Court No. - 25
Reserved on 30.11.2018 Delivered on 20.12.2018
Case :- FIRST APPEAL FROM ORDER No. - 256 of 1996
Appellant :- National Insurance Co. Ltd.
Respondent :- Shyam Lal And Ors.
Counsel for Appellant :- P.K. Mukerji,Pradeep Kumar Sinha
Counsel for Respondent :- K.P. Shukla
Hon'ble Salil Kumar Rai,J.
1. In view of the office report dated 29.11.2018 service of notice on respondent No. 1 is deemed sufficient.
2. List has been revised. Learned counsel for the appellant is present. No one has put in appearance on behalf of respondent No.
1. Respondent Nos. 2 and 3 are represented by Shri K.P. Shukla, Advocate.
3. The present appeal has been filed by the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, 'Act, 1988') against the judgment and award dated 7.12.1995 passed by the Motor Accident Claims Tribunal/Special Judge, Jhansi (hereinafter referred to as, 'Tribunal') in Motor Accident Claim Petition No. 262 of 1993.
4. Motor Accident Claim Petition No. 262 of 1993 was filed by respondent No. 1 under Section 166 of the Act, 1988 claiming a compensation of Rs. 5 lacs from the defendant-respondents inter alia alleging that in the midnight (about 12:15 a.m.) of 15/16 February, 1993 the claimant-respondent No. 1 was injured in an accident caused due to the rash and negligent driving of Two Seater No. U.P. 93/7086 (hereinafter referred to as, 'vehicle'). Respondent Nos. 2 and 3 are the owners of the vehicle and the vehicle was insured with the appellant. In his claim petition, respondent No. 1 claimed Rs. 60,000/- as medical expenses incurred by him on treatment of his injuries, Rs. 1,40,000/- for pain and agony and Rs. 3 lacs for loss of income caused due to the injuries suffered by him in the accident.
5. The defendants, i.e., the respondent Nos. 2 and 3 filed their written statements denying the claim of respondent No. 1. The Tribunal framed issues regarding negligence of the driver of the vehicle in causing the accident and the liability of the insurance company to pay compensation to the claimant-respondent No. 1 as well as the amount of compensation to which the claimant was entitled. Issue regarding the liability of the insurance company to pay compensation depended on the finding of the Tribunal on issue No. 5 which was whether, at the time of accident, the vehicle was insured with the appellant.
6. In its judgement and award dated 7.12.1995, the Tribunal held that respondent No. 1 had suffered injuries in the midnight (at about 12:15 p.m.) of 15/16 February, 1993 in an accident caused due to rash and negligent driving of the vehicle and, at the time of the accident, the driver of the vehicle had a valid driving license and the vehicle was insured with the appellant. Consequently, the Tribunal awarded a compensation of Rs. 50,000/- to the claimant-respondent No. 1 and held the insurance company liable to pay the same after holding that the contract of insurance between the appellant- insurance company and the owner of the vehicle was operative from the midnight of 15/16 February, 1993 even though the Insurance Policy specified that the policy was operative from 12:00 noon on 16.2.1993.
7. During the course of argument, the learned counsel for the appellant-insurance company has restricted his argument only to issue No. 5 framed by the Tribunal, i.e., whether at the time of the accident, the vehicle was insured with the appellant and has not pressed the appeal on other issues. In the circumstances, I am not entering into the merits of the findings recorded by the Tribunal on other issues and have proceeded to consider the argument of the learned counsel for the appellant regarding the insurance of the vehicle at the time of accident.
8. It was argued by the learned counsel for the appellant that from the policy of insurance submitted before the Tribunal, it was evident that the vehicle was insured from 12 noon on 16.2.1993 and as specific time was provided in the policy of insurance, therefore, the policy can not be operative from before the recorded time and can not be considered to be operative from the midnight of 15/16 February, 1993. It has also been argued by learned counsel for the appellant that admittedly the accident occurred at 12:15 a.m. in the midnight of 15/16 February, 1993, and therefore, as the policy was not operative at the time of accident, the appellant was not liable to pay compensation to the claimant and the appellant is entitled to institute proceedings to recover the aforesaid amount from respondent Nos. 2 and 3. In support of his argument learned counsel for the appellant has relied on the judgement of the Supreme Court in J. Kalaivani and Others Vs. K. Shivashankar and Another, 2002 (1) T.A.C. 839 (S.C.).
9. I have considered the submission of learned counsel for the appellant and also perused the record.
10. It is evident from the award of the Tribunal that the accident causing injuries to the claimant-respondent No. 1 occurred on 12:15 a.m., i.e., in the midnight of 15/16 February, 1993. It is also evident from the findings of the Tribunal that the policy of insurance submitted before the Tribunal showed that the contract of insurance was operative from 12 noon on 16.2.1993. However, the Tribunal held that the contract of insurance shall be considered to be operative from the midnight of 15-16 February, 1993, and therefore, the insurance company was liable to pay compensation to the claimant. The aforesaid opinion of the Tribunal is contrary to the judgement of the Supreme Court in J. Kalaivani (Supra). The observations of the Supreme Court in paragraph 5 of the aforesaid judgement are reproduced below :-
“5. Three decisions have been placed before us. In New Indian Assurance Co. Ltd. v. Ram Dayal and Ors. J.T. 1990 (2) S.C. 164 : 1990 (2) T.A.C. 41, it was held that in the absence of any specific time mentioned in that behalf, the contract of insurance would be operative from the midnight of the day by operation of the provisions of the General Clauses Act, 1 1897. In National Insurance Co. Ltd. v. Jijubhai Nathuji Dabhi (Smt.) and Ors. 1997 (1) S.C.C. 66, a three Judge Bench of this Court approved the legal position adopted in the said decision. However, learned judges observed thus:
"But in view of the special contract mentioned in the insurance policy, namely it would be operative from 4.00p.m. on 25th October, 1983 and the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company."
This question was again considered by another three Judge Bench of this Court in New India Assurance v. Bhagwati Devi, 1998 (8) S.C.C. 534 : 1999 (2) T.A.C.
241 and after following the dictum in the earlier decision that bench has stated thus:
"...The principle deduced is thus clear that should there be no contract go contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following. However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this Court. There is, thus, nothing further for us to deliberate upon."
(Emphasis added)
11. In view of the aforesaid judgement of the Supreme Court, the judgement and award dated 7.12.1995 so far as it fixes the liability on the insurance company and disallows it to recover the paid amount from the owners of the vehicle, i.e., respondent Nos. 2 and 3 is contrary to law and is hereby set aside. The judgement and award dated 7.12.1995 passed by the Tribunal is modified to the extent that the appellant-insurance company shall be entitled to recover from respondent Nos. 2 and 3 the amount paid by it as compensation to respondent No. 1.
12. With the aforesaid observations, the appeal is allowed.
Order Date :- 20.12.2018
Anurag/-