Dismissed

The Divisional Manager, National Insurance Co. Ltd., near v. Harijana Parameswarudu at Paramesh

Andhra Pradesh HC24 Jul 2021MACMA/1905/2005

Case brief

AI extract

What is this about?

The High Court dismissed an insurance company's appeal against an award by the Motor Accident Claims Tribunal. The Court held that the policy coverage period explicitly stated started at 12 a.m., covering the accident, and rejected the contention that policies start at sunrise. The Court also found the claimant cannot suffer due to the vehicle owner's lapse in cheque realization.

What did the court decide?

Appeal dismissed; Claims Tribunal's award and decree maintained.

The Divisional Manager, National Insurance Co. Ltd., near… — Insurance | Andhra Pradesh HC (2021)

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HON’BLE SRI JUSTICE NINALA JAYASURYA

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M.A.C.M.A.No. 1905 of 2005

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JUDGMENT:-

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Aggrieved by the order and decree dated 30.07.2004 in M.V.O.P.No.173 of 2003 passed by the V Additional District Judge(Fast Track Court)-cum-Motor Accident Claims Tribunal, Kurnool (herein after referred to as ‘Claims Tribunal’) , the present appeal has been preferred by the insurance company.

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For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Claims Tribunal in the original petition.

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The petitioner/claimant one Mr.Harijana Parameswarudu @ Paramesh seeking compensation of Rs.50,000/- for the injuries sustained by him in a road accident that occurred on 26.12.2002, filed the claim petition in M.V.O.P.No.173 of 2003. In the said petition, it is averred that on 26.12.2002 at about 4-00 a.m., when the petitioner and others were proceeding in an auto bearing No.AP21-T-7638 towards A.Gokulapadu village, a lorry bearing No.AP16-TT-767 driven in a rash and negligent manner came in the opposite direction, dashed against the auto and as a result of the accident, the petitioner and two others sustained multiple and grievous injuries.

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The 1^st respondent-owner of the lorry remained exparte. The 2^nd respondent-insurance company filed its counter inter alia stating that the lorry bearing No.AP16-TT-767 was not involved in any accident much less on 26.12.2002, the petitioner/claimant in collusion with the police officials have falsely implicated the said lorry in the accident and infact

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as per the First Information Report, the crime vehicle was AP10-T-768. It was further stated that the 1^st respondent by suppressing the fact that the lorry bearing No.AP16-TT-767 was involved in the accident has issued a cheque on 26/12/2002 and accordingly, a cover note No.952861 dated 26/12/2002 was issued at about 7-45 p.m., and further that the said cheque was dishonoured and after due intimation to the 1^st respondent, cancelled also. Subsequently, the 1^st respondent again insured his vehicle by paying the amount through Demand Draft on 18/01/2003 and as such the 2^nd respondent issued a fresh cover note on 19/01/2003 covering the period from 19/01/2003 to 18/01/2004. The 2^nd respondent, accordingly, denied the liability of the insurance company as the material facts were suppressed and that the policy was not effective as on the date of accident.

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On the basis of pleadings, the Claims Tribunal framed the following issues for consideration:

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1. Whether the accident occurred due to rash and negligent driving of the driver of lorry bearing No.AP16-TT-767(10 tyres lorry)?

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1. Whether the petitioner is entitled to compensation and if so, to what amount and from which of the respondents?

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1. To what result?

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In support of his case, the petitioner examined himself as P.W.1 and got marked Exs.A1 to A5. On behalf of the insurance company, R.W.1 was examined and Exs.B1 to B7 have been marked.

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The Claims Tribunal after considering the oral and documentary evidence, answered the issues in favour of the petitioner/claimant and partly allowed the claim by awarding a sum of Rs.16,567/- with

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proportionate costs and interest @ 9% p.a., from the date of petition till the date of realization. Against the said award and decree, the instant appeal is preferred.

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While reiterating the grounds raised in the appeal, the learned counsel for the insurance company contends that the 1^st respondentowner of the vehicle suppressed the material facts with regard to occurrence of the accident on 26/12/2002 in the early hours, approached the insurance company on the same day evening and obtained the policy of insurance by issuing a cheque dated 26/12/2002. He further submits that even the said cheque was returned on the ground of ‘insufficient funds’ and therefore the insurance company cancelled the policy as the issuance of cover note and the consequential policy are subject to realization of the cheque. He further submits that the 1^st respondent in view of the dishonor of the cheque, paid the premium amount by way of Demand Draft on 18/01/2003 and the insurance company issued a fresh cover note on 19/01/2003 and subsequently policy covering the period from 19/01/2003 to 18/01/2004. He contends that thus policy in respect of vehicle bearing No.AP16-TT767 was not in force as on the date of accident and therefore the insurance company is not liable to pay any compensation. He further submits that even assuming, the policy would come into effect on 26/12/2002 after sunrise i.e., 6-00 a.m., as per the customary practices prevailing in India and not as per Gregorian calendar. He submits that as the accident occurred at 4-00 a.m. on 26/12/2002 before sunrise, the insurance company cannot be fastened with any liability and that the finding of the Claims Tribunal in this regard is unsustainable. He also submits that infact, there is collusion between the claimant and owner of

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the vehicle and though the vehicle in question was not involved in the accident, for wrongful gain, the said lorry bearing No.AP16 TT 767 was brought into picture. He submits that as there is suppression of facts and as the vehicle in question was not having valid insurance policy at the time of accident, the insurance company cannot be made liable for payment of compensation and the award and decree of the Claims Tribunal is liable to be set aside.

