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2005 DIGILAW 463 (UTT)

New India Assurance Co. Ltd. v. Sita Ram

2005-10-29

B.S.VERMA

body2005
JUDGMENT B.S. Verma, J. 1. This appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 (in short the Act) against the judgment and award, dated 18.6.1997, passed by Motor Accident Claims Tribunal/III Addl. District Judge, Nainital in short the Tribunal) in M.A.C. Petition No. 190 of 1992, Sita Ram and Ors. v. Amarnath and Anr. whereby the learned Tribunal awarded compensation of Rs. 1,32,000 along with interest @ 12% per annum against the appellant. Aggrieved, the Insurance Company has come up in appeal. 2. Relevant facts of the case are that Pappu aged 25 years and earning Rs. a 2,500 per month from sweet-meat shop and electric work, (son claimant No. 1 Sita Ram) lost his life in a motor vehicle accident, which occurred on 30.1.1992 at about 9.30 a.m. near Toll Barrier, Ramnagar Road, Kashipur, due to rash and negligent driving by the driver of Truck No. UP 02-6429. At the relevant time, the deceased was going with his father on foot. The report of the motor accident was lodged at u the police station and post-mortem of the dead body was also conducted. It has been alleged that the truck was owned by O.P. No. 1 and it was duly insured with O.P. No. 2 New India Assurance Company. The claimants have filed claim petition for compensation of Rs. 10,00,000. 3. The owner of the vehicle (O.P. No. 1) filed his written statement and contested the case. The allegations made in the claim petition were denied. It was c alleged that the truck was duly insured with O.P. No. 2, therefore, the compensation, if any, is liable to be paid by the insurer. 4. The New India Assurance Company also filed its written statements and contested the petition on the ground inter alia that the claimants are required to satisfy that the vehicle was being driven in accordance with policy conditions. By d way of amendment, it is pleaded that the vehicle was insured on 30.1.1992 at 2.10 p.m. while the motor accident occurred at 9.30 a.m. As such, at the time of accident, the vehicle was not insured with the Insurance Company. It may be noted here that the factum of accident was admitted by the Insurance Company for the first time in its amendment application 29-D moved on 24.3.1995 whereas the written statement was initially filed on 1.3.1994 by the Insurance Company. It may be noted here that the factum of accident was admitted by the Insurance Company for the first time in its amendment application 29-D moved on 24.3.1995 whereas the written statement was initially filed on 1.3.1994 by the Insurance Company. 5. On the pleadings of the parties, the learned Tribunal framed three Issues. Issue No. 1 related to rash and negligent driving of the truck resulting into motor accident. Issue No. 2 related to compensation and relief. Issue No. 3 related to the negligence on the part of the deceased. 6. The claimants have filed carbon copy of the F.I.R. as also certified copy of the Post Mortem Report, while the owner of the vehicle has filed photo copy of the Insurance Policy (14-C) as well as photo-stat copy of the driving licence, registration certificate and goods tax paid. The opposite party No. 2, insurer of the truck, has filed carbon copy of the cover-note of the Insurance Policy. In oral evidence, the claimants have examined P.W. 1 Sita Ram, the father of the deceased and an eye- q witness of the accident and one Madan Singh Verma as P.W. 2. The O.P. No. 1, owner of the truck, has examined himself as D.W.1 7. After recording the evidence and hearing the parties' Counsel the learned Tribunal took Issue Nos. 1 and 3 together for decision. It came to the conclusion that the motor accident resulting into fatal injuries to deceased Pappu occurred due to sole rash and negligent driving by the driver of the offending truck. On Issue No. 2, the learned Tribunal came to the conclusions that the claimants were entitled to compensation of Rs. 1,32,000 along with interest @ 12% per annum from the date of filing of claim petition to the date of payment against both the opposite parties a as mentioned in the impugned order, while the claim petition against the claimant Nos. 3 and 4 was dismissed. 8. In support of appeal, it has been contended that the learned Tribunal has committed manifest error in fastening the liability upon the Insurance Company because at the time of accident,' the vehicle was not duly insured and that the owner b of the vehicle had concealed material fact in this regard. It was also submitted that the learned Tribunal failed to consider the copy of cover note (42-C/2) filed by the appellant before the Tribunal. It was also submitted that the learned Tribunal failed to consider the copy of cover note (42-C/2) filed by the appellant before the Tribunal. It was pointed out that the vehicle was got insured on 30.1.1992 at 2.10 p.m. through the Insurance Cover Note whereas the accident occurred at about 9.30 a.m. on the same day. 9. I have heard learned Counsel for both the parties and have examined the entire material on record including the lower Court record. 10. The only point for determination in this appeal is whether Truck No. U.P. 02-6429, which was involved in the accident was duly insured with the appellant Insurance Company at the time of accident and whether the Insurance Cover Note was issued subsequently in favour of the insured as contended by the Insurance Company. It may be reiterated here that in its written statement, (27-Kha), the Insurance Company has no where admitted the factum of accident but subsequently by way of amendment application moved on 24.3.1995, plea was taken by the Insurance Company that the insurance of the vehicle was got done by the insured after the accident had taken place. The owner of the vehicle has filed on record photo-stat copy 15-C on record. The insurance company has not admitted the genuineness of this cover note. The owner of the vehicle Amar Nath has appeared in the witness box as D.W. 1. In his statement, he has proved photo-stat copy of Insurance Cover Note. In this document, the time of insurance has not been mentioned but the vehicle has been shown to have been insured from 30.1.992 to 29.1.1993 This witness has been cross-examined on behalf of the Insurance Company, but no suggestion has been put to him that the alleged paper 15-C is a forged one or that the same is not a genuine one, rather he has been cross-examined with regard to alleged carbon copy of Cover Note (42-C/2) filed by the appellant. It may be mentioned