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Gauhati High Court · body

2001 DIGILAW 87 (GAU)

National Insurance Company Ltd. v. Ashoka Das

2001-03-30

B.B.DEB

body2001
This appeal under section 173 of the Motor Vehicles Act, 1988 arises out of judgment award dated 29.8.1996 passed by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala in TS (MAC) No. 125 of 1992 by which an amount of Rs. 1,06,000 with 12% interest from the date of filing of the petition , (16.9.92) has been awarded, in favour of the claimant-respondent Smti Ashoka Das, under section 166 of the Motor Vehicle Act. 2. The case before the Tribunal, in short is as follows : On 17.7.1992 at about 5.30 AM while the deceased Ramesh Chandra Das and one Smti Rubi Sen were standing near the Bus Syndicate in the Western side of Agartala Bishalgarh Road, one vehicle (Jeep) bearing No. TRT-1596 dashed them down having plied with rash and negligent driving as a result Ramesh Chandra Das sustained grievous injury and died instantaneously at his age of 57 years. He was the sole earning member of the family consisting three members including unmarried daughter. Police case was registered vide West Agartala PS Case No.30 (7)/92 under section 2 7 9/3 3 8/3 04A IPC. The claimant wife, son and daughter filed this claim petition under section 166 of the Motor Vehicle Act, claiming Rs.5 lakhs as compensation contending, inter alia, that prior to death the deceased had an earning of Rs.2,000 per month from his grocery shop and he was the only bread earner of the family. The owner of the vehicle and the insurance company resisted the claim by filing written objection virtually admitting the accident but special plea was raised by the insurance company to the effect that the vehicle was not insured at the relevant time and, as such, the insurance company was not liable. Initially, the insurance company was not made party but subsequently by way of amendment, as soon as the claimant could collect the details of the insurance, made the insurance company as a party by way of amendment. 3. The learned Tribunal having recorded the evidence found the vehicle insured with the appellant insurance company and made the award as quoted above. 4. 3. The learned Tribunal having recorded the evidence found the vehicle insured with the appellant insurance company and made the award as quoted above. 4. The learned counsel for the appellant confined his argument to a sole legal ground to the effect that at the relevant time viz on 17.7.1992 at 5.3 0 AM (morning) the vehicle bearing No. TRT-1596 was never insured with the appellant insurance company and, as such, the insurance company was not liable to make payment of any compensation for such accident occurred at 5.30 AM on 17.7.1992. But, fortunately the insurance company admitted that the said vehicle TRT 1596 was insured on 17.7.1992 few hours after the occurrence of the accident. For better appreciation, the relevant portion of the written objection may conveniently be reproduced below which is extracted from the paragraph 9 of the written objection: "9. But it is admitted that vehicle No. TRT 1596 was insured on 17.7.92 during office hours suppressing the alleged fact of accident took place at 5.30 AM of the same day." 5. The learned Tribunal relying upon that afore quoted averment, made the award fixing in liability upon the insurance company. 6. The learned counsel for the appellant submits that the policy issued by the appellant on 17.7.1992 commenced from 10 AM of the day i.e. the commencing of working hours of the office and, as such, the policy cannot be held to cover any risk of accident happened at 5.30 AM (about of more than 4 hours prior to issuing of policy). On the other hand, the learned counsel for the respondents submits that notwithstanding the policy was issued at 10/11 AM, it would cover the period of one year commencing from the preceding mid night of 17.7.1992. Now, the only question to be answered is the time when the policy would commence for the purpose of fixing liability upon the insurer. The learned counsel for the appellant contends that the effect of policy would commence from the moment it is issued. On the other hand, the learned counsel for the respondents submits that it would commence from the preceding mid night. 7. The learned counsel for the appellant contends that the effect of policy would commence from the moment it is issued. On the other hand, the learned counsel for the respondents submits that it would commence from the preceding mid night. 7. It is settled proportion of law that 1st January of a year would commence from the preceding mid night at 0 hours of the night intervening 31st December and 1st January and the year would end in the mid night at 0 hours of night intervening 31st December and 1st January. Having applied this settled proposition, the date 17.7.1992 commenced in the preceding mid night at 0 hours intervening 16th and 17th July and the accident happened at 5.30 AM on 17.7.1992 and the policy was issued on 17th July itself. In this respect we can take it from three authoritative precedents of the Hon'ble Apex Court (1) New India Assurance Co Ltd vs. Ram Dayal & others, reported in (1990) 2 SCC 680 ; (2) National Insurance Co Ltd vs. (Smti) Jikubhai Nathuji Dabhi & others, reported in (1997) 1 SCC 66 ; (3) New India Insurance Co vs. Bhagwati Devi & others reported in (1998) 6 SCC 534 . 8. In New India Assurance Company (supra) case, the Hon'ble Apex Court held that insurance policy became operative from commencement of the date of insurance i.e. it would commence from the previous mid night of the date when the policy was obtained and, as such, in the present case since the policy was obtained on 17.7.1992 it became operative from the previous mid night covering the morning at 5.30 AM of 17th July itself. Subsequent two decisions one in Jikubhai case (supra) and another in Bhagwati Debi (supra) it remains clarified that the insurance policy would be operative from the time mentioned in the policy itself. The afore cited subsequent two decisions clarified the matter dictating that unless the commencement/operation of the policy is mentioned in the policy itself, the policy would be commenced from the previous mid night of the date of issuing of the policy. But, in case time of commencement of the policy is recorded in the policy itself it would be operative from that time only, and not from previous night. 9. But, in case time of commencement of the policy is recorded in the policy itself it would be operative from that time only, and not from previous night. 9. The learned counsel for the appellant, insurance company contends that having suppressed the fact of the accident already occurred at morning 5.30 AM on 17.7.1992, the owner got the vehicle insured on that date during working hour between 10 AM and 5 PM and as such the afore cited decision of the Hon'ble Apex Court would not be applicable in the present case. I am afraid of sharing with such contention firstly because the said plea remains not proved by the insurance company by adducing any sort of evidence at all, and secondly the insurance company did not repudiate the contract on detection of such alleged suppression of facts. 10. Under the aforesaid, I am of the considered opinion that the learned Tribunal rightly made the award putting entire liability upon the insurance company since the insurance company did not put forward any plea specifying the entry of time in the policy itself for its commencement while issued the policy on 17.7.1992. In the result, the appeal stands dismissed, but under the peculiar facts and circumstances, I decline to pass any, order as to costs.