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2010 DIGILAW 606 (RAJ)

National Insurance Co. Ltd v. Laxman

2010-03-16

A.M.SAPRE

body2010
JUDGMENT 1. - This is a misc. appeal filed by insurer (Insurance Company) under Section 173 of Motor Vehicles Act (for short hereinafter called the Act") 188 against an award dated 20.7.1995 passed by MACT, Bikaner in Claim Case No. 45/1993. 2. By impugned award the Claims Tribunal allowed the claim petition of the claimants (R-1 to R-3) filed under Section 166 of the Act and awarded a total compensation of Rs. 98,000/- to the claimants with interest for the death of one "Om Prakash" who died in vehicular accident on 28.12.1992. 3. In this appeal the only question raised by the appellant (insurer) is that since the accident in question occurred at 10 A.M. on 28.12.1992 whereas policy in question was issued at 4 Y.M. on the said date/day (28.12.1992) and hence no liability could be fastened upon the insurance Company arising out of such accident which occurred prior to issuance of policy. In other words, the grievance of insurer is that at the time of accident the vehicle in question was not insured with the insurance Company and hence no liability on the strength of the policy could be fastened upon them. This issue was decided against the Insurance Company by the Tribunal and hence the Company is in appeal against this finding. 4. In order to decide this question, only those facts which are relevant for deciding this question need mention in brief. 5. On 28.12.1992, Om Prakash was travelling in one Bus bearing No. RRF-7741 for going to a place called "Dantor". It was around 10 A.M., the bus turned turtle and went in ditch. It is due to this mishap, Om Prakash then filed a claim petition under Section 166 of the Act out of which this appeal arises claiming compensation for his death. It was alleged that vehicle in question was drive by NA-1, owned by NA-1 (sic) and insured with NA-3 on the date of accident (28.12.1992) and hence all the three are liable to pay compensation to claimants on the strength of policy issued to cover the liability/risk of the insured (NA-2). 6. It was contested by non-applicants. So far as NA-1/2 were concerned, they averred in their joint written statement that accident was not caused due to their negligence i.e. NA-2 whereas according to them it was a case of sudden failure of brake due to which Bus went in ditch. 6. It was contested by non-applicants. So far as NA-1/2 were concerned, they averred in their joint written statement that accident was not caused due to their negligence i.e. NA-2 whereas according to them it was a case of sudden failure of brake due to which Bus went in ditch. In substance, their defence was that of sudden mechanical failure of brake of the bus due to which the accident occurred. it was also alleged that in any case since the vehicle in question was insured with the NA-3 and hence it is for NA-3 to suffer the liability and satisfy the claim of claimants if decreed. 7. So far as NA-3 was concerned, they averred in their statement that insurance coverage was issued at 4 P.M. on 28.12.1992 and hence no liability can he fastened upon them in respect of accident which occurred prior to 4 P.M. on 28.12.1992. It was alleged that since in this case, even according to claimant, the accident is said to have occurred at 10 A.M. on 28.12.1992 and hence no liability arises for making the Insurance Company liable on the strength of cover note issued at 4 Y.M. in favour of insured. 8. Parties adduced evidence. By impugned award, the Tribunal partly allowed the claim petition and passed award against all the three non-applicants. It was held that insurance Company is also liable to stiffer the award on the strength of cover note though issued at 4 P.M. but it would come in force w.e.f. 12 A.M. on 28.12.1992. It is this finding which is assailed by the Insurance Company (NA-3) in this appeal. 9. Having heard the learned counsel for the parties and on perusal of the record of the case, I am inclined to allow the appeal and while setting aside of the award as against the appellant (NA-3) uphold the same as against NA-1/2 only i.e. against owner and driver of offending vehicle. 10. I have perused the evidence both oral and documentary. The only relevant document in this case is the cover note. It is Ex.NA-2. It is issued by appellant on 28.12.1992. It specifically mentions time of its issuance at 4 P.M. Indeed no one has disputed its genuineness including all entries made therein which in clear terms mention time in the column of time (4 P.M.). 11. The only relevant document in this case is the cover note. It is Ex.NA-2. It is issued by appellant on 28.12.1992. It specifically mentions time of its issuance at 4 P.M. Indeed no one has disputed its genuineness including all entries made therein which in clear terms mention time in the column of time (4 P.M.). 11. I, therefore, do not find any difficulty in recording a categorical finding of fact of affirmants that appellant (Insurance Company) issued a cover note (Ex.NA-2) on 28.12.1992 in relation to vehicle in question in favour of NA-2 (insured) at 4 P.M. of 28.12.1992. 12. It is now a trite law that when the timings are mentioned in the cover note/policy by the Insurance Company then in such event, such policy would come in force from the timing mentioned in the policy and not prior to it. In other words, if no timings are mentioned then such policy would come in force from midnight of the date of its issuance. Since in this case the cover note specially mentioned the timings for its issuance and hence it would come in force only from 4 P.M. of 28.12.1992 and not earlier in point of time. 13. Now, coming to the issue as to what time, the accident occurred i.e. on 28.12.1992, 1 am clearly of the view that it occurred at 10 A.M. on 28.12.1992. Indeed this is the case of the claimants themselves in para 8 of the claim petition which clearly avers.that accident occurred at 10 A.M. In the light of the claimants own case, as averred in claim petition, no liability arising out of such accident which occurred at 10 A.M. on 28.12.1992 can be fastened on the insurance Company on the strength of cover note issued at 4 P.M. on 28.12.1992. In my view, it is a clear case where the NA-2 i.e. owner of the vehicle did not disclose to the company of the occurrence of accident and got the insurance coverage issued to avoid his liability. The suppression on his part was apparent because he got the insurance on the same day in evening i.e. after the occurrence of accident. 14. In my view, therefore, on admitted facts which are taken note of supra, no liability on the insurance Company could be fastened arising out of the accident in question. 15. The suppression on his part was apparent because he got the insurance on the same day in evening i.e. after the occurrence of accident. 14. In my view, therefore, on admitted facts which are taken note of supra, no liability on the insurance Company could be fastened arising out of the accident in question. 15. Accordingly and in view of foregoing discussion and disagreeing with the finding of the Tribunal on the aforesaid issue, I allow the appeal, set aside the award as against the appellant (NA-3) only. It is accordingly set aside in so far as it is pas by Tribunal against the appellant (NA-3). It would however remain as against other non-appellants.No cost.Appeal allowed. *******