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2006 DIGILAW 590 (KAR)

B. N. JEEVAN PRAKASH v. SHABEER AHAMAD SHARIFF

2006-07-15

CHIDANANDA ULLAL, V.JAGANNATHAN

body2006
JUDGMENT The appellant who had sustained fracture of the left forearm in an accident that took place on 1-12-1998 at 9.00 a.m. was awarded a sum of Rs.50,000/- as compensation and the liability was put on the shoulders of the driver and the owner. It is this order, which is questioned in this appeal. 2. We have heard the learned Counsel for the appellant and Sri O. Mahesh, learned Counsel for respondent 3. 3. Insofar as the question of liability is concerned, it is submitted by the learned Counsel for the appellant that the accident took place on 1-12-1998 at 9.00 a.m. and on the very same day, the owner had paid the premium as per Ex. P. 3, but however, the policy was issued, to be commencing from 2-12-1998, as per Ex. R. 1, and the Tribunal taking note of the time mentioned in the policy Ex. R. 1, did not fasten the liability on the Insurance Company, but on the other hand, directed the 2nd respondent-owner of the vehicle to satisfy the award amount and as such this finding of the Tribunal is erroneous. Further, the learned Counsel has placed reliance upon the decisions in Kantilal Nagarbhai Khristi v Kantibhai Punjabhai Thakor and Another1 and Oriental Insurance Company Limited, Cochin v Sivan and Others2, to contend that the policy would take effect from the midnight of the previous day and such policy will cover the time and date of the accident in the instant case on hand. Therefore, he submits that the liability be fastened on the Insurance Company. 4. On the other hand, the learned Counsel Sri O. Mahesh, appearing on behalf of the Insurance Company submitted that Ex. R. 1-policy makes it clear that it was to commence from "0" Clock on 2-12-1998 and therefore as on the date of the accident i.e., on 1-12-1998, the policy was not in force and as such the Tribunal has rightly absolved the Insurance Company of its liability to satisfy the award amount. 5. Having taken note of the decisions cited by the learned Counsel for the appellant, we are of the considered opinion that in view of the policy Ex. R. 1 clearly indicating the time of commencement of the policy namely from "0" Clock on 2-12-1998, the question of policy coming into force on the midnight of the previous day will not arise. R. 1 clearly indicating the time of commencement of the policy namely from "0" Clock on 2-12-1998, the question of policy coming into force on the midnight of the previous day will not arise. In this regard, we place reliance upon the decision of the Hon'ble Supreme Court in New India Assurance Company v Bhagwati Devi and Others3, wherein it is observed thus: "The facts giving rise to the appeal are minimal. The appellant Insurance Company sold a policy at about 4 p.m. on 17-2-1989. Undeniably, it had been bought at a time when an accident pertaining to the vehicle insured had already taken place at about 9 a.m. the same day. The fatal accident pertaining thereby gave rise to a claim for damages before the Motor Accident Claims Tribunal. The same was allowed on the strength of the decision of this Court aforementioned, correctness of which has been challenged. The said decision proceeded on the legal fiction that when a policy is taken on a particular date, its effectiveness would start from the commencement of that date which is from the previous midnight. The accident-taking place at any time during the day would be covered by the policy. Later a three-member Bench of this Court in National Insurance Company Limited v Smt. Jijubhai Nathuji Dabhi, AIR 1997 SC 2147 : (1997)1 SCC 66 : 1997 ACJ 351 (SC), has taken the view that when there is a special contract mentioning in the policy the time when it was bought, it would be operative from that time and not fictionally from the previous midnight. In the said case, the policy had been bought at about 4 p.m. on the day of the accident and, thus, was not allowed to be operative from midnight; the accident having occurred around 11 a.m. on that date. The principle deduced is thus clear that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following. However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this Court. There is, thus, nothing further for us to deliberate upon". 6. However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this Court. There is, thus, nothing further for us to deliberate upon". 6. Further, in a recent decision in 2005 ACJ 1103 (Mad.), the Division Bench of the High Court of Madras has also taken a similar view and it has referred to the observation of the Apex Court in the case of New India Assurance Company Limited v Smt. Sita Bail, wherein the Supreme Court has observed thus: "(6) The correctness and applicability of the judgment in New India Assurance Company Limited v Ram Dayal, (1990)2 SCC 680 : 1990 ACJ 545 (SC), came up for consideration before this Court subsequently in a number of case. In New India Assurance Company Limited v Bhagwati Devi, (1998)6 SCC 534 , a three-Judges Bench of this Court relied upon the view taken in National Insurance Company Limiied v Jijubhai Nathuji Dabhi., 1997 ACJ 351 (SC), 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, 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 the policy becomes effective from the time mentioned in the cover note/the policy itself. The judgment in Jijubhai's case, has been subsequently followed in Oriental Insurance Company Limited v Sunita Rathi, AIR 1998 SC 257 : (1998)1 SCC 365 : 1998 ACJ 121 CSC), by a three-Judges Bench of this Court also". 7. In the light of the foregoing decisions, in the case on hand also as the Insurance Policy Ex. The judgment in Jijubhai's case, has been subsequently followed in Oriental Insurance Company Limited v Sunita Rathi, AIR 1998 SC 257 : (1998)1 SCC 365 : 1998 ACJ 121 CSC), by a three-Judges Bench of this Court also". 7. In the light of the foregoing decisions, in the case on hand also as the Insurance Policy Ex. R. 1 clearly mentions the time of commencement of the policy, the question of policy in question coming into force on the midnight of the previous day i.e., on 1-12-1998 as contended by the appellant's Counsel does not arise. We therefore, find no error in the finding of the Tribunal absolving the Insurance Company of the liability of satisfy the award and fastening the liability on the insurance Company. 8. Coming to the quantum of compensation, the Tribunal has awarded Rs. 15,000/- on various heads put together. In view of the medical evidence stating that the appellant has sustained the fracture of left hand forearm and rod is inserted and there is some obstruction in the movement of the wrist, .it is clear that the appellant has some disability in the left arm. However, there is no loss of future income, as he happens to be a Government servant. Having regard to the percentage of disability opined by the Doctor, we of the view that for fracture of bone, the sum of Rs. 25,000/- can be awarded to the appellant. The rest of the amounts awarded by the Tribunal are however sustained. Thus, the quantum of compensation gets enhanced by the above sum. 9. Accordingly,· this appeal is allowed in part by modifying the judgment and award to the above extent. 10. The owner of the vehicle is liable to satisfy the compensation as awarded in this judgment.