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Himachal Pradesh High Court · body

2018 DIGILAW 299 (HP)

United India Insurance Company Limited v. Shani

2018-03-12

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The Insurer of the offending vehicle is aggrieved, by the fastening, of, the apposite indemnificatory liability, upon it, by the learned Motor Accidents Claims Tribunal-III, Una, vis-a-vis the compensation amount, assessed, under impugned award, in favour of the claimants. 2. The ill fated accident, involving, the offending vehicle, occurred on 14.06.2010 at about 3.50 p.m. An insurance cover note executed qua it inter se the owner thereof, and, the insurance company concerned, is comprised in Ex. Rx, wherein, the date of execution thereof is recited, as 14.06.2010 and the time of its issuance is recited as 3.00 p.m. The learned Tribunal concerned relied, upon, a decision rendered by a Coram of two Hon'ble Judges, of the Hon'ble Apex Court, reported in 2010, ACJ 2659, titled as Oriental Insurance Company ltd. vs. Dharam Chand and others, (i) wherein, it has been held that given the cheque for the premium amount being received by the company, at 4.00 p.m. on 7.5.1998, it rendered valid, the imposition of fastening of liability vis-a-vis the compensation amount, upon, the insurance company, (I) dehors recitals occurring, in column No.3 and 4 of the apt cover note qua the commencement of the policy, being recoknable from 8.5.1998, hence, a day subsequent to the accident. The learned counsel appearing for the insurance company, has contended, on strength of a verdict, rendered by Hon'ble three Judges Bench, of the Hon'ble Apex Court, reported in (1999)7 SCC 575 , titled as New India Assurance Co. Ltd. Versus Sita Bai (Smt.) and others, relevant paragraphs No.4, 5, 6 and 7 whereof are extracted hereinafter:- “4. The proposal for insuring the vehicle in question was made by the owner of the vehicle on 16.4.1987 at 2100 hours. The cover note was issued by the appellant in respect of that vehicle, being No.P/703802 on 16.4.1987 at 2100 hours. The Insurance Policy (Exh. P-5) was later on issued in which also the date of commencement of the insurance policy was recorded as 16.4.1987 (2100 hours). The accident, in question, in which Smt. Salta Bai received fatal injuries had admittedly occurred at 10.00 A.M. on 16.4.1987. i.e., much before the commencement of the insurance policy. 5. The High Court opined that the insurance policy dated 16.4.1987 covered the period of the accident also because the policy would be deemed to have commenced at midnight of 15.4.1987 and 16.4.1987. i.e., much before the commencement of the insurance policy. 5. The High Court opined that the insurance policy dated 16.4.1987 covered the period of the accident also because the policy would be deemed to have commenced at midnight of 15.4.1987 and 16.4.1987. The High Court in taking this view relied upon the judgment in Ram Dayal’s case, (1990)2 SCC 680 . 6. The correctness and applicability of the judgment in Ram Dayal’s Case (Supra) came up for consideration before this Court subsequently in a number of cases. In New India Assurance Co. Ltd. v. Bhagwati Devi and Ors., (1998)6 SCC 534 , a three-Judge Bench of this Court relied upon the view taken in National Insurance Co. Ltd. v. Jukubhai Nathuji Dabhi, 1997 (1) SCC 66 ), 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’s case, 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 become 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 because effective from the time mentioned in the cover note the policy itself. The judgment in Jikubhai’s case (supra) has been subse-quently followed in Oriental Insurance Co. Ltd. v. Sunita Rathi & Ors., (1998)1 SCC 365 by a three-Judge Bench of this Court also. 7. In the fact situation of this case since the commencement of the policy at 2100 hours on 16.4.1987 was after the accident which had occurred at 1000 hours on 16.4.1987, the Tribunal as well as the High Court were wrong in burdening the appellant-Insurance Company, with any liability under Section 92-A of the Motor Vehicles Act by applying the law laid down in Ram Dayal’s case, which, on facts, had no application to this case. This case is squarely covered by the judgment in Jikhubhai’s case and the other judgments following it as noticed above. The impugned order against the appellant cannot thus be sustained. The same is hereby set aside. This case is squarely covered by the judgment in Jikhubhai’s case and the other judgments following it as noticed above. The impugned order against the appellant cannot thus be sustained. The same is hereby set aside. The appeal consequently succeeds and is allowed in so far as the appellant is concerned. No costs.” (ii) wherein, it stands vividly pronounced, (a) that the date of