This appeal at the instance of Insurance Company is directed against an award dated 29.5.1993 passed by the Motor Accident Claims Tribunal (Auxiliary), Rajkot in Claim Case No.294 of 1992 thereby disposing of an application under Section 140 of the Motor Vehicles Act, 1988 by awarding a sum of Rs.12,000/- with interest @ 15% p.a. from the date of application till realization of the amount with further direction that the driver, owner and the insurer of the vehicle would be jointly and severally liable to pay the amount. 2. Being dissatisfied, the Insurance Company has come up with the present appeal.
3. Mr. Valmik M. Vyas, learned counsel appearing on behalf of Mr. Sunil B. Parikh, has taken a pure question of law in support of this appeal. According to Mr. Vyas, in the case before me, the accident having occurred at 8.00 in the morning at Rajkot on 11.1.1990 and the insurance having been taken on the selfsame day, the Tribunal below committed substantial error of law in holding that the Insurance Company was liable to pay the amount. Mr. Vyas contends that in the city of Rajkot and even in all the cities in the State of Gujarat, offices are not opened before 10.00 in the morning and the accident having occurred at 8.00 in the morning, in this case it has been established beyond reasonable doubt that the accident had occurred prior to taking of the Policy. Mr. Vyas contends that the Tribunal below committed substantial error of law in relying upon the decision in the case of Maya Devi v. Hoob Raj, reported in 1987 (1) ACC 33, a decision of the Punjab & Haryana High Court in holding that the vehicle was insured at the time of accident. In support of his contention, Mr. Vyas has placed strong reliance upon the decision of the Supreme Court in the case of National Insurance Company Limited v. Sobina Iakai and others, reported in 2007 ACJ 2043.
4. None appears on behalf of the respondents inspite of service of notice.
5. After hearing Mr. Vyas appearing on behalf of the appellant and after going through the materials on record, I find that there is no dispute that the accident had taken place at 8.00 a.m. on 11.1.1990 and the insurance was taken also on the selfsame day. Therefore, only question that falls for determination in this appeal is whether at the time of accident, the Insurance Company had already entered into an agreement of coverage of insurance.
6. By this time, the Supreme Court has laid down that in absence of any specific time mentioned in the insurance coverage, the contract would be operative from the midnight of the day by operation of the provisions of General Clauses Act [National Insurance Company Limited v. Jikubhai Nathuji Dabhi, 1997 ACJ 351 (SC)]. It is also pointed out by the Supreme Court that if any specific time is mentioned in the coverage, in that case, the insurance should commence from the time mentioned in the agreement. But all those decisions were passed in cases where there was no other evidence available on record to indicate the actual time of entering into the agreement of insurance and in such circumstances, the presumption of law was applied.
7. In the case before me, it is true that no time is mentioned in the coverage as regards time of commencement. Mr. Vyas, however, tried to impress upon me by submitting that since the proceeding was one under Section 140 of the Motor Vehicles Act, his client did not give detailed evidence as regards commencement of the insurance coverage and was under the impression that in the final proceedings under Section 166 of the Act, his client would get full opportunity of producing relevant papers showing that the application for insurance was received by his client at 11.30 a.m.
8. Mr. Vyas, therefore, prayed for setting aside the award impugned and remanding the matter back to the Tribunal for giving further opportunity to his client to lead evidence in support of the claim that there was no valid coverage of insurance at 8.00 a.m. in the morning.
9. I am quite alive to the position of law that an appellate Court should not set aside the order impugned and to remand the matter for filling up lacuna of a party. But at the same time, I cannot lose sight of the fact that in the case before me, the accident had taken place at 8.00 in the morning and in the State of Gujarat, in the month of January, ordinarily, no office is opened at that point of time. Therefore, the owner also cannot evade his responsibility to explain how prior to 8.00 in the morning, he could have a new insurance coverage.
10. If it appears that at the time of accident, there was really no chance of taking insurance, the owner of the vehicle cannot get the benefit of insurance taken on the selfsame day after the accident by relying upon the presumption under the General Clauses Act. I find that the proceeding under Section 166 of the Act is yet to be decided on merits and it is rightly contended by Mr. Vyas that if this decision of the Tribunal under Section 140 of the Act is affirmed, the same would be res judicata in the proceedings under Section 166 of the Act. It is not the law that the presumption under the General Clauses Act is conclusive. Therefore, the parties by leading evidence can place the actual time of taking coverage on record. It is also not the law that the parties to insurance are not permitted to lead any evidence as to the actual time of offer and acceptance of the proposal of insurance.
11. Therefore, it is a fit case where an opportunity should be given to the parties to lead evidence on the question whether at the time of accident, the owner of the vehicle had already taken insurance though the accident had occurred at 8.00 in the morning.
To pronounce a just order, in my opinion, the aforesaid evidence is necessary. If it appears from evidence that at the time of accident, there was no proposal of the insurance at the instance of the insured, he cannot get the benefit of insurance by relying upon the presumption of the General Clauses Act.
12. In such circumstances, I set aside the award impugned and remand the matter back to the Tribunal for deciding the question as to whether at the time of accident at 8.00 in the morning, there was any valid coverage of insurance taken by the owner of the vehicle. For the above purpose, the parties will be permitted to lead fresh evidence and the Tribunal will arrive at appropriate finding after taking into consideration the entire evidence on the above point that will be led. Since the proceedings under Section 166 of the Act are still pending, I direct that this matter should be heard along with the proceedings under Section 166 of the Act.
13. I make it clear that I have not gone into the merits of the claim of the Insurance Company. The learned Tribunal while deciding the question will not be influenced by any of the findings recorded herein while accepting the submission of Mr. Vyas that the matter should be remanded back.
14. With the above observation, the appeal is allowed. The matter is remanded back. If the amount has already been deposited or kept in fixed deposit by the Tribunal pursuant to any order passed by this Court, the same should be refunded back to the Insurance Company with the accrued interest thereon.
15. Let the R & P be sent back to the Tribunal below immediately.
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[Bhaskar Bhattacharya, Acting C.J.] Savariya