here that the Insurance Company has not come forward to prove the paper No. 42-C/2 by way of oral evidence. I have gone through this document. It bears an endorsement "Attested second copy of original cover note" It purports to have been signed by J.P. Khanna, A.O. In this document, there is overwriting in the column of Inspector Code and the correction has not been carried out in the carbon ink. I have gone through this document. It bears an endorsement "Attested second copy of original cover note" It purports to have been signed by J.P. Khanna, A.O. In this document, there is overwriting in the column of Inspector Code and the correction has not been carried out in the carbon ink. Similarly, agency Code No. 80072 has been struck off and has been replaced by 33064. There is no attestation regarding cuttings carried out in the second copy of alleged original cover note. No reasons have been assigned by the appellant-Insurance Company. In my view, it was incumbent upon the appellant to have explained the discrepancies apparent on the face of the paper No. 42-C/2 by examining its witness before the Tribunal. The learned Tribunal has rightly discarded the contention of the appellant that the Insurance Cover Note was issued after the accident had taken place. It is a thing of common knowledge that when a document is meant effective for one complete year to expire on the mid night of the date of expiry, i.e. mid night of 29.1.1993 in the present case, and when this date started from 30.1.1992, it will have to be presumed that it has come into effect after the mid night of 29.1.1992, i.e. from the commencement of the date 30.1.1992, especially when no particular time of commencement has been earmarked and the relevant column has been left blank. Moreover, such a matter has come up for consideration before different High Courts and the Hon'ble Apex Court, in which it has been held that where the time of commencement of Insurance Policy has not been mentioned by the Insurer, the policy will be treated to be effective, after the mid night of the previous date. I am supported in our view by the pronouncement of the Hon' Supreme Court in the case of New India Assurance Company Limited v. Ram Dayal , in which the insurer repudiated its liability by maintaining that the policy has been taken after the accident and, therefore, it had no liability to meet the award of compensation against the owner. I am supported in our view by the pronouncement of the Hon' Supreme Court in the case of New India Assurance Company Limited v. Ram Dayal , in which the insurer repudiated its liability by maintaining that the policy has been taken after the accident and, therefore, it had no liability to meet the award of compensation against the owner. The Tribunal accepted this stand, but in appeal, the Punjab and Haryana High Court took the view that the insurance policy obtained on the date of the accident became operative from the commencement of the date of insurance, i.e. from the previous mid night and since the accident took place on the date of the policy, the insurer became liable. This view of the Punjab and Haryana High Court has been upheld by the Apex Court. 11. Learned Counsel for the Insurance Company-appellant has submitted that the case of Ram Duyal (supra) was not applicable to the facts of the present case, rather the ratio of the case Oriental Insurance Co. Ltd. v. Sunita Rahti and Ors. I (1998) ACC 193 (SC) : 1998(1) TAC 697 (Supreme Court), will be applicable. I have perused the Apex Court judgment in Sunita Rathi case (supra). In the case before the Apex Court, the Cover Note was obtained by the insured on the date of accident, i.e. 10.12.1991 at 2.55 p.m. and the accident occurred at 2.20 p.m. The Apex Court considered the effect of the Cover Note whether insurer was liable under the policy of insurance issued subsequent to the accident even though it was issued some time later on the same day and answered the question in negative. In the case in hand, the appellant failed to establish by reliable evidence that the Cover Note, photo-stat copy of which has been filed as paper No. 15-C is not a genuine document. Moreover, the appellant has not proved the alleged carbon copy of Cover Note, filed before the Tribunal as paper No. 42-C/2, by examining its witness and has not explained the discrepancies as mentioned above. I have already found that in the present case, the Cover Note of insurance was issued on the date of accident, but therein there is no mention of time of issuance. Therefore, the ratio of Ram Dayal case (supra) is fully applicable. The facts of case-law "Oriental Insurance Co. I have already found that in the present case, the Cover Note of insurance was issued on the date of accident, but therein there is no mention of time of issuance. Therefore, the ratio of Ram Dayal case (supra) is fully applicable. The facts of case-law "Oriental Insurance Co. Ltd. v. Sunita Rathi and Ors." relied upon by the appellant are distinguishable. Thus, I am of the considered view that the learned Tribunal has committed no infirmity or illegality in holding that the vehicle in question was duly insured at the time of motor accident and the same was effective at the time of motor accident. The finding recorded by the Tribunal on this point a is liable to be upheld. 12. So far as award of interest @ 12% per annum is concerned, it was urged on behalf of the appellant-Insurance Company that the rate of interest is on higher side, which may be reduced. This submission has some force. Undisputedly, the bank rate of interest is on decline at present. In view of the Apex Court judgment in the case of United India Insurance Co. Ltd. etc. etc. v. Pattricia Jean Mahajan and Ors. etc. etc. II (2002) ACC 460 (SC) : 2002 (2) Apex Court Judgments 100 (S.C.), rate of simple interest can be suitably reduced from 12% p.a. to 9% per annum from the date of filing of claim petition till the date of payment. 13. No other point was urged or argued before me in this appeal. 14. In the result, the appeal has no force and is liable to be dismissed on merit. However, the claimants shall get interest @ 9% per annum instead of 12% per annum. 15. The appeal is hereby dismissed on merit. The impugned award dated 18.6.1997 stands modified to the extent that the claimant-respondents shall get interest @ 9% per annum instead of 12% per annum from the date of claim petition till payment. No order as to costs. 16. The amount is deposited with this Court, if any, be remitted to the Motor Accident Claims Tribunal concerned for being paid to the claimants.