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Perused the material, both oral and documentary available on record. The contentions of the learned counsel for the appellant are considered with reference to the said material and the legal aspect that falls for consideration by this Court is:

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“Whether the policy of insurance comes into operation from the sunrise on the date of issuance of policy or from the specific time mentioned in the policy?”

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In the present case, a cheque(Ex.B3) was issued by the owner of the vehicle/lorry bearing No.AP 16-TT-767 towards insurance premium on the basis of which a cover note(Ex.B1) was issued on 26/12/2002 followed by policy bearing No.550400/31/02/6307261 dated 31/12/2002(Ex.B2) covering the period “from 26/12/2002 at 12 a.m., to midnight of 25/12/2003” which clearly indicates the policy covers the period during which the accident occurred i.e., at 4-00 a.m. on 26/12/2002. It is not in dispute that the said cheque was returned vide cheque return memo dated 13/01/2003(Ex.B4), but it is the contention of the learned counsel for the insurance company that even assuming, the policy would come into force from the sunrise on the date of issuance of policy.

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In the case of New India Assurance Co.Ltd., v. Ram Dayal and others¹ , the Hon’ble Supreme Court while affirming the view taken by the Punjab and Haryana High Court held to the effect that the insurance policy obtained on the date of the accident becomes operative from the commencement of the date of insurance i.e., from the previous mid night and since the accident took place on the date of the policy, the insurer became liable.

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Further in New India Assurance Co., v. Bhagwati Devi and Others² , the Hon’ble Supreme Court while referring to the earlier judgment in National Insurance Co. Ltd., v. Jikubhai Nathuji Dabhi³ held to the effect that a insurance policy becomes operative from the previous mid night, when bought during the day following, in the absence of a contract to the contrary and in case there is mention of a specific time of its purchase, then a special contract to the contrary comes into being and the policy would be effective from the mentioned time.

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In the present case, as is evident from Ex.B2, the policy commences and covers the period “from 26/12/2002 at about 12-00 a.m. to mid night of 25/12/2003”.

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Applying the expression of the Hon’ble Supreme Court in the above referred judgment, as the period of insurance coverage is mentioned in clear terms, the policy of insurance would come into force from the said period and the contention of the learned counsel for the

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1 (1990) 2 SCC 680

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2 (1998) 6 SCC 534

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3 (1997) 1 SCC 66

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appellant that the insurance policy would come into force from 26/12/2002 after 6-00 a.m., i.e., after sunrise as per the Indian customs and practice is not sustainable and accordingly the same is rejected.

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Be that as it may Ex.B2-insurance policy was issued only after issuance of cheque which was returned subsequent to the occurrence of accident and for the default/lapses on the part of the owner of the vehicle, the claimant cannot be made to suffer. Further, as seen from the evidence on record, no steps were taken by the insurance company in view of the dishonor of the cheque and on the other hand a Demand Draft furnished towards the premium amount was accepted and a policy(Ex.B7) in respect of offending vehicle was issued on 19/01/2003. Though the learned counsel for the insurance company argued that the Ex.B1-cover note and Ex.B2-insurance policy were obtained by suppression of facts and further that the lorry in question bearing No.AP16-TT-767 was falsely implicated in the case for wrongful gain, the same merits no consideration in view of the well considered findings recorded by the Claims Tribunal on a detailed examination of the evidence on record. The Claims Tribunal while answering Issue No.1, had dealt with the matter extensively and recorded its conclusion in favour of the claimant and the same warrants no interference by this Court.

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Insofar as the liability is concerned, though the learned counsel for the appellant submitted that the policy was not in force in view of the dishonor of the cheque subsequent to the occurrence of the accident, as opined supra, the claimant cannot be made to suffer for the lapses of owner of the vehicle. If the policy of insurance was obtained by

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suppression of facts or the policy was cancelled due to dishonor of the cheque issued towards premium like in the present case, the claimant cannot be made to suffer and as rightly pointed out by the Claims Tribunal, it is for the insurance company to sue the owner of the vehicle for the acts/lapses on his part. As observed earlier, no such action has been taken by the appellant-insurance company and on the other hand, a policy in respect of the vehicle in question was issued subsequently. Under the said circumstances, the claimant cannot be deprived of compensation, much less against the insurance company. Therefore, the contention of the learned counsel for the appellant that the Claims Tribunal erred in fastening the liability on the insurance company cannot be accepted and the same is accordingly rejected.

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For the foregoing reasons, this Court is of the considered opinion that the award and decree of the Claims Tribunal is well considered, based on material on record, contains cogent reasons and warrants no interference.

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