commencement, of, the insurance policy, elucidated in the cover note issued vis-a-vis the vehicle concerned, rendered the policy concerned, to thereat acquire binding force, or the relevant policy coming into force, only, from the date of its commencement, as, mentioned in the cover note concerned. He further contends, that, with Ex. Rx, exhibit whereof comprises, the cover note in pursuance, whereof the policy of insurance, hence, was issued, elucidating therein, 15.06.2010, to be the date/time, of commencement of the policy, (iv) whereas, with the relevant accident, occurring, a day earlier vis-a-vis, the date of commencement of the cover note, borne in Ex. Rx, hence, the apposite risks contractually agreed to be covered by the Insurance company vis-a-vis the offending vehicle, not, falling within the ambit of Ex. Rx nor the apposite indemnificatory liability being fastenable upon the insurance company. However, the aforesaid submission addressed before this court, by the counsel, for the insurance company is anvilled, upon, his fragmentarily reading, paragraph No.4 and 5, of, Sita Bai's case (supra), (v) and from his remaining unmindful to the exception thereof, being carved in paragraph No.6 and 7 thereof, (vi) exception whereof, is comprised in the factum, of, the aforesaid rule existing in paragraphs No.4 and 5, of Sita Bai's case (supra), rule whereof comprises the tenet qua the reckonable date for concluding qua the timing of coming into force, of the policy of insurance, being the recited date, of, commencement thereof, especially in the cover note. Exception whereto being (a) of an apposite special contract, to the contrary, marked, by a recited date qua its purchase, rather, dehors the date of commencement thereof depicted, in Ex. Rx, being, the relevant date, for gauging the applicability, and, acquisition of force, of the relevant contract of insurance. Now at with RW2, in his deposition, making, a disclosure, that, the insurance policy was issued, in pursuance, to Ex. Rx, thereupon, it has to be guaged from, Ex. Rx, being, the relevant date, for gauging the applicability, and, acquisition of force, of the relevant contract of insurance. Now at with RW2, in his deposition, making, a disclosure, that, the insurance policy was issued, in pursuance, to Ex. Rx, thereupon, it has to be guaged from, Ex. Rx, exhibit whereof, is the apposite cover note qua (a) it embodying recitals vis-a-vis the time, of its purchase, (b) wherefrom, it can further be guaged qua the time, of, its being bought or purchased, thereafter wherefrom, it would erupt qua it containing, the date other than the one, of commencement, of policy concerned also whether date, if any, of purchase of the policy, hence, being a date prior to the occurrence of the ill fated accident, (c) whereupon, it can be concomitantly guaged, that, with the date of its purchase, being evidently prior to the, occurrence of the ill fated accident, hence, immediately on its purchase, it would acquire force, (d) hence occurrence of the relevant accident subsequent thereof, falling within its ambit also rendering valid, the imposition of the indemnificatory liability upon the insurance company. In making the aforesaid effort, with at the end of Ex. Rx, the date of its issuance being 14.10.2010, and, time of its issuance being 3.00 p.m. Consequently, the aforesaid recitals, occurring therein subsume the effects, of prior thereto recitals occurring therein qua date/time of the commencement of the policy, also it comprises a special contract to the contrary vis-a-vis the earlier thereto date/time mentioned in Ex. Rx, hence, renders it to fall within the ambit, of, paragraphs No. 6 and 7 of the Sita Bai's case (supra), (e) whereupon it is reiteratedly construable, to be purchased on 14.6.2010 at 3.00 p.m., whereupon, it acquirea force, from the date of its purchase, and, is also construable to be valid thereat. Consequently, the submission aforesaid, of the learned counsel appearing for the insurer, has no force and it is rejected accordingly. 3. The above discussion unfolds the fact that the conclusions as arrived by the learned tribunal are based upon a proper and mature appreciation of the relevant evidence on record. While rendering the findings, the learned tribunal has not excluded germane and apposite material from consideration. 4. For the foregoing reasons, there is no merit in the instant appeal and it is accordingly dismissed. The impugned award is maintained and affirmed. While rendering the findings, the learned tribunal has not excluded germane and apposite material from consideration. 4. For the foregoing reasons, there is no merit in the instant appeal and it is accordingly dismissed. The impugned award is maintained and affirmed. All pending applications also stand disposed of. Records be sent back forthwith.