and perused the order impugned and record of trial court.

The insurance company by examining its Branch Manager Ranjan Kumar Paul as its witness, proved proposal form as per which the policy was to be issued assuming risk for the period commencing from 01.09.05 to 31.08.06. As per premium details, the premium was received by the insurance company on 31.08.06 to 3:30 pm.

It is crystal clear that the said policy has been issued covering the risk from 00:00 hours of 01.09.05 to 31.08.06. The Tribunal, after considering the oral and documentary evidence led by the parties, rightly disbelieved the oral testimony of the appellant No. 2 i.e. the owner of the vehicle as despite (sic) in possession of the said policy mentioning the commencement of the period of policy from 01.09.05, he never raised any objection in this regard with the insurance company. On the other hand, the insurance company has already proved the fact by proving the proposal form and policy as well.

The Supreme Court in case of M/s. National Insurance Co. Ltd. Vs. Smt. Jijubhai Nathuji Dabhi and others, observed in paras 2 & 3 as under:

The Tribunal also had recorded, as a fact, that on 25.10.1983 at 4:00 p.m., the contract of renewal had come into force and it would be operative upto 24.10.1984. The Tribunal also recorded, as a fact, that the accident had occurred on 25.10.1983 at 11:14 a.m., that is, before the renewal of the contract. Under these circumstances, it would be clear that the accident had occurred when the renewal had not taken effect. This Court in New India Assurance Co. Ltd. v. Ram Dayal had held that in the absence of any specific time mentioned in that behalf, that contract would be operative from the mid-night of the day by operation by provisions of the General Clauses Act, 1897. But in view of the special contract mentioned in the insurance policy, namely, it would be operative from 4:00 p.m. on 25.10.1983 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.

Further, the Supreme Court in case of New India Assurance Co. Ltd Vs. Smt. Sita Bai and Ors, observed in paras 6 & 7 as under:

The correctness and applicability of judgment in Ram Dayal''s case came up for consideration before this Court subsequently in a number of cases. In New India. Assurance Co. Ltd. Vs, Bhagwati Devi and Ors. a three-Judge Bench of this Court relied upon the view taken in National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi (Smt.) and Ors., wherein it had been held that if there is a special contract, mentioning in the policy the time when it was bought; the insurance policy would be operative from that time and not from the previous midnight as was the case in Ram Dayal''s case, where no time from which the insurance policy was to become effective had been mentioned. It was held that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following; but in cases where there is a mention of the specific time for the purchase of the policy, then a special contract comes into being and tile policy becomes effective from the time mentioned in the cover note/the policy itself. The judgment in Jikubhai''s case has been subsequently followed in Oriental Insurance Co. Ltd, v. Sunita Rathi by a three-Judge Bench of this Court also. In the fact of situation of this case since the commencement of the policy at 2100 hours on 16.4.1987 was after the accident which had occurred at 1000 hours on 16.4.1987, the Tribunal as well as the High Court were wrong in burdening the appellant-Insurance Company, with any liability u/s 92-A of the Motor Vehicles Act by applying the law laid down in Ram Dayal''s case which, on facts, had no application to this case. This case is squarely covered by the judgment in Jikubhai''s case and the other judgments following it as noticed above. The impugned order against the appellant cannot thus be sustained. The same is hereby set aside. The appeal consequently succeeds and is allowed insofar as the appellant is concerned. No. costs.

By applying the above referred legal propositions of law of the facts and circumstances of the present case, it cannot be said that the insurance company has undertaken the risk from 9:30 am of 31.08.05. and the Tribunal has rightly exonerated the insurance company from its liability to pay any compensation, therefore the Tribunal has not committed any illegality warranting interference of this court.

Shri Prajapati failed to point out any illegality or perversity in the award passed by the Tribunal.

In the result, the appeal being devoid of substance, is liable to be and is hereby dismissed. No order asto costs.