National Insurance Co Ltd vs Sukhidevi Bhavarlal Bothra & 4 Defendants

1.0 This appeal is directed against the judgement and award dated 07.10.2002 passed by the City Civil Court No.11, Ahmedabad in Motor Accident Claim Petition No. 355 of 1996 wherein the learned Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 140000/­ along with interest at the rate of 9% per annum from the date of claim petition till realization.

2.0 On 12.02.1996 Bhavarlal Bijraj Bothra was travelling as a pillion rider on scooter bearing No. GJ­1J­3584 which was driven by his son Ashokkumar. They were going to their shop in the New Cloth Market in the Raipur Area in the city. While they were passing near Sarangpur circle, one Maruti Car bearing No. R.T.C. GJ­1RR­6017 came in full speed in a rash and negligence manner from the back side and dashed with the scooter. As a result of this Bhavarlal who was riding as pillion rider was thrown off the scooter on the tar road and received grievous injures. He was shifted to the hospital . Ultimately he died after prolonged treatment. The heirs of the deceased therefore filed the aforesaid claim petition wherein the learned Tribunal passed the aforesaid award which is challenged in the present appeal.

3.0 Learned advocate for the appellant­Insurance Company submitted that there was material non­disclosure before the policy was taken in view of the fact that the policy was taken after the accident had occurred. The accident had occurred at about 10.30 a.m. on 12.02.1996 as it is evident from F.I.R whereas the proposal Form Exh. 68 for taking the insurance had been received by the company at 2.45 p.m. on the same day as it is evident from Exh. 91 Insurance policy issued by the appellant; that at Exh. 74 where owner of the vehicle stated that he has gone to the office of the Insurance Company at 11 o' clock and the time was mentioned at 2.45 p.m. Learned advocate for the appellant placed reliance on the decision of the Hon'ble Supreme Court in case of New India Assurance Co. Ltd. versus Sita Bai and others reported in 2000 ACJ 40. In para 7 it is held as under:

“7. In the fact situation of this case since the commencement of the policy at 21.00 hours on 16.04.1987 was after the accident which had occurred at 10.00 hours on 16.04.1987, the Tribunal as well as the High Court were wrong in burdening the appellant Insurance Company with any liability under Section 92­A of the Motor Vehicles Act by applyign the law laid down in Ram Dayal's case, 1990 ACJ 545(SC) which on facts, had no application to this case. This case is squarely covered by the judgement in Jikubhai's case, 1997 ACJ 351 (SC) and the other judgements following it as notice above. The impugned order against the appellant cannot thus be sustained. The same is hereby set aside. The appeal consequently succeeds and is allowed insofar as the appellant is concerned. No costs.

4.0 Learned advocate for the appellant therefore, submitted that in view of the above decision the appellant is not liable to make payment of compensation to the claimants.

5.0 Learned advocate appearing for the respondent submitted that at 2.45 p.m. the insurance policy was taken on the same date before the accident had taken place. Therefore, view taken by the learned Tribunal is just and proper and the appeal may be dismissed.

6.0 Heard learned advocates for the parties and perused the documents on record. Considering the evidence on record, more particularly evidence of the owner of the vehicle stating that he has gone to the office of insurance company after accident i.e. 11.00 hours, the contention of the appellant is required to be accepted. In Exh. 74, the owner of the vehicle himself stated that he has gone to the office of the insurance company at 11.00 hours. Therefore, as per the ratio laid down in the case of New India Assurance Co. Ltd. versus Sita Bai and others (supra), the insurance company is required to be exonerated.

7.0 In view of the above discussion, it follows that the insurance company requires to be exonerated from its liability from payment of compensation to the claimants. Since no arguments were advanced on quantum of compensation, I do not express any opinion on that aspect. The appeal is allowed. The impugned judgement and award passed by the Tribunal is quashed and set aside qua the imposition of liability on the appellant­Insurance Company to make the payment of compensation. The amount deposited by the Insurance Company shall be refunded with proportionate costs and interest. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimants, the same shall not be recovered from the original claimants and the Insurance Company shall be at liberty to recover the same from the owner of the vehicle. If the amount is not withdrawn by the original claimants, it will be open to them to recover the same from the owner of the vehicle. The award of the Tribunal is modified accordingly. The amount, if any, lying with the Registry of this Court shall be transmitted to the concerned Tribunal forthwith. No order as to costs.

(K.S.JHAVERI, J.) niru*