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2011 DIGILAW 387 (MP)

Rajesh v. Nazlu

2011-03-25

A.K.SHARMA

body2011
ORDER 1. This is an appeal filed by the appellant/owner and driver of the vehicle under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred as "the Act") against the award dated 29.9.2004 passed in Claim Case No. 62/2003 by the Member, 21 st Motor Accident Claims Tribunal, Indore by which Rs. 17,000/- as compensation has been awarded to the respondent/claimant. 2. Brief facts of the case are that on 16.5.2001 at around 1.30 p.m. claimant/ respondent Nazlu was going on A.B. Road, Dewas Naka, Indore after selling herbal medicine appellant/non-appellant Rajesh dashed his Tempo bearing registration No. MP 09-3653 by rashly and negligently driving due to which right hand of the claimant was fractured and as a result of which, permanent disability has occurred for which he claimed Rs. 1,25,000/- as compensation. 3. Appellant/respondent No.1 Rajesh denied the fact of accident and further pleaded that the Tempo was insured with respondent No.2 Oriental Insurance Company. Therefore, liability to pay the compensation is that of Insurance Company. The Insurance Company/respondent No.2 has also denied the liability to pay compensation, stating that there is no insurance at the time of the accident and his vehicle was 'insured from 22.5.2001 to 21.5.2002 and the accident has occurred on 16.5.2001 Further the Driver has not having a valid licence. It is also alleged that the tempo driver has not been made a policy. 4. Learned Tribunal has awarded compensation of Rs. 17,000/- to be paid by the appellant owner of the vehicle to the claimant on the ground that insurance of the tempo was effective from 22.5.2001 to 21.5.2002. Therefore, the Insurance Company is not liable to pay compensation. Being aggrieved by the award, the present appeal has been filed on the ground that the learned Tribunal had erred in exonerating the Insurance Comapny because the cover note has been is used on 15.5.2001 after payment of permium amount. There fore, Insurance Company was liable to pay the compensation and the amount of compensation is also excessive. 5. So far as the amount of compensation is concerned, looking to the gravity of injury sustained by the claimant. the amount is not excessive. Only point involved in the appeal is whether the learned Tribunal has committed any error in exonerating the Insurance Company from the payment of compensation. 6. Learned counsel for the appellant has submitted that after issuing the cover note Ex. the amount is not excessive. Only point involved in the appeal is whether the learned Tribunal has committed any error in exonerating the Insurance Company from the payment of compensation. 6. Learned counsel for the appellant has submitted that after issuing the cover note Ex. D/1 on 15.5.2001 the Insurance Company was liable to pay compensation as premium amount has been received by it on that day. But the learned Counsel for the Insurance Company has submitted that the appellant him self has proposed the insurance of the vehicle from 22.5.2001 on the ground that the vehicle was also insured with the Insurance Company till 21.5.2001 Therefore, the Insurance Company is not liable for paying the compensation and the learned Tribunal has also admitted this contention of exonerating the Insurance Company. 7. Learned counsel for the appellant and learned counsel for the respondent No. I have submitted that after issuing the cover note liability of the Insurance Company starts even the vehicle is insured from a leter date. In support of this, the Counsel have cited the judgment of the High Court of Rajasthan in the matter of Oriental Insurance Company Ltd. v. Methi and others: 2003 ACJ 2008 , whereby it has been held that policy was taken on 12.8.1988 and premium amount was deposited with authorized agent of Insurance Company on the same day, but the amount was deposited by the agent on 16.8.1988 as between 12.8.1988 and 16.8.1988 there were holidays. Therefore, the policy is effective from 12.8.1988 and the Insurance Company is liable to pay compensation. Learned counsel for the respondent No.1 has also cited the judgment of this High Court in the matter of National Insurance Company Ltd. Korba v. shadma begum and others: 2001 (1) Du. Mu. Pra. 93, in which it has been held that if the policy is not issued by the Insurance Company within two days of the deposit of the premium that would not mean that there was no privity of contract between the policies, Insurance Company is liable to pay compensation. 