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2002 DIGILAW 745 (ORI)

New India Assurance Co. Ltd. v. Siba Parida

2002-11-20

L.MOHAPATRA, R.K.PATRA

body2002
JUDGMENT R. K. PATRA, J. — This Letter Patent Appeal filed by the Insurance Company is directed against the order dated 28.8.1998 in Misc. Appeal No. 589 of 1991 by which the learned Single Judge has allowed the claimant-respondents 1 to 3’s appeal for enhance¬ment of compensation. 2. The claimants-respondents 1 to 3 filed Misc. Case No. 436 of 1987 before the Second Motor Accident Claims Tribunal claiming compensation for the death of Kalindi Parida who died in a motor accident on 31.7.1987. The Tribunal by order dated 13.8.1991 granted compensation of Rs. 60,000/- only in their favour. Contending that the said compensation is inadequate, they preferred appeal before this Court in Misc. Appeal No. 589 of 1991. A learned Single Judge in the order under appeal has en¬hanced the compensation., 3. Counsel for the appellant has not challenged the quan¬tum of compensation as determined by the learned Single Judge. The sole point urged by the appellant is that the Insurance does not cover the date of accident and, therefore, no liability can be fixed on it. 4. The accident took place on 31.7.1987. The Tribunal has noted in the first sentence of paragraph-5 of its order that the accident took place on 31.7.1987 at about 12.30. p.m. The conten¬tion of appellant is that as per the photocopy of the cover note Ext. C, the period of insurance of the offending vehicle was from 1.30 a.m. of 31.7.1987 to 30.7.1988 and the accident having taken place prior to 10.30. a.m., the Insurance Policy does not cover the case and, therefore, it is not liable to pay any compensa¬tion. The Tribunal, as already indicated, has held that the acci¬dent took place on 31.7.1987 at about 12.30 p.m. In view of the aforesaid finding recorded by the Tribunal which was not chal¬lenged before the learned Single Judge nor before us, the plea of the appellant that the policy does not cover the period of acci¬dent is not acceptable, as according to its own case, the period of insurance is from 10.30 a.m. of 31.7.1987 to 30.7.1988. This being the finding of fact recorded by the Tribunal, the plea taken by the appellant before the learned Single Judge ought to have been rejected. 5. This being the finding of fact recorded by the Tribunal, the plea taken by the appellant before the learned Single Judge ought to have been rejected. 5. A three-Judge Bench of the Supreme Court in National Insurance Company Limited v. Jikubhai Nathuji Dabhi, 1997 ACJ 351 held that if there is a special contract mentioned in the insur¬ance policy stating that it would be operative from a particular time of a specified date then, the insurance policy would commence from that time of that specified date. In absence of any specific time mentioned in that behalf, the contract would be operative from the mid-night of the day by operation of the provisions of the General Clauses Act, 1897, as held by the Supreme Court in New India Assurance Co. Ltd. v. Ram Dayal, 1990 ACJ 545. Two other Three-Judge Benches of the Supreme Court in Oriental Insurance Co. Ltd. v. Sunita Rathi, 1998 ACJ 121 and Oriental Insurance Co. Ltd. v. Banamali Lenka, 1999 ACJ 535 and a Two-Judge Bench of the Supreme Court in National Insurance Co. Ltd. v. Chinto Devi, (2000) 7 SCC 50 have taken the same view as that of Jikubhai (supra). 6. In view of the finding of fact recorded by the Tribu¬nal, we need not examine as to whether the ratio of Jikubhai (supra) or Ram Dayal (supra) would be applicable to the case at hand. 7. For the reasons aforesaid, there is no merit in this appeal which is accordingly dismissed. L. MOHAPATRA, J. I agree. Appeal dismissed.