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2006 DIGILAW 79 (MP)

RANJEET SINGH v. BHAGWAN SINGH

2006-01-12

A.K.PATNAIK, S.S.JHA

body2006
A. K. PATNAIK, C. J. ( 1 ) THESE are all the appeals filed against the common award dated 21. 1. 1999 of the Motor Accidents claims Tribunal, Vidisha in Claim Case nos. 130, 131, 132, 150 and 157 of 1998 by the owner of the vehicle which met with the accident. ( 2 ) THE facts briefly are that appellant no. 1 is the owner of Tata 407 minibus bearing registration No. MP 04-F 1923. Nandlal, Ramesh, Bhagwan Singh, Raja- ram and Khemchand amongst others were travelling in the said vehicle on 29. 4. 1997 when the vehicle overturned on the road and in the said accident, Nandlal, Ramesh, bhagwan Singh, Rajaram and Khemchand suffered injuries and they filed Claim Case nos. 130, 131, 132, 150 and 157 of 1998. In the said claim cases, the appellants took a stand that the aforesaid vehicle was insured with Oriental Insurance Co. Ltd. on the date of accident. Oriental Insurance Co. Ltd. , on the other hand, took a plea that the vehicle was insured up to the midnight of 28. 4. 1997 and thereafter a fresh insurance policy was issued in respect of the vehicle and such fresh insurance policy was to commence from 2. 30 p. m. on 29. 4. 1997, whereas the accident took place at 1 p. m. on 29. 4. 1997 and, therefore, it was not liable for compensation under the fresh policy of insurance issued on 29. 4. 1997. After considering the documentary evidence produced and oral evidence adduced by the parties, the Tribunal awarded different sums as compensation in the aforesaid claim cases by the impugned award dated 21. 1. 1999 holding that Oriental Insurance co. Ltd. was not liable for the said compensation and instead the appellant, who was the owner of the vehicle was liable for the said compensation. ( 3 ) MR. K. N. Gupta, the senior counsel, assisted by Mr. Pravin Newaskar, advocate for the appellants, submitted that it will be clear from the oral evidence of naws 4 and 5 that the representative of the appellant-owner went to the office of oriental Insurance Co. Ltd. on 29. 4. 1997 at about 11 a. m. and paid the insurance premium for the policy and that in fact, the policy of insurance which was issued on 29. 4. Ltd. on 29. 4. 1997 at about 11 a. m. and paid the insurance premium for the policy and that in fact, the policy of insurance which was issued on 29. 4. 1997 did not contain any time from which the policy of insurance was to commence on 29. 4. 1997 but the officers of the insurance company appeared to have put the time 2. 30 p. m. ' on the copy of the insurance policy retained by them. Mr. Gupta submitted, relying on the judgment of the Apex Court in New India Assurance co. Ltd. v. Ram Dayal, 1990 ACJ 545 (SC), that the policy of insurance that was issued in respect of the vehicle on 29. 4. 97 would commence from the midnight of 28. 4. 1997. Alternatively, he submitted that the policy of insurance issued on 29. 4. 1997 would at least be effective from 11 a. m. on 29. 4. 1997 when the insurance premium was paid and since the accident took place at 1 p. m. on 29. 4. 1997, it was the insurance company which was liable to indemnify the appellant for the compensation amounts payable to the claimants. ( 4 ) MR. Shriniwas Gajendra Gadkar, the learned counsel appearing for Oriental insurance Co. Ltd. , on the other hand, submitted that the insurance policy and the certificate of insurance had been produced and marked as exhibits before the Tribunal. He submitted that Tata 407 minibus of the appellant was insured by Oriental Insurance co. Ltd. from 10 a. m. on 29. 4. 1996 to midnight of 28. 4. 1997, as would be clear from exh. D3 and, therefore, the policy of insurance that was issued for the earlier period expired on the midnight of 28. 4. 1997. He further submitted that the fresh policy of insurance issued in respect of the aforesaid vehicle specifically stipulated that policy commenced from 2. 30 p. m. on 29,4. 1997 and would be valid up to the midnight of 28. 4. 1998. He argued that since a specific time of 2. 30 p. m. was mentioned, the policy would commence from 2. 30 p. m. on 29. 4. 1997, whereas the accident took place at 1 p. m. on 29. 4. 1997 and insurance company was not liable to pay compensation under the said fresh policy of insurance marked as Exh. Dl. He argued that since a specific time of 2. 30 p. m. was mentioned, the policy would commence from 2. 30 p. m. on 29. 4. 1997, whereas the accident took place at 1 p. m. on 29. 4. 1997 and insurance company was not liable to pay compensation under the said fresh policy of insurance marked as Exh. Dl. In support of the aforesaid submission, he relied on the decisions of the Apex Court in National Insurance co. Ltd. v. Jikubhai Nathuji Dabhi, 1997 acj 351 (SC) and Oriental Insurance Co. Ltd. v. Sunita Rathi, 1998 ACJ 121 (SC ). ( 5 ) WE have perused the decisions of the apex Court cited by learned counsel for the parties and we find that in New India assurance Co. Ltd. v. Ram Dayal, 1990 acj 545 (SC), cited by Mr. Gupta, learned senior counsel for appellants, no specific time was mentioned in the insurance policy with effect from which the insurance policy was to commence or to expire and on such facts, the Apex Court took a view that the contract of insurance would be operative from the midnight of the day previous to the day on which fresh insurance policy was issued. But in National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi, 1997 ACJ 351 (SC) and Oriental Insurance Co. Ltd. v. Sunita Rathi, 1998 ACJ 121 (SC), cited by Mr. Gadkar, learned counsel for Oriental Insurance Co. Ltd. , the Supreme Court held that where the contract of insurance mentions any specific time from which the contract of insurance was to commence, the contract of insurance would be effective from such time and not from the midnight of the day previous to the day the insurance policy was issued. ( 6 ) APPLYING the aforesaid law laid down by the Supreme Court to the facts of the present case, we find that under the previous policy, Exh. D3, the insurance policy commenced from 10 a. m. on 29. 4. 1996 and expired at the midnight of 28. 4. 1997. In the new insurance policy, which was issued on 29. 4. 1997, specific time from which insurance policy was to be effective has been mentioned and that is 2. 30 p. m. Though oral evidence was sought to be led through naws 4 and 5 that premium was paid on 29. 4. 4. 1997. In the new insurance policy, which was issued on 29. 4. 1997, specific time from which insurance policy was to be effective has been mentioned and that is 2. 30 p. m. Though oral evidence was sought to be led through naws 4 and 5 that premium was paid on 29. 4. 1997 at 11 a. m. and policy was to be really effective from 11 a. m. of 29. 4. 1997, we are unable to accept this plea raised on behalf of the appellants. Once the terms of any contract are reduced to writing, as in the present case, oral evidence given on behalf of any parly to vary the terms of the contract as reduced to writing would not normally be believed by the court. That apart, it is clear from the evidence of DW 2, Branch Manager of Oriental Insurance co. Ltd. that the policy was issued in the afternoon and was to be effective from 2. 30 p. m. on 29. 4. 1997. A specific timing having been mentioned in the policy of insurance, the contract of insurance was to be operative from 2. 30 p. m. on 29. 4. 1997 and not from the midnight of 28. 4. 1997 or from 11 a. m. on 29. 4. 1997, as contended by the appellants. We are, thus, of the view that the Tribunal was right in coming to the conclusion that Oriental Insurance Co. Ltd. was not liable for the compensation towards the claimants and the appellant owner himself was liable for the compensation being the owner of the vehicle in which the claimants suffered the accident. ( 7 ) MR. Gupta, learned counsel for the appellants next submitted that the compensation awarded in different claim cases to the claimants by the Tribunal is on the higher side. He submitted that Ramesh and rajaram (claimants in Claim Case Nos. 131 and 150 of 1998) have been awarded only Rs. 10,000 each and the appellants have no grievance with regard to the said compensation awarded by the Tribunal, but the Tribunal has awarded Rs. 35,000 in favour of Nandlal (claimant in Claim Case no. 130 of 1998), Rs. 37,000 in favour of bhagwan Singh (claimant in Claim Case no. 132 of 1998) and Rs. 37,000 in favour of Khemchand (claimant in Claim Case no. 35,000 in favour of Nandlal (claimant in Claim Case no. 130 of 1998), Rs. 37,000 in favour of bhagwan Singh (claimant in Claim Case no. 132 of 1998) and Rs. 37,000 in favour of Khemchand (claimant in Claim Case no. 157 of 1998) and these awards of compensation in favour of Nandlal, Bhagwan singh and Khemchand are on the higher side and there is no evidence to support the quantum of compensation awarded in each of these cases. ( 8 ) MR. Roman, learned senior counsel for the aforesaid claimants-respondents on the other hand, submitted that the compensation amounts are supported by evidence and are fair and just, inasmuch as Nandlal suffered a fracture in his right leg, Bhagwan Singh suffered a fracture of femur in his left leg and Khemchand also suffered fracture on his elbow. He submitted that they were all labourers and on account of such fractures on legs and elbow, they could not work for quite some period and thus they had loss of income for several months. He further submitted that besides income, they had to spend money on their treatment of such fractures. We have considered the aforesaid submissions of Mr. Gupta, learned counsel for the appellants and Mr. Roman, the learned counsel for the claimants and considering the fact that each one of these claimants have suffered fractures for which they must have spent substantial sum for their treatment and considering the fact that each one of the claimants who are labourers/agricultural labourers and could not have gone for work due to such fractures for several months and must have suffered loss of earnings for such months, we are of the view that the compensations awarded by the Tribunal in their favour cannot be held to be unjust. ( 9 ) MR. Gupta next submitted that the claims Tribunal has awarded interest of 12 per cent per annum on the compensation amount with effect from the dates of the applications of the claimants and the rate of interest awarded by the Tribunal is on the higher side. He submitted that recent decisions of the Supreme Court indicate that interest at the rate of 6 per cent and 9 per cent per annum should be awarded in motor accident claim cases. Mr. Roman submitted that the rate of interest awarded by the Claims Tribunal is just and fair. He submitted that recent decisions of the Supreme Court indicate that interest at the rate of 6 per cent and 9 per cent per annum should be awarded in motor accident claim cases. Mr. Roman submitted that the rate of interest awarded by the Claims Tribunal is just and fair. Considering all aspects of the matter, we are of the view that the rate of interest of 9 per cent per annum from the dates of applications would be just in the facts and circumstances of the cases. The impugned award is modified accordingly. ( 10 ) TWO cross-objections have been filed in M. A. Nos. 87 and 88 of 1999. We find that while the notice of memorandum of appeal in M. A. No. 87 of 1999 was served on the respondents on 11. 1. 2000, the cross-objections have been filed on 13. 3. 2000 without any application for the condonation of delay. We accordingly do not accept the cross-objections, the same being time-barred. Similarly, we find that in M. A. No. 88 of 1999, while the notice of memorandum of appeal was served on 31. 1. 2000 on the respondents, they have filed cross-objections on 13. 3. 2000 without any application for condonation of delay. Hence, the cross-objections in this case also cannot be accepted. ( 11 ) THE appeals are allowed in part. Appeals partly allowed. .