8. Learned counsel for the appellant has cited the judgment of Hon 'ble Allahabad High Court in the matter of United India Insurance Company v. Shadma Begum and others: 2002 ACJ 1185 , whereby it has been held that when the agent of the Insurance Company received premium in cash on 11.5.1995 and issued cover note accordingly. 8. Learned counsel for the appellant has cited the judgment of Hon 'ble Allahabad High Court in the matter of United India Insurance Company v. Shadma Begum and others: 2002 ACJ 1185 , whereby it has been held that when the agent of the Insurance Company received premium in cash on 11.5.1995 and issued cover note accordingly. Insurance Company issued policy covering the period from 29.5.1995 to 28.5.1996 and earlier the vehicle was insured for the period from 11.5.1994 to 10.5.1995. The liability of the Insurance Company starts from the date when the cover note was issued and the Insurance Company is liable to pay compensation for the accident, which took place on 24.5.1995. But in the present case, it was told by the insurer that the vehicle has been insured up to 21.5.2001 and on his direct instruction cover note was issued covering the period from 22.5.2001 to 21.5.2002. Therefore, the insl1rer cannot get benefit against his instruction taking help of the judgment cited in the matter of United India Insurance Co. Ltd.. v. Shadma Begum and others (supra). 9. Learned counsel for the respondent has also placed reliance in the matter of Oriental Insurance Company Ltd. v. Dharam Chand and others: 2010 ACJ 2569. where by the apex Court has held that premium cheque was received by the Insurance Company at 4.00 p.m. on 7.5.1998 and cover note issued in which it was mentioned that insurance would commence from 8.5.1998. Vehicle met with accident at 8.30 pm on 7.5.1998. The Insurance Company is liable to pay compensation as insurance has commenced from the time cheque was received. Learned counsel for the respondent No.1 has also cited the judgment of the apex Court in the matter of New India Assurance Company Ltd. v. Ram Dayal and others: 1990 ACJ 545, in which it has been held that the liability of the Insurance Company begins from the previous midnight of the date of insurance. 10. Learned counsel for the Insurance Company Respondent No.2 has submitted that since there is specific date mentioned by the insurer for stating the period of insurance, Insurance Company is not liable to pay compensation before that date. 10. Learned counsel for the Insurance Company Respondent No.2 has submitted that since there is specific date mentioned by the insurer for stating the period of insurance, Insurance Company is not liable to pay compensation before that date. Learned counsel for the respondent No.2 has cited the judgment of the apex Court in the matter of Oriental Insurance Company Ltd. v. Sunita Rathi and others: AIR 1998 SC 257 , whereby it has been held that the policy of insurance issued on the day of accident but sometime after accident and there is clear mention in policy of date and also time from which it becomes effective. In view of clear mention of time in policy occasion to anti time it to previous midnight does not arise, insurer is not liable. The judgment cited by learned counsel for the appellant and learned counsel for the respondent No.1 in which the premium amount was paid and the insurance was to begin from the time of payment of premium on the next day. But in the present case, cover note was issued after clear mentioning the date of beginning of insurance i.e. 22.5.2001 although the cover note was issued on 15.5.2001. Further same time was mentioned on this direction of appellant as he has told that vehicles was insured with the New India Insurance Company up to 21.5.2002. While given the Vehicle on supurdgi bank guarantee of Rs. 15,000/- ordered on the ground that the vehicle was not insured on the date of accident. 11. Considering the above judgments passed in the case of Oriental Insurance Company Ltd. v. Sunita Rathi and others (supra) is applicable to the facts of the present case being a judgment passed by the Bench comprising three Hon'ble Judges of the Supreme Court. Therefore, the learned Tribunal has not committed any error in passing the award against the appellant owner of the vehicle. Therefore. I find that there is no infirmity in the impugned award. The appeal is therefore. dismissed. Parties shall bear their